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These Terms and Conditions of Business are between PHARMACONEX LTD (hereinafter called the “Company”)
and
(hereinafter Called the “Client”).
Headings
The headings in these terms of business shall not affect the interpretation of these terms.
Interpretation
Unless the context otherwise requires, references to the singular include the plural.
Reference to Legislation
Any reference to a statutory provision includes all re-enactments and amendments of it and the provisions of any regulations, orders or other delegated legislation made under it.
1. DEFINITIONS:
Agreement means these Terms of Business.
Assignment means the period during which a Candidate is supplied by the Company to render services to the Client on a temporary ( i.e. non-permanent) basis.
Assignment Rate means the hourly rate as agreed by the Company and the Client for an Assignment.
Booking Fee means the fee payable for booking a locum or temporary worker.
Candidate means an applicant who is available for work through the Company whether as locum, temporary worker, contractor or a person seeking permanent employment.
Client means the person, firm or corporate body together with any subsidiary or associated company to whom the Locum/Candidate/ Temporary Worker is supplied or introduced).
Company means Pharmaconex Limited
Confidential Information means means any information relating to the business, finances, prices, customers, suppliers, transactions, method of business, processes or affairs or the Company or the Client.
Contractor means an independent third party company which offers suitable and appropriately qualified individuals for Assignments.
Data Discloser means the party which discloses Shared Data to the other party.
Data Law means the Data Protection Act 1988 – 2018, the General Data Protection Regulation (“GDPR”) and SI336/2011 The European Communities Networks and Services)(Privacy and Electronic Communications) Regulations 2011.
Data Recipient means the party which receives Shared Data from the Data Discloser.
Data Security Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Shared Data.
Data Subject Access Request or DSAR has the same meaning as “Right of Access by the Data Subject” in Article 15 of GDPR
Direct Booking means the engagement, employment or use of Locum or Temporary worker or candidate directly by the Client or any third party or through any other company on a permanent or temporary basis, whether under a contract or service or for services; an agency, license, franchise or partnership agreement; or any other engagement; directly or through a limited company of which the Locum or Temporary worker or candidate is an officer or employee;
Locum or Temporary worker means the individual who is introduced by Company to render services to the Client or a locum or temporary basis.
Introduction means (i) the Client’s interview of a Locum or Temporary worker, following the Client’s request to the Company to supply a Locum or Temporary worker; or (ii) the passing to the Client of a curriculum vitae or information which identifies the Temporary Worker and which leads to an Engagement of that candidate or Locum or Temporary worker
Recruitment Fee means the fee payable for the successful permanent placement/recruitment of a candidate.
Services means the recruitment services to be provided by the Company to the Client.
Shared Data means the data, including Personal Data, to be shared between the Company and the Client.
VAT means Valued Added Tax
2. COMPANY RESPONSIBILITIES
The Company is licensed to trade as a Recruitment Agency by the Minister for Jobs, Enterprise and Innovation pursuant to section 3 of the Employment Agency Act, 1971.
The Company will provide the services described in the Engagement Letter (or such variations as may subsequently be agreed in writing between the parties) with reasonable skill and care and in a timely manner.
The Company shall endeavour to ensure the suitability of any Candidate introduced to the Client and to maintain a high standard of service and integrity.
The Company shall be entitled, and the Client shall accept, that the Company may use Contractors to undertake Assignments.
The Company will not normally seek to verify or check any information provided to the Company by or on behalf of the Client, and the Client acknowledges that the Company shall be entitled to rely on such information when performing its obligations under this engagement.
The Company makes no warranty, express or implied, as to the suitability of any Candidate introduced to the Client. The Company accepts no liability whatsoever for any loss, damage, cost or expense howsoever caused which the Client may suffer, or for which the Client may become liable, as a result of the introduction by the Company of a candidate to a Client or any engagement of a candidate by a Client.
The Company confirms that it shall ensure at all times that an insurance policy to provide appropriate insurance cover for medical Malpractice Claims against Pharmacist Candidates which are engaged by Clients. This cover does not extend to Candidates who are placed in permanent or fixed term employment with a Client or to Contractors.
The Company confirms that its Candidates have been subject to Garda Vetting by the Company.
