SUPPLIER’S STATUS. 4.1 The parties acknowledge that neither the Supplier nor the Consultant is the employee, worker, agency worker, agent, partner or servant of the Company (or the Client) and accordingly: (a) this Agreement is not an exclusive arrangement and (subject to clauses 2.1(f) and (if applicable) 6) nothing in this Agreement shall prevent the Supplier or the Consultant from engaging in other services for any third party; (b) the Company is not obliged to put the Supplier or the Consultant forward for consideration by the Client for the provision of services nor is the Supplier or the Consultant obliged to provide services to the Client beyond the termina- tion or expiry of this Agreement; (c) the Supplier shall (and shall procure that the Consultant shall) comply with all legal and fiscal obligations of the country in which the Services are performed including but not limited to obligations under the Pensions Act 2008 and the obligations in clause (d) below, the Working Time Regulations 1998 or local equivalent (if applicable) and any requirement to register residency; (d) the Supplier shall account on a timely basis to the appropriate authorities for all tax (including VAT), National Insurance contributions and social security levies (if any) (or any overseas equivalents of the same) payable in respect of sums paid to the Supplier or by it to the Consultant in connection with this Agreement and shall procure that the Consultant shall also account to the appropriate authorities for all such tax and other sums payable by the Consultant in respect of sums paid to the Consultant which relate in any way to this Agreement; (e) the Supplier shall (and shall procure that the Consultant shall) comply with the provisions of the Immigration, Asylum and Nationality Act 2006 (the “Act”) in all relevant respects and, if the Consultant is subject to immigration con- trol for the purposes of such Act, the Supplier warrants that: (i) it has carried out all pre-employment checks as required under both the Act and UK Border Agency guidance and is satisfied that the Consultant has valid and subsisting leave to enter and remain in the United Kingdom for the duration of this Agreement; (ii) the Consultant is not (in relation to such leave in 4.1(e)(i)) subject to any conditions which may preclude or have an adverse effect on the provision of the Services; it shall notify the Company without delay if any Consultant’s right to work and remain in the UK lapses or is withdrawn for any reason; (f) the Supplier shall, in respect of any substitute consultant supplied pursuant to clause 8.2, carry out the same pre-employment checks and provide the same warranty as set out in clause (e) above; (g) the Supplier warrants, covenants and undertakes that: (i) it is a UK registered company; (ii) all Consultants are paid from a UK bank account held in the name of the Supplier to a UK bank account in the name of the Consultant; (iii) it does not operate a travel and subsistence scheme under which the Consultant(s) are paid expenses on a exempt of tax (or otherwise tax deductible) and NIC basis; (iv) it does not claim under the Employment Allowance scheme in respect of the payment of Secondary (Class 1) National Insurance; (v) it is not a Managed Service Company or a MSC Provider and that the information provided by the Supplier con- cerning the tax status of the Supplier, or the applicability of the MSC Legislation is full and accurate and shall provide such evidence as the Company may from time to time require in relation to compliance with and/or non-applicability of the MSC Legislation; (vi) all Consultants shall be engaged by the Supplier under contracts of service and that no Consultant is (or will be, at any time during this term of this Agreement) be engaged as a sole trader or otherwise on a contract for services or self-employed basis or as a member of a partnership; (vii) in its capacity as the Consultants’ employer all remuneration paid by it to the Consultant(s) shall be paid subject to PAYE tax and Class 1 National Insurance Contributions (primary and secondary). The Company acknowledges that dividend distributions to Consultant(s) shall not be regarded as “remuneration” for the purposes of this sub-clause; (h) if the Supplier receives any notice or communication which suggests that UK PAYE tax or National Insurance has not been properly deducted and accounted