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Terms of Business - Agencies

CONDITIONS

(a) PCB Global Tech Limited (trading as Hirely Health and referred to in these Terms of Business as "Hirely Health") operates an online platform via https://gethirely.com (the "Platform") and other channels. The Platform, amongst other things, allows recruitment agencies to upload vacancies, search candidate profiles, match with candidates and interact with candidates by sending and receiving direct messages, with the objective of placing those candidates into permanent or temporary vacancies with those agencies’ clients.

(b) The recruitment agency named in the Quotation Document (the "Agency") wishes to use the Platform to connect with candidates. Hirely Health shall provide the Agency with access to the Platform as further described in Schedule 1, in exchange for the payment of the Charges.

Interpretation
1. Definitions
  Affiliate: means, in respect of an entity:
  (a) any of the entity's subsidiaries, group companies, associated undertakings;
  (b) any entity which shares any ownership or control with the entity;
  (c) any of the entity's directors, officers, employees, agents or representatives; or
  (d) any entity which is under the control of any of the entity's directors, officers, employees, agents or representatives.
  Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
  Candidate: a job-seeking candidate using the Platform to find employment.
  Charges: the charges payable by the Agency for the supply of the Services by Hirely Health, as set out in the Quotation Document and clause 11.
  Conditions: these terms and conditions set out in clause 1 (Interpretation) to clause 16 (General) (inclusive).
  Contract: the contract between the Agency and Hirely Health for the supply of the Services comprising the Quotation Document, these Conditions and any Schedules and in the event of any conflict or ambiguity between the terms of the documents listed, priority shall be given in that order.
  Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
  Locum Fee: an ongoing fee in respect of each Placement on a locum or non-permanent basis or fixed term appointment equal to or less than three months in duration, payable per hour billed in respect of that Candidate, in accordance with clause 11.
  Placement: any form of employment, temporary employment, contracting or other use of Candidate by a client of the Agency, the Agency itself or any Affiliate of the Agency or of a client of the Agency that is sourced through the Platform or the Services:
  (a) whether on a permanent, fixed-term, temporary, locum or non-permanent basis; and
  (b) whether as an employee, contractor, or provided though any intermediary, company or agency; and
  (c) whether or not the work is carried out under a written contract.
  Placement Fee: a one-off placement fee in respect of each Placement on a permanent or substantive basis or fixed term appointment greater than three months in duration, which shall be payable in accordance with clause 11.
  Platform: has the meaning given in the background provisions above.
  Representatives: the representatives of each Party identified in the Quotation Document.
  Quotation Document: a written quotation provided by Hirely Health to the Agency, which is signed by authorised representatives of both Hirely Health and the Agency.
  Services: the services to be provided by Hirely Health to the Agency as described in Schedule 1.
  Services Start Date: the date on which Hirely Health is to start provision of the Services to the Agency, as set out in the Quotation Document.
  Subscription Fee: an ongoing subscription fee (if applicable) in respect of the Agency's use of the Platform and receipt of the Services, payable in accordance with clause 11 and the Quotation Document.
2. Interpretation
  1. A reference to legislation or a legislative provision:
    (a) is a reference to it as amended, extended or re-enacted from time to time; and
    (b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
  2. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
  3. A reference to writing or written includes email.
Commencement and term
1. The Contract shall commence on the date when the Quotation Document has been signed by the Agency and, unless terminated in accordance with clause 15, shall remain in force for a 12 month period commencing on the Services Start Date and successive 12 month periods thereafter unless terminated on at least 30 days' written notice by either party prior to the expiry of a 12 month period.
Supply of services
1. Hirely Health shall supply the Services to the Agency from the Services Start Date.
2. In supplying the Services, Hirely Health shall:
  1. perform the Services with reasonable care and skill;
  2. use reasonable endeavours to perform the Services in accordance with the service description set out in Schedule 1; and
  3. comply with all applicable laws, statutes, regulations from time to time in force, and provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
Conduct of Employment Agencies and Employment Businesses Regulations 2003
1. Hirely Health and the Agency agree that for the purposes of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the "Conduct Regulations"), Hirely Health shall not be an 'employment agency' as defined in the Conduct Regulations and Employment Agencies Act 1973. Hirely Health provides Candidates and the Agency a location and the software tools to enable them to find and connect with each other.
2. The Agency agrees to comply with its requirements under the Conduct Regulations, and to provide Hirely Health any documentation or information necessary to prove its status under the Conduct Regulations.