3. CLIENT RESPONSIBILITIES
The Client shall at all times provide the Company with complete, accurate and timely information and to carry out any obligations ascribed to or undertaken by the Client or others under the Clients control.
The Client shall advise the Company of any particular health and safety matters about which the Company is required to inform the candidate and about any requirements impose by law or by any professional body, which must be satisfied if the candidate is to be recruited or undertake the Assignment.
For recruitment/permanent placements, the Client is responsible for the checking references as to the Candidates qualifications, suitability, capability and integrity prior to recruitment/placement unless the Client specifically requests the Company to undertake this work.
4. COMPLIANCE WITH EMPLOYMENT LAW
The Client hereby confirms that the Client shall comply in all respects with all Employment Law including, but not limited to, the Organisation of Working Time Act 1997, the Protection of Employees (Temporary Agency Work) Act 2012, Employment Equality Acts 1998-2015, the Safety, Health and Welfare at Work Acts 2005-2014, Workplace Relations Act 2015 and any Regulations made thereunder.
The Client shall do all things necessary to enable the Company to comply with the Company’s duties under the Organisation of Working Time Act 1997 and the Protection of Employees (Temporary Agency Work) Act 2012 to include, but not limited to, supplying any relevant information about the Assignment and the working and employment conditions applied by the Client in respect of its own staff.
For Assignments, the Client must provide full disclosure to the Company with regard to pay and working conditions of directly hired employees to ensure compliance with the Protection of Employees (Temporary Agency Work) Act, 2012.
The Client hereby confirms that the Client shall comply in all respects with any codes of practice and legal requirements to which the Client is subject in respect of the Client’s own staff, including in particular the provision of adequate Employer’s and Public Liability Insurance cover for the Locum or Temporary worker or candidate supplied during all Assignments.
The Client shall not do anything to cause the Company to be in breach of its obligations under these Acts.
5. COMPLIANCE WITH PHARMACY ACT 2007
The Client hereby confirms that the Client shall comply in all respects with all statutes including, but not limited to, the Pharmacy Act 2007 and any regulations made thereunder and to any codes of practice and legal requirements to which the Client is subject. For the avoidance of doubt the Client hereby confirms that the Client is the party responsible for ensuring compliance with the Pharmacy Act 2007 and any regulations made thereunder.
6. SUITABILITY OF CANDIDATE
When making an introduction of a candidate to the Client the Company shall:
- inform the Client of the identity of the candidate;
- confirm that the candidate has the necessary or required experience, training, qualifications; and
- any authorisation required by law or a professional body to work on the Assignment.
Whilst every effort is made by the Company to give satisfaction to the Client by ensuring reasonable standards of skills, integrity and reliability from temporary Workers and further to provide them in accordance with the Client’s booking details, the Company shall not liable for any direct, indirect or any other loss, expense, damage or delay arising from failure to provide any Candidate for all or part of the period of booking or from the negligence, dishonesty, misconduct or lack of skill of the Candidate supplied. For the avoidance of doubt, the Company does not exclude liability for death or personal injury arising from its own negligence.
7. STANDARD OF SERVICES
If the Client reasonably considers that the services of the Locum or Temporary Worker are unsatisfactory, the Client may terminate the Assignment either by instructing the Locum or Temporary Worker to leave the Assignment immediately, or by directing the Company to remove the Locum or Temporary Worker. The Company may, in such circumstances reduce or cancel the charges for the time worked by that Locum or Temporary Worker provided that the Assignment terminates:
- within four hours of the Temporary Worker commencing the Assignment where the booking is for more than seven hours; or
- within two hours for bookings of seven hours or less.
8. LIABILITY
The Client hereby agrees that the Client is responsible for all acts, errors and/or omissions of the Candidate, whether willful, negligent or otherwise as though the Candidate was an employee of the Client. The Client shall indemnify and keep indemnified the Company against any costs, claims or liabilities incurred by the Company arising out of any Assignment or arising out of any non-compliance with the terms of this Agreement. The Client undertakes to supervise the Candidate sufficiently to ensure the Client’s satisfaction with the Candidates standards of workmanship.
9. DATA PROTECTION
Sharing of Personal Data – This section sets out the framework for the sharing of data, including Personal Data and Sensitive Personal Data or Special Category of Personal Data, between the Company and the Client as Data Controllers and defines the principles and procedures that the parties shall adhere to and the responsibilities of the parties.