for to HM Revenue & Customs by the Supplier or any relevant interme- diary with which the Supplier deals, the Supplier shall, to the extent permitted by law, immediately notify the Company and if appropriate (to be decided in the Company’s sole discretion) the parties shall work together in good faith to re- solve the issue (which shall not constitute any admittance of liability for any reason by the Company). The Supplier shall indemnify the Company for all Losses incurred by the Company as a result of such investigation. (i) the Supplier shall provide the Company with all information reasonably requested by the Company so that the Company can fulfil its legal reporting requirements in respect of payment information required by HMRC in respect of each Consultant. The Supplier warrants that all such information will be accurate and complete when provided. (j) the Supplier agrees that the Company may audit the Supplier during normal business hours on reasonable no- ▇▇▇▇ to verify the Supplier’s compliance with the terms of this Agreement. The Supplier shall provide the Company with all reasonable co-operation, and shall allow the Company to have access to and take copies of the Supplier’s records and documentation, in respect of such audit. (k) the Supplier shall, throughout the Assignment be covered by the appropriate insurances and supply the Compa- ny with evidence of cover on request; (l) the Supplier/Consultant shall, subject to working towards meeting the Client’s objectives, determine generally how the Services shall be supplied. The parties acknowledge and agree that the Supplier is engaged on the basis that its Consultant will perform the Services as an independent contractor not supervised or directed by the Client; (m) the Supplier warrants that it operates on a business to business basis such that the supply it makes under this Agreement is one of independent professional consultancy services to the Company and the Client as customers of its business with the Client not having supervision, direction or control of how the Services shall be supplied. Accordingly, the Supplier agrees that it does not intend or regard the supply of Services made under this Agreement to fall within the scope of the AWR or the Intermediaries Legislation. The Supplier shall notify the Company in writing forthwith if, in its or the Consultant’s opinion, the nature of the Services or the Assignment change (for example, if the Client assumes a supervisory and/or directional role in relation to the Consultant). Upon receipt of such notification the Company reserves the right to terminate the Agreement by notice with immediate effect without liability. The Supplier shall indemnify the Company (and/or, as the case may be, the Client) against any Losses arising from failure to notify the Company of any change in the nature of the Services from that represented by the Supplier to the Company, and as intended by the parties, as at the Start Date including, without limitation, any claim by the Consultant that they are entitled to rights as an agency worker under the AWR; and (n) the Supplier shall indemnify the Company (or, as the case may be, the Client) from and against any Losses which the Company (or, as the case may be, the Client) may suffer or incur as a result of the failure of the Supplier to comply with any of the representations, warranties and/or undertakings in this clause 4 including, without limitation, Losses which they would not have suffered or incurred but for: (i) the Supplier or the Consultant claiming to be; and/or (ii) some official, public body or authority for any purpose regarding the Supplier or the Consultant as, an employee or worker of, or under the supervision, direction or control of, the Company (or, as the case may be, the Client) or otherwise entitled to any rights or benefits that employees or workers enjoy. The Supplier hereby acknowledges that with effect form 6 April 2017 the Off-Payroll IR35 Legislation must be con- sidered in respect of all supplies made by personal service company contractors to Public Sector end clients. Due to uncertainties around whether assignments will fall to be assessed as being Inside IR35 or Outside IR35 the Company reserves the right to terminate the [Assignment] in accordance with clause [ 4.8 ] below and, subject to Client approval, to offer to re-issue a new assignment on an adjusted Net Fee basis.
