TERMS OF(SERVICE)

1.Introduction and parties

These terms are between RESTAURANT ELZA LTD, trading as Crespaca (“we”, “us”, the “Agency”), and the business booking staff from us (“you”, the “Client”).

They apply in full to every booking and take precedence over any terms you seek to impose, including terms printed on a purchase order or on your own standard documents, unless a director of ours has agreed otherwise in writing.

Where we supply a temporary worker who remains engaged by us, we act as an employment business. Where we introduce a candidate for you to engage directly, we act as an employment agency. Both activities are carried out in accordance with the Conduct of Employment Agencies and Employment Businesses Regulations 2003.

2.Definitions

• Assignment — the period during which a Worker is supplied to the Client.
• Booking Confirmation — the written confirmation we issue setting out the role, dates, hours, site and rate.
• Charges — the sums payable by the Client, as set out in section 7.
• Engagement — the direct employment or engagement of a Worker or Candidate by the Client, whether under a contract of employment, a contract for services, through another agency, or through a company controlled by that person.
• Introduction — the passing to the Client of information that identifies a Candidate, or an interview arranged between them.
• Worker — a person we supply to work at the Client’s premises on a temporary basis.
• Candidate — a person we introduce to the Client for permanent Engagement.

3.How a booking is formed

1. You send us a request, by web form, email or telephone, describing the role, the site, the dates and the hours you need covered.
2. We confirm the role, the applicable hourly rate and any minimum charge, and we tell you the name of the Worker we propose.
3. A binding contract is formed when we issue a Booking Confirmation, or when the Worker starts work at your site, whichever happens first.
4. If you allow a Worker to start work, you are treated as having accepted these terms whether or not you have signed anything.

Rates published on our website are indicative guide prices. The rate that applies to your booking is the one stated in the Booking Confirmation.

4.Our obligations

We will:

• take reasonable steps to supply a Worker who has the skills, experience, training and qualifications the role requires, based on the brief you have given us;
• verify each Worker’s identity and right to work in the United Kingdom before the first Assignment, and hold the records required by law;
• obtain and check the certification a role legally requires, such as food safety and allergen training, and confirm it has not expired;
• take up references appropriate to the role;
• brief each Worker on your site, your dress standard and your start time before the shift;
• pay each Worker directly, and account for income tax, National Insurance, holiday pay and pension contributions where we are the engager;
• maintain the insurance described in section 16;
• give you a named account manager who is contactable during service hours.

The suitability of a Worker for your particular kitchen or floor is assessed on the information you give us. We do not warrant that a Worker will meet a standard you have not told us about.

5.Client obligations

You will:

• give us a complete and accurate description of the role, the hours, the site address, the equipment involved and any risk it carries;
• tell us of any qualification, licence or certificate the role legally requires, and of any health and safety risk requiring specific training;
• provide day-to-day supervision, direction and control of the Worker while on your premises;
• provide a safe place of work, safe systems of work, adequate welfare facilities and any personal protective equipment the role requires, at your cost;
• comply with all applicable employment, health and safety, food hygiene and licensing law in respect of the Worker as if they were your own employee;
• not require a Worker to perform duties materially different from those agreed, or to work at a site other than the one confirmed, without our prior agreement;
• sign or electronically approve timesheets promptly and accurately;
• tell us immediately if a Worker is unsatisfactory, is injured at your site, or is involved in an incident;
• not pay a Worker directly in cash or otherwise, and not agree any private arrangement with them for work at your venue.

6.Introductions and permanent placements

Where we introduce a Candidate and you engage them directly, a transfer fee is payable. The fee is calculated as a percentage of the Candidate’s first-year gross remuneration, confirmed to you in writing before the Introduction, and is invoiced on the Candidate’s start date.

A fee is also payable if, within six months of the last day we supplied a Worker to you, you engage that Worker directly, or you introduce them to a third party who engages them. This applies whether the Engagement is permanent, temporary, full time or part time.

Instead of paying a transfer fee for a Worker we have supplied, you may elect — before the Engagement starts — to extend the period of hire through us. The extended hire period is 12 weeks of full-time equivalent supply at the agreed hourly rate, after which the Worker may transfer to you with no further charge. This election must be made in writing.

You must tell us in writing within seven days of engaging any Candidate or Worker we have introduced or supplied, giving the start date and the agreed remuneration. If you do not, we may raise an invoice based on our reasonable estimate of that remuneration.

Rebate on early departure

If a permanently placed Candidate leaves or is dismissed for cause within the first 12 weeks, and you have paid our invoice in full and on time, we will provide a free replacement search. If we cannot place a suitable replacement within 8 weeks, we will refund the transfer fee on the following scale: 100% within weeks 1–4, 50% within weeks 5–8, 25% within weeks 9–12. No rebate is payable where the departure results from redundancy, a change to the role, or your failure to pay the agreed remuneration.