Agreed Purposes – The parties agree to only process Shared Data as described below under the heading “Types of Data” to
- Allow the Client to evaluate and recruit Candidates and access the Company’s Services; and
- Enable the Company to provide the Services.
General Compliance – Each party shall at all times ensure compliance with the Data Law and all other applicable laws and codes of practice and guidance as may be issued by the Data Protection Commissioner.
Types of Data – The following types of Personal Data will be shared between the parties whilst this Agreement applies:
- Candidate name and contact information;
- Candidate education achievements and qualifications;
- Candidate employment history;
- Candidate references; and
- Salary and remuneration requirements.
No irrelevant or Excessive Data – The Shared Data must not be irrelevant or excessive with regard to the Agreed Purposes.
Fair and Lawful Processing – For as long as this Agreement applies to the parties, each party shall ensure that it processes the Shared Data fairly and lawfully in accordance with the following legal grounds (“Grounds for Processing”):
- The Data Subject has freely given his/her explicit, specific and unambiguous consent;
- Processing is necessary for the performance of a contract to which the Data Subject is a party or in order to take steps at the request of the Data Subject prior to entering a contract;
- Processing is necessary for compliance with a legal obligation to which the parties are subject, other than imposed by contract;
- Processing is necessary in order to protect the vital interests of the Data Subject;
- Processing is necessary for the purposes of the legitimate interests pursued by the parties except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the Data Subject.
Retention Periods – The parties shall retain or process Shared Data for the longest of the following retention periods that applies:
a) the period that is necessary to carry out the Agreed Purposes; or
b) any period prescribed by applicable law or by best industry practice.
Return of Data – The Data Recipient shall ensure that any Shared Data are returned to the Data Discloser or destroyed securely (following which each party shall notify the other that the Shared Data in question has been deleted) in the following circumstances:
- on termination of the Agreement;
- on expiry of the Term of the Agreement; or
- once processing of the Shared Data is no longer necessary for the purposes they were originally shared for, as set out under “Agreed Purposes”.
Transfers – The Data Recipient shall not disclose or transfer the Shared Data to a third party data controller or processor.
Security and Training – Both parties shall use appropriate safeguards to protect the Shared Data from misuse and unauthorised access or disclosure, including, without limitation:
- maintaining adequate physical controls and password protections;
- ensuring that data stored on any mobile device (for example, a laptop or smartphone) or transmitted electronically is encrypted; and
- taking all other measures reasonably necessary to prevent any use or disclosure of the data other than as allowed under this section.
Data Security Breaches and Reporting Procedures – The parties undertake to notify any potential or actual losses of the Shared Data to each other as soon as possible and, in any event, within two (2) calendar days of identification of any potential or actual loss, and agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Data Security Breach.
Obligation to Inform – In the event of a dispute or claim brought by a Data Subject or the Data Protection Commission concerning the processing of Shared Data against either or both parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
Mutual Warranties – Each party warrants and undertakes that it shall:
- Process the Shared Data in compliance with all applicable laws, including Data Law, enactments, regulations, orders, standards and other similar instruments that apply to its personal data processing operations;
- make available upon request to the Data Subjects who are third party beneficiaries a copy of these terms of business, unless these terms of business contain confidential information;
- respond within a reasonable time and as far as reasonably possible to enquiries from the Data Protection Commission in relation to the Shared Data;
- respond to DSARs and all other requests from Data Subjects in accordance with Data Law;
- where applicable, maintain registration with all relevant Data Protection Commission to process all Shared Data for the Agreed Purpose; and
- take all appropriate steps to ensure compliance with the security measures set out under “Security and Training”.
Indemnity – The Data Recipient shall indemnify and keep indemnified the Data Discloser on demand from time to time from and against all losses which it causes the Data Discloser as a result of its breach of any of the provisions of this section or arising out of or in connection with all claims, proceedings or actions brought by the DPC, any other competent public authority or a Data Subject against the Data Discloser with respect to the processing of the Shared Data by the Data Recipient.