Use of the Platform and Services
1. The Agency shall:
  1. co-operate with Hirely Health in all matters relating to the Services; and
  2. provide, in a timely manner, such information as Hirely Health may require in order to provide the Services, and ensure that such information is accurate and complete in all material respects.
2. The Agency shall comply with the Hirely Health Code of Conduct at all times when using the Platform.
3. The Agency may only permit its own directors, employees and consultants to access the Platform and, except as permitted in this Contract, may not grant any third party access to the Platform or to any information (including Candidate information or personal data) obtained from or contained within the Platform. Any breach of this clause 5.3 shall constitute a material breach of this Contract by the Agency.
4. The Agency may use the Platform to browse Candidates and their profiles and submit messages to Candidates. Once the Agency has discovered a Candidate on the Platform, the Agency agrees to communicate exclusively 6. with the Candidate through the Platform and shall declare its interest in the Candidate by matching with the Candidate using the matching function within the Platform.
5. The Agency shall declare its interest in a Candidate using the matching function within the Platform before the Agency or any client of the Agency or any of their Affiliates:
  1. offers an interview to that Candidate;
  2. makes an offer to that Candidate for a Placement;
  3. enters into a Placement with that Candidate.
6. The Agency acknowledges and agrees that once it has declared its interest in a Candidate using the matching function and the Candidate has clicked "I'm interested" (or the equivalent action within the Platform from time to time), this shall be deemed to be a Placement of the Candidate and the Charges shall be payable in respect of that Candidate in accordance with clause 11.
7. The Agency acknowledges and agrees that any agreement or employment relationship created between a Candidate and the Agency, its client or any of their Affiliates in respect of a Placement are not binding on Hirely Health and Hirely Health is not liable for, or obligated to enforce, any such agreements. The Agency will not consider Hirely Health, nor will Hirely Health be construed as, a party to such agreements, whether or not Hirely Health receives some form of remuneration in connection with the agreements, and Hirely Health will not be liable for any costs or damages arising out of or related to such transaction.
Information-sharing, reporting and Reconciliation
1. The Agency shall promptly provide all reasonable information relating to Placements requested by Hirely Health.
2. To enable tracking of hours to determine Locum Fees, the Agency shall comply with Hirely Health's reporting procedure by generating and submitting to Hirely Health on a monthly basis reports (in a form acceptable to Hirely Health) of hours worked by each Candidate in respect of whom Locum Fees apply.
3. Hirely Health has the right to conduct reconciliation audits in respect of the Agency (each a "Reconciliation") for the purposes of:
  1. verifying any Placements, or billed hours resulting from Placements, which have not been properly notified to Hirely Health ("Missed Hours"), and
  2. verifying the evidence provided to support an Existing Candidate Relationship.
4. Hirely Health has the right to appoint a third party (the "Auditor") of Hirely Health's choosing to conduct the Reconciliations. Hirely Health shall notify the Agency of the contact details of the Auditor. Should no Auditor be appointed, this role shall be fulfilled by Hirely Health itself.
5. In each Reconciliation, the Agency shall show the Auditor (or Hirely Health, as applicable) its internal data necessary, to their satisfaction, to verify any Missed Hours and validate the Existing Candidate Relationships. Without limitation, this shall include: (i) aggregate billed hours, (ii) timesheet dates and information, (iii) Candidate referral / source data and (iv) dates and details of correspondence with Candidates.
6. The Agency shall not be obliged to share with the Auditor or Hirely Health commercially sensitive information such as details of client names, commission levels or payment terms.
7. Without limitation, Hirely Health has the right to indefinitely suspend the Agency's access to the Platform and/or immediately terminate this Contract for irremediable material breach should any terms of this clause 6 be breached by the Agency. Hirely Health shall also have the right to notify Candidates that the Agency has contacted through the Platform that this Contract has been terminated due to a breach of rules on Reconciliation.
Existing Candidate Relationship
1. If the Agency can prove either of the following circumstances (each an "Existing Candidate Relationship"), then no Charges shall be due by the Agency to Hirely Health in respect of that Candidate:
  1. the Candidate was placed by the Agency in the 12 months before the Candidate was first contacted on the Platform; or
  2. the last Meaningful Contact from the Candidate to the Agency was in the 6 months before the Candidate was first contacted on the Platform. For the purposes of this clause 7.1.2, "Meaningful Contact" means a phone call or email exchange where the Candidate shares their availability, work preferences or discusses certain roles with the Agency. Outbound calls or emails from the Agency to the Candidate do not constitute Meaningful Contact from the Candidate.