Appears in 2 contracts
Sources: Limited Company Worker Terms, Umbrella Company Contract
SUPPLIER’S STATUS. 4.1 The parties acknowledge that neither the Supplier nor the Consultant is the employee, worker, agency worker, agent, partner or servant of the Company (or the Client) and accordingly:
(a) this Agreement is not an exclusive arrangement and (subject to clauses clause 2.1(f)) and (if applicable) applicable 6) nothing in this Agreement shall prevent the Supplier or the Consultant from engaging in other services for any third party;
(b) the Company is not obliged to put the Supplier or the Consultant forward for consideration by the Client for the provision of services nor is the Supplier or the Consultant obliged to provide services to the Client beyond the termina- tion termination or expiry expiration of this Agreement;
(c) the Supplier shall (and shall procure that the Consultant shall) comply with all legal and fiscal obligations of the country in which the Services are performed including but not limited to obligations under the Pensions Act 2008 and the obligations in clause (d) below, the Working Time Regulations 1998 or local equivalent (if applicable) and any requirement to register residency;
(d) the Supplier shall account on a timely basis to the appropriate authorities for all tax (including VAT), National Insurance contributions and social security levies (if any) (or any overseas equivalents of the same) payable in respect of sums paid to the Supplier or by it to the Consultant in connection with this Agreement and shall procure that the Consultant shall also account to the appropriate authorities for all such tax and other sums payable by the Consultant in respect of sums paid to the Consultant which relate in any way to this Agreement;
(e) the Supplier shall (and shall procure that the Consultant shall) comply with the provisions of the Immigration, Asylum and Nationality Act 2006 (the “Act”) in all relevant respects and, if the Consultant is subject to immigration con- trol for the purposes of such Act, the Supplier warrants that:
(i) it has carried out all pre-employment checks as required under both the Act and UK Border Agency guidance and is satisfied that the Consultant has valid and subsisting leave to enter and remain in the United Kingdom for the duration of this Agreement;
(ii) the Consultant is not (in relation to such leave in 4.1(e)(i)) subject to any conditions which may preclude or have an adverse effect on the provision of the Services; it shall notify the Company without delay if any Consultant’s right to work and remain in the UK lapses or is withdrawn for any reason;
(fd) the Supplier shall, in respect of any substitute consultant supplied pursuant to clause 8.2, carry out the same pre-employment checks and provide the same warranty as set out in clause (4.1
e) above;
(g) the Supplier warrants, covenants and undertakes that:
(i) it is a UK registered company;
(ii) all Consultants are paid from a UK bank account held in the name of the Supplier to a UK bank account in the name of the Consultant;
(iii) it does not operate a travel and subsistence scheme under which the Consultant(s) are paid expenses on a exempt of tax (or otherwise tax deductible) and NIC basis;
(iv) it does not claim under the Employment Allowance scheme in respect of the payment of Secondary (Class 1) National Insurance;
(v) it is not a Managed Service Company or a MSC Provider and that the information provided by the Supplier con- cerning the tax status of the Supplier, or the applicability of the MSC Legislation is full and accurate and shall provide such evidence as the Company may from time to time require in relation to compliance with and/or non-applicability of the MSC Legislation;
(vi) all Consultants shall be engaged by the Supplier under contracts of service and that no Consultant is (or will be, at any time during this term of this Agreement) be engaged as a sole trader or otherwise on a contract for services or self-employed basis or as a member of a partnership;
(vii) in its capacity as the Consultants’ employer all remuneration paid by it to the Consultant(s) shall be paid subject to PAYE tax and Class 1 National Insurance Contributions (primary and secondary). The Company acknowledges that dividend distributions to Consultant(s) shall not be regarded as “remuneration” for the purposes of this sub-clause;
(h) if the Supplier receives any notice or communication which suggests that UK PAYE tax or National Insurance has not been properly deducted and accounted for to HM Revenue & Customs by the Supplier or any relevant interme- diary with which the Supplier deals, the Supplier shall, to the extent permitted by law, immediately notify the Company and if appropriate (to be decided in the Company’s sole discretion) the parties shall work together in good faith to re- solve the issue (which shall not constitute any admittance of liability for any reason by the Company). The Supplier shall indemnify the Company for all Losses incurred by the Company as a result of such investigation.
(i) the Supplier shall provide the Company with all information reasonably requested by the Company so that the Company can fulfil its legal reporting requirements in respect of payment information required by HMRC in respect of each Consultant. The Supplier warrants that all such information will be accurate and complete when provided.