10. CONFIDENTIALITY
The parties shall take such steps it deems appropriate to preserve Confidential Information from unauthorized disclosure or other misuse both during and after termination of this Agreement. For the avoidance of doubt, if, despite taking such steps, a party disclose without authorisation or otherwise misuse the Confidential Information, thereby causing the other party loss, that party shall be liable to the other party in accordance with law but subject to the other terms of this Agreement. Save where there is specific agreement to the contrary, the fact that there is a professional relationship between the parties shall not be treated as Confidential Information and either party may disclose this fact to other third parties. Subject to the parties respective duties of confidentiality, the Client agrees that the Company may act for its competitors or for other clients, whose interests are or may be opposed to the Clients.
The Company will not be prevented from disclosing confidential information:
- which is or becomes public knowledge other than by a breach of an obligation of confidentiality;
- which is or becomes known from other sources without restriction on disclosure; or
- which is required to be disclosed by law or any professional or regulatory obligation.
The reports, letters, information and advice the Company provides to the Client are solely the purposes of this Agreement and are not to be relied upon by any other person or entity.
11. DURATION
Unless otherwise agreed with you, the terms of this engagement will apply from the commencement of our provision of the services outlined in our engagement letter for a period of 24 months. If services are provided beyond the initial 24 month period, the terms of this Agreement shall be deemed to apply.
This agreement may be cancelled by either party on 180 days notice in writing. If services are provided beyond the expiration of such notice period, the terms of this agreement shall be deemed to apply.
12. FEES AND CHARGES
The Company shall charge to the Client:
-
- For a Candidate who is on the Company’s payroll:
12.1.1 A Booking Fee of € 35 plus VAT;
12.1.2 A sum equivalent to the amount of Employer’s PRSI in respect of the Assignment (presently 10.95%); and
12.2.3 A general administration fee of 3 % on the total payment due to the Candidate for the Assignment (hours worked multiplied by Assignment Rate).
13. ASSIGNMENT RATE
The Client agrees to pay the Assignment Rate agreed at the time of booking of the Candidate for the Assignment. The Client shall be liable to pay the Company for all hours actually worked by the Candidate at the Assignment Rate without deduction.
VAT applies and is charged on the Assignment Rate.
The Company will be responsible for the Candidates remuneration, including deducting PAYE, PRSI and USC contributions and accounting to the relevant authorities for such deductions.
The Company shall also ensure that the Candidates receive their entitlements and shall be fully complaint with and discharge its obligations under the Organisation of Working Time Act 1997.
If a Candidates Assignment with a Client exceeds 104 weeks, the Candidate may become eligible to a redundancy payment under the provisions of the Redundancy Payments Acts in the event that the Assignment is terminated after such period. In that event the Client hereby agrees to indemnify the Company for any associated costs of such redundancy.
14. RECRUITMENT FEE
The Company shall charge the Client a Recruitment Fee in the event of a successful placement or recruitment by the Client of a Candidate.
The Client agrees both to notify the Company immediately a Candidate is successfully recruited/employed and pay the Recruitment Fee within ten days.
The Recruitment Fees are as follows:
- Pharmacist – 10% of candidate salary
- Pharmacy Technician / Experienced pharmacy dispenser; €2000.00
- Front of Counter Assistant / OTC Assistant-; €2000
- Store Manager -;€2000
VAT applies and is charged on Recruitment Fees.
In the event of a Candidate resigning or being unsuitable, the Company will either provide a replacement Candidate or offer refund on the following terms:
- Within 4 weeks – 100% refund;
- Within 6 weeks – 75% refund;
- Within 8 weeks – 50% refund;
- Within 12 weeks – 25 % refund.
If the Candidate is in employment after 12 weeks, no refunds or replacement Candidate will be offered.
The Client must notify the Company immediately in writing, and no later than 5 working days, of the termination of employment. The time period for the calculation of refunds shall be the date on which notification is made by the Client to the Company. If notification or termination is made outside of 5 working day from the date of termination, the Company will not issue a refund.
No refund or replacement Candidate will be offered if the Client has not discharged the Recruitment Fee.
Should the Client or any subsidiary, associated or group company or another franchise holder in the same group subsequently re-engage or employ the Candidate within the period of 12 calendar months from the date of termination the Client shall be liable for the full Recruitment Fee under and pursuant to this Agreement.