7.Charges, rates and what is included

The hourly rate stated in your Booking Confirmation is an all-inclusive rate. It covers the Worker’s pay, employer’s National Insurance, holiday pay accrual, pension contributions, our insurance and our margin. There is no separate booking fee.

The following additional charges apply only where they arise, and only where we have told you about them in advance:

• Minimum charge — four hours per Worker per shift, even if the Worker is released early.
• Overtime — hours worked beyond those confirmed are charged at the agreed rate, or at any premium stated in the Booking Confirmation.
• Public holidays — work on a bank holiday is charged at the premium stated in the Booking Confirmation.
• Travel and accommodation — charged at cost for bookings outside the Worker’s normal travel radius, agreed in advance.

All Charges are exclusive of VAT, which is added at the prevailing rate. We may change our rates on 30 days’ written notice, or immediately where a change is needed to comply with a statutory increase in the National Minimum Wage, National Living Wage, employer’s National Insurance or pension contributions.

8.Timesheets, invoicing and payment

Hours are recorded on a timesheet approved by you at the end of each shift or week. By approving a timesheet you confirm that the hours are correct and that the work was performed satisfactorily.

If you do not approve a timesheet and do not raise a written query within two working days of receiving it, we may invoice on the basis of the hours recorded by the Worker.

We invoice weekly in arrears. Payment is due within 14 days of the invoice date, in cleared funds, without set-off or deduction, to the account shown on the invoice.

If you do not pay on time we may:

• charge interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998, currently 8% above the Bank of England base rate;
• recover the reasonable costs of collection;
• suspend further supply until the account is cleared, without liability to you for that suspension.

A query about part of an invoice does not entitle you to withhold payment of the undisputed balance.

9.Discounts and promotional rates

Standing discounts advertised on our website apply automatically once the stated condition is met, and are shown as a line on your invoice. Unless we state otherwise:

• discounts apply to our standard hourly Charges only, and never to transfer fees, travel costs or VAT;
• only one discount applies to any given hour; where more than one could apply, the larger one is used;
• a volume or rolling-contract discount is calculated on hours actually worked and approved, not on hours booked;
• an introductory offer, including any first-shift offer, is available once per Client group and only where the account is new;
• a referral credit is applied after the referred venue’s first shift has been worked and invoiced;
• discounts are withdrawn for any period during which your account is overdue;
• we may change or withdraw a discount on 30 days’ written notice, and any booking confirmed before that notice keeps the original rate.

10.Cancellations, no-shows and replacements

Cancellation by you

Cancellations must be given in writing to your account manager or to [email protected]. A message left with a Worker is not a valid cancellation.

If a Worker does not arrive

If a Worker fails to attend a confirmed shift and we have not notified you of a substitution at least two hours before the start time, we will dispatch a replacement as quickly as we can and that shift is provided free of charge. This is your sole remedy for a non-attendance, and no other compensation is payable.

If a Worker is unsatisfactory

If you are dissatisfied with a Worker and you tell us within the first two hours of the shift and ask them to stop work, you will not be charged for that Worker’s time on that shift and we will try to supply a replacement. If you raise the issue after two hours, the shift is charged in full and we will address the matter for future bookings.

11.Trial shifts and the replacement guarantee

Where a paid trial shift is agreed before a permanent Engagement, it is charged at our standard hourly rate and, if you then engage the Candidate within 14 days, that charge is credited against the transfer fee.

Our replacement guarantee for permanent placements is set out in section 6. It is conditional on the invoice having been paid in full by its due date and on the role, remuneration and duties being those described to us at the time of the Introduction.

12.Health, safety and working conditions

Workers are under your direction and control while on your premises. You are responsible for their health and safety there to the same extent as for your own employees, including risk assessment, instruction, supervision, protective equipment and safe access.

You must report any accident or near miss involving a Worker to us within 24 hours, and must comply with your own reporting obligations under RIDDOR.

A Worker may refuse to carry out a task that is unsafe, that requires a certificate they do not hold, or that was not part of the agreed role. A refusal on those grounds is not a failure of supply and does not reduce the Charges.

13.Working time, breaks and right to work

You must allow Workers the rest breaks and rest periods required by the Working Time Regulations 1998, and must not require hours that would breach a Worker’s weekly limit unless they have signed an opt-out that we have confirmed to you.

We verify the right to work of every Worker before the first Assignment. You must not permit a Worker to continue after we have told you that a right-to-work document has expired or been withdrawn.

14.Status of Workers

Workers we supply are engaged by us, not by you, and nothing in these terms makes a Worker your employee. You must not represent to a Worker that you are their employer, or purport to vary their pay, hours or terms.

Nothing in these terms creates a partnership, joint venture or agency relationship between you and us beyond what is expressly stated.