(j) the Supplier agrees that the Company may audit the Supplier during normal business hours on reasonable no- ▇▇▇▇ to verify the Supplier’s compliance with the terms of this Agreement. The Supplier shall provide the Company with all reasonable co-operation, and shall allow the Company to have access to and take copies of the Supplier’s records and documentation, in respect of such audit.
(k) the Supplier shall, throughout the Assignment be covered by the appropriate insurances and supply the Compa- ny with evidence of cover on request;
(l) the Supplier/Consultant shall, subject to working towards meeting the Client’s 's objectives, determine generally how the Services shall be supplied. The parties acknowledge and agree that the Supplier is engaged on the basis that its Consultant will perform the Services as an independent contractor not supervised or directed by the Client;
(mf) the Supplier warrants that it operates on a business to business basis such that the supply it makes under this Agreement is one of independent professional consultancy services to the Company and the Client as customers of its business with the Client not having supervision, direction or control of how the Services shall be supplied.
4.2 M▇▇▇▇▇▇ ▇. Accordingly▇▇▇▇▇▇, Managing Member of the Supplier, shall promptly supply to the Company at the end of each month (or other period from time to time required by the Company) confirmation in writing as follows:
a) the names of all Consultants or workers supplied via the Supplier in that month and such information as the company may require relating to such workers;
4.3 in relation to any such Consultant/worker who operates via a personal service company, up to date documentary evidence that such company is registered.
4.4 The Supplier warrants covenants and undertakes that the confirmation and documentary evidence supplied for the purposes described above shall be full and accurate. The Supplier warrants, covenants and undertakes that:
a) where it pays employment earnings to a worker these will be subject to the appropriate taxes;
b) all Consultants supplied via it are paid from a US bank account and into a US bank account only;
c) the Supplier agrees that it does not intend or regard the supply Company may audit the Supplier during normal business hours on reasonable notice to verify the Supplier’s compliance with the terms of Services made under this Agreement to fall within the scope of the AWR or the Intermediaries LegislationAgreement. The Supplier shall notify provide the Company in writing forthwith if, in its or with all reasonable co-operation and shall allow the Consultant’s opinion, the nature Company to have access to and take copies of the Services or the Assignment change (for exampleSupplier’s records and documentation, if the Client assumes a supervisory and/or directional role in relation to the Consultant). Upon receipt of such notification the Company reserves the right to terminate the Agreement by notice with immediate effect without liability. The Supplier shall indemnify the Company (and/or, as the case may be, the Client) against any Losses arising from failure to notify the Company of any change in the nature of the Services from that represented by the Supplier to the Company, and as intended by the parties, as at the Start Date including, without limitation, any claim by the Consultant that they are entitled to rights as an agency worker under the AWR; and
(n) the Supplier shall indemnify the Company (or, as the case may be, the Client) from and against any Losses which the Company (or, as the case may be, the Client) may suffer or incur as a result of the failure of the Supplier to comply with any of the representations, warranties and/or undertakings in this clause 4 including, without limitation, Losses which they would not have suffered or incurred but for:
(i) the Supplier or the Consultant claiming to be; and/or
(ii) some official, public body or authority for any purpose regarding the Supplier or the Consultant as, an employee or worker of, or under the supervision, direction or control of, the Company (or, as the case may be, the Client) or otherwise entitled to any rights or benefits that employees or workers enjoy. The Supplier hereby acknowledges that with effect form 6 April 2017 the Off-Payroll IR35 Legislation must be con- sidered in respect of all supplies made by personal service company contractors to Public Sector end clients. Due to uncertainties around whether assignments will fall to be assessed as being Inside IR35 or Outside IR35 the Company reserves the right to terminate the [Assignment] in accordance with clause [ 4.8 ] below and, subject to Client approval, to offer to re-issue a new assignment on an adjusted Net Fee basissuch audit.
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