2. If the Agency believes that an Existing Candidate Relationship applies in respect of certain Candidates, the Agency shall inform Hirely Health and provide supporting evidence of the dates last worked and/or last Meaningful Contact to support this within 30 days of the month end. Hirely Health shall review the evidence provided and raise any concerns within 30 days of receipt.
3. Failure to provide the evidence set out in clause 7.2 within the 30 day period following month end shall invalidate a claim for an Existing Candidate Relationship and all Charges will be due in relation to the relevant Candidates.
4. Hirely Health has the right to verify the evidence provided in accordance with clause 7.2 through the Reconciliation process set out in clause 6.
Non-circumvention
1. Any attempt by the Agency to circumvent the terms of this Contract by (without limitation):
  1. independently attempting to communicate with and place the Candidate through alternative means outside of the Platform or through an Affiliate of the Agency; or
  2. failing to use the matching function within the Platform to indicate its interest in a Candidate; or
  3. failing to provide Hirely Health with accurate information to enable the calculation of Locum Fees or other information required to determine the existence of a Placement,
2. In the event of any attempt by the Agency to circumvent the terms of this Contract as set out in clause 8.1, the applicable Charges shall be due at three times those rates set out in the Quotation Document, plus any applicable interest.
Data protection
1. The parties shall comply with their data protection obligations as set out in Schedule 2 (Data Protection).
Intellectual property
1. Hirely Health, or its respective licensor, is the exclusive owner of the Intellectual Property Rights in all the Platform, Services and all content (excluding user-generated content) comprised within the Platform, the Services, including without limitation the Hirely Health brand and associated logo(s), trade marks and trade names.
2. The Agency:
  1. may print or download extracts of any page(s) from the Platform for business use;
  2. must not modify the paper or digital copies of any materials it has printed off or downloaded in any way, and must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text;
  3. acknowledges and will acknowledge Hirely Health as the author of content on the Platform (except where the content is user-generated); and
  4. must not use any part of the content on the Platform for commercial purposes without obtaining a licence to do so from Hirely Health or its licensors.
3. The Agency hereby grants to Hirely Health and its Affiliates a non-exclusive, fully paid-up, royalty-free, worldwide licence to display, reproduce and otherwise use, on the Platform and for the purpose of providing the Services, the Agency's logo(s), trade marks and trade names and any Agency-generated content such as role advertisements.
Charges and payment
1. In consideration for the provision of the Services, the Agency shall pay Hirely Health the Charges in accordance with this clause 11.
2. The Charges may comprise any combination of the following, as set out in the Quotation Document:
  1. a Placement Fee in respect of each relevant Candidate, payable on the commencement of the Placement (which, for the purpose of this clause 11.2.1, shall mean the first day of work of the Candidate for that Placement, irrespective of whether a contract has been entered into with the Candidate in respect of the Placement);
  2. a Locum Fee in respect of each hour of work (or part of an hour of work) completed by each relevant Candidate, billed by any client of the Agency, the Agency, any Affiliate of the Agency or any Affiliate of any client of the Agency, payable on a monthly basis for the period set out in the Quotation Document (commencing on the Candidate's first shift); and/or
  3. a Subscription Fee, payable in advance on a monthly basis. For the avoidance of doubt, a Subscription Fee shall only be payable if specified in the Quotation Document or otherwise agreed in writing between the parties.
3. The Charges are due on receipt of a valid invoice, and are non-refundable.
4. All amounts payable by the Agency exclude amounts in respect of value added tax (VAT), which the Agency shall additionally be liable to pay to Hirely Health at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
5. Hirely Health shall submit invoices for the Charges plus VAT if applicable to the Agency. Each invoice shall include all reasonable supporting information required by the Agency.
6. The Agency shall pay each invoice due and submitted to it by Hirely Health, within 30 days of receipt, to a bank account nominated in writing by Hirely Health.
7. If the Agency fails to make any payment due to Hirely Health under the Contract by the due date for payment, then, without limiting Hirely Health's remedies under clause 15 (Termination):
  1. the Agency shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
  2. Hirely Health may suspend all Services until payment has been made in full.
8. All amounts due under the Contract from the Agency to Hirely Health shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Limitation of liability
1. References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Hirely Health's liability arising out of or in connection with this Agreement shall not exceed an amount equal to the Charges it has received from the Agency within the previous 12 month period.
3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  1. death or personal injury caused by negligence; or
  2. fraud or fraudulent misrepresentation.
4. Hirely Health is not liable for any loss or damage, even if foreseeable, arising under or in connection with:
  1. the Agency's use of, or inability to use, the Platform;