Introductions are confidential. The passing of an introduction to another employer which results in the engagement of the Candidate in employment renders the Client liable to payment of the Recruitment Fee without set-off.
In the event that the Client employs a Locum, Temporary worker or candidate supplied by the Company for an Assignment within 26 weeks from the day after the last day the Locum or Temporary Worker or candidate on the Assignment the Company shall be entitled to the Recruitment Fee as above and the Client shall be liable for such Recruitment Fee as is appropriate, and on the same terms and conditions.
15. CANCELLATION FEES
If an Assignment is cancelled upon arrival of the Locum or Temporary Worker without prior notice, the Company will charge the Client as if the Locum had completed the Assignment.
If a Client cancels an Assignment at short notice i.e. within 48 hours of the commencement of the Assignment, and the Company is unable to re-allocate the candidate to another Assignment, the Client shall be invoiced as if the Candidate had completed a four-hour Assignment at the Assignment Rate.
No cancellation fee will be charged if the Company is notified via e-mail with a notice period of:
- Monday – Friday – 48 hours prior to the start of the Assignment;
- Saturday/Sunday/Bank Holidays – 72 hours prior to the start of the Assignment.
16. TIMESHEETS
On completion of an Assignment the Candidate will complete a timesheet which the Company will forward to the Client. The Client shall have a period of 48 hours to accept or raise an issue with the timesheet, after which period the Client shall be deemed to have accepted the timesheet as confirmation of the hours worked by the Candidate on an Assignment, and the Company shall proceed to invoice the Client accordingly.
17. PAYMENT TERMS – CLIENT TO REVIEW AND AMEND AS APPROPRIATE
Invoices are issued fortnightly. Payments will be due on the 13th and the last day of each month for invoices sent the previous fortnight. The Client shall complete the necessary direct debit forms to enable payment to the Company.
18. INTEREST
Pursuant to the European Communities (Late Payment in Commercial Transactions) Regulations 2012 – SI 580 of 2012 the Client shall pay to the Company interest on any overdue amount at a rate of 8% per annum above the refinancing base rate of the European Central Bank, from the due date for payment until payment, calculated on a daily basis and compounded monthly. Interest will be payable both before and after judgment.
19. DIRECT BOOKING
The Client hereby confirms and warrants that in the event it engages a Candidate by Direct Booking the Client shall provide to the Company necessary details of the Assignment, to include Assignment Rate (or Increased Assignment Rate) to enable the Company to process the payment to the Candidate and the Client shall pay to the Company the Booking Fee and applicable Fees and Charges in accordance with this Agreement.
20. TERMINATION
The Locum or Temporary Worker may terminate an Assignment at any time without prior notice and without liability. If the Locum or Temporary worker or candidate fails to attend work or notifies the Client that he/she is unable to attend work for any reason the Client shall notify the Company immediately and without delay and in any event within 24 hours.
The Company shall notify the Client immediately if it receives or otherwise obtains information which gives it reasonable grounds to believe that the Locum or Temporary Worker supplied to the Client is unsuitable for the Assignment and the Client shall be entitled to terminate the Assignment forthwith by notice in writing without prior notice and without liability.
21. ENTIRE AGREEMENT
The engagement letter and these Terms of Business constitute the entire agreement between the parties with respect to their subject matter, and except as expressly provided, supersede all prior representations, writings, negotiations or understandings with respect to that subject matter.
22. FORCE MAJEURE
Neither party shall be liable in any way for failure to perform, or delay in performing, their respective obligations under this engagement if the failure or delay is due to causes outside the reasonable control of the party which has failed to perform.
23. VALIDITY OF AGREEMENT
If any provision in this Agreement is deemed to be, or becomes invalid, illegal, void or unenforceable under applicable laws, such provision will be deemed amended to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the parties, it will be deleted, but the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired or affected in any way.
24. WAIVER
A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
25. NO VARIATION
No variation of these Terms of Business shall be effective unless in writing and signed by a director of the Company.
26. GOVERNING LAW AND JURISDICTION
These Terms of Business shall be governed by and construed in accordance with the laws of Ireland and any dispute arising out of this engagement or these terms shall be subject to the exclusive jurisdiction of the courts of the Republic of Ireland, to which both parties hereby agree to submit for these purposes.