15.Engaging our Workers directly

You must not, during an Assignment and for six months after its end, directly or indirectly employ, engage or solicit any Worker introduced or supplied by us, except by paying a transfer fee or electing an extended hire period under section 6. This restriction is intended only to protect our legitimate business interest in the investment we make in finding, vetting and training our people.

Nothing in this section prevents a Worker from responding to a public advertisement placed by you and not targeted at them.

16.Insurance

We maintain employer’s liability insurance and public liability insurance at the levels required by law and appropriate to our activities, with a reputable insurer. A certificate is available on request.

You must maintain public liability insurance covering your premises and operations, and must ensure that your policy extends to labour-only contractors and agency workers on site.

17.Confidentiality

Each party will keep confidential the other’s non-public business information, including recipes, menus, supplier terms, pricing and customer data, and will use it only for the purposes of the booking. This obligation continues for three years after the last Assignment ends.

It does not apply to information that is already public through no breach, that a party already lawfully held, or that must be disclosed by law or by a regulator.

18.Data protection

Each party is an independent controller in respect of the personal data it handles under these terms. Each will comply with the UK GDPR and the Data Protection Act 2018.

You may use the personal data we give you about a Worker only for the purposes of the Assignment and your related legal obligations. You must not use it for marketing, must not pass it to another agency or venue without our consent, and must delete or return it when your legal retention periods expire.

Our own handling of personal data is described in our Privacy Policy. Each party will notify the other without undue delay of any personal data breach affecting data shared under these terms.

19.Liability

Nothing in these terms limits or excludes our liability for death or personal injury caused by our negligence, for fraud or fraudulent misrepresentation, or for any liability that cannot lawfully be limited.

Subject to that:

• we are not liable for any act, omission, negligence or dishonesty of a Worker while under your direction and control;
• we are not liable for loss of profit, loss of business, loss of contracts, loss of goodwill, loss of anticipated savings, business interruption, wasted expenditure or any indirect or consequential loss;
• our total liability arising from a booking, whether in contract, tort, breach of statutory duty or otherwise, is limited to the Charges paid by you for that booking in the three months before the event giving rise to the claim;
• any claim must be notified to us in writing within three months of the event giving rise to it.

You will indemnify us against any claim brought by a Worker, a third party or a regulator arising from your breach of these terms, from your failure to provide a safe place of work, or from your direction of a Worker.

20.Term, suspension and termination

Either party may end an Assignment by giving the notice stated in the Booking Confirmation or, where none is stated, 24 hours’ written notice. Charges for shifts already worked remain payable, and the cancellation scale in section 10 applies to shifts already confirmed.

We may suspend or terminate supply immediately, without liability, if:

• you fail to pay a sum due and it remains unpaid 7 days after written reminder;
• you commit a material breach of these terms that is not remedied within 7 days of notice;
• we reasonably consider your site unsafe or a Worker to be at risk;
• you are subject to an insolvency event, or we reasonably believe you are about to be.

Sections dealing with transfer fees, confidentiality, data protection, liability and governing law survive termination.

21.Force majeure

Neither party is liable for a failure or delay in performance caused by an event beyond its reasonable control, including fire, flood, epidemic, industrial action not involving its own workforce, failure of utilities or transport networks, or an act of government. The affected party must notify the other promptly and take reasonable steps to mitigate. If the event continues for more than 30 days, either party may terminate affected bookings by written notice without liability.

22.Complaints and disputes

Raise any service complaint with your account manager first, and escalate to [email protected] if it is not resolved. We acknowledge within two working days and respond substantively within fifteen working days.

If a dispute remains after that process, both parties will consider mediation in good faith before issuing proceedings. This does not prevent either party from seeking urgent injunctive relief or from pursuing an undisputed debt.

23.General

Variation. These terms may only be varied in writing signed by a director of ours. A Worker has no authority to vary them.

Assignment. You may not assign or subcontract your rights without our written consent. We may assign our rights to a group company or to a buyer of our business.

Notices. Notices must be in writing and sent by email to the address given in the Booking Confirmation, or by post to the registered office, and are deemed received on the next working day for email and on the second working day after posting.

Severability. If any provision is held invalid, the remainder continues in force, and the invalid provision is modified to the minimum extent necessary to make it enforceable.

Third-party rights. Except for a Worker’s right to a safe place of work, no third party may enforce these terms under the Contracts (Rights of Third Parties) Act 1999.

Entire agreement. These terms and the Booking Confirmation are the whole agreement between us and replace any previous discussion, save that nothing limits liability for fraudulent misrepresentation.

24.Governing law and jurisdiction

These terms and any dispute arising from them, including non-contractual disputes, are governed by the law of England and Wales, and the courts of England and Wales have exclusive jurisdiction.