  2. the Agency's use of or reliance on any content displayed on the Platform (including, without limitation, any content posted by any Candidate or other third parties using the Platform). Hirely Health takes no responsibility for any review, onboarding, screening, compliance or vetting of Candidates, or any pre-employment checks.
5. Subject to clause 12.4, neither party will be liable to the other for any loss or damage relating to:
  1. loss of profits, sales, business, or revenue;
  2. business interruption;
  3. loss of anticipated savings;
  4. loss of business opportunity, goodwill or reputation; or
  5. any indirect or consequential loss or damage.
Indemnity
1. The Agency will indemnify, defend and hold harmless Hirely Health and its directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable legal fees and costs) that result from or arise out of:
  1. the Agency's negligence or breach of contract in connection with the performance of this Contract;
  2. the Agency's use of and access to the Platform and Services;
  3. the Agency's infringement of any third party Intellectual Property Rights; or
  4. any amounts awarded against or required to be paid resulting from a finding by a court or tribunal of competent jurisdiction that Hirely Health or any indemnified person is an employer or related employer of any Candidate employed, retained or placed by the Agency.
Dispute resolution
1. In the case of a dispute arising out of or in connection with this Contract, the parties' Representatives shall make every reasonable effort to communicate and cooperate with each other with a view to resolving the dispute.
2. Nothing in this Contract shall prevent either party seeking from any court any interim or provisional relief that may be necessary to protect the rights or property of that party or that relates to the security of confidential information, pending resolution of the relevant dispute.
Termination
1. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
  3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
2. Without affecting any other right or remedy available to it, Hirely Health may suspend all or part of the Services and/or terminate the Contract with immediate effect by giving written notice to the Agency if:
  1. the Agency fails to pay any amount due under the Contract on the due date for payment; or
  2. there is a change of control of the Agency; or
  3. the Agency fails to comply with the Code of Conduct or Hirely Health receives any complaint from another user of the Platform in respect of the Agency's use of the Platform or the Services.
3. On termination of the Contract for whatever reason:
  1. the Agency's access to the Platform shall immediately cease;
  2. the Agency shall immediately pay to Hirely Health all of Hirely Health's outstanding unpaid invoices and interest and, in respect of Charges incurred for which no invoice has been submitted, Hirely Health may submit further invoices, which shall be payable immediately on receipt;
  3. any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract (including, without limitation, in respect of Reconciliations and the Agency's obligation to pay ongoing Charges for eligible Placements agreed during or following termination of the Contract) shall remain in full force and effect; and
  4. termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
General
1. Force majeure
  1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Assignment and other dealings
  1. The Agency shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Hirely Health's prior written consent.
  2. Hirely Health may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
3. Confidentiality
  1. Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 16.3.2. The Agency shall especially not use any of Hirely Health's confidential information to develop, enhance or operate a platform that competes with the Platform, or assist a third party to do the same.
  2. Each party may disclose the other party's confidential information:
    (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 16.3; and
    (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
4. Entire agreement
  1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
5. Assignment
  1. Hirely Health may assign or transfer its rights and obligations under the Contract to a subsequent owner or operator of the Platform in a merger, acquisition or sale of all or substantially all of Hirely Health's assets. The Agency must not assign or transfer the Contract or any or all of its rights without the prior written consent of Hirely Health. This Contract will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties.
6. Variation
  1. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
7. Waiver
  1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
8. Severance
  1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.8 shall not affect the validity and enforceability of the rest of the Contract.
9. No partnership
  1. Each party to this Contract is an independent contractor in relation to the other party with respect to all matters arising under this Contract. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
10. Notices
  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be sent by email to the email address of the receiving party set out in the Quotation Document.
  2. Any notice or communication shall be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.10.2, business hours means 9.00am to 5.00pm on Business Day in the place of receipt.
  3. This clause 16.10 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11. Third party rights
  1. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12. Governing law
  1. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
13. Jurisdiction
  1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

SCHEDULE 1: SERVICES

Hirely Health provides the Platform to match Candidates and agencies. The Platform works as follows (although precise functionality will be updated from time to time):
1. Candidates sign-up to the Platform by creating a profile which includes their employment, experience and education information.
2. Agencies can browse the Candidate profiles and decide to express an interest in a Candidate using the "matching" function within the Platform.
3. If the Candidate accepts interest, the Candidate will be introduced to the agency via an automated email.
4. The Candidate's contact details will also be visible to the agency once the match has been approved by the candidate.
Hirely Health may also provide other functionality from time to time, such as chat functionality to allow agencies to communicate directly with Candidates.
Hirely Health will make reasonable efforts to provide the Platform to enable agencies to find Candidates, however, Hirely Health does not, under any circumstances, represent, assume a warranty or guarantee or undertake in any other way that the Agency will find a match through the Platform.

SCHEDULE 2: DATA PROTECTION

Hirely Health agrees to make available Candidate Personal Data to the Agency in the UK. The Agency agrees to use Candidate Personal Data within the UK on the terms set out in this Schedule.

Interpretation
The following additional definitions apply in this Schedule.
1. Definitions:
  Agreed Purpose: has the meaning given to it in clause 2 of this Schedule.
  Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 (SI 2003 No. 2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner and applicable to a party.
  UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
  Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Candidate Personal Data.
  Special Categories of Personal Data: the categories of Personal Data set out in the Data Protection Legislation.
  Subject Rights Request: the exercise by a data subject of their rights under the Data Protection Legislation.
  Candidate Personal Data: Personal Data made available via the Platform which identifies and relates to Candidate.
2. Controller, Processor, Information Commissioner, Data Subject and Personal Data, Processing and appropriate technical and organisational measures shall have the meanings given to them in the Data Protection Legislation.
Purpose
1. This Schedule sets out the obligations of the parties in relation to Candidate Personal Data when Hirely Health provides the Agency with access to the Platform. It defines the principles and procedures that the parties shall adhere to and the responsibilities the parties owe to each other.
2. The parties consider that the provision by Hirely Health of access to Candidate Personal Data is necessary to enable the effective operation of the Platform and the supply by Hirely Health of services to both the Candidate and the Agency.
3. The parties agree to only Process Candidate Personal Data, as described in 4.1 and 4.2 for the purpose of providing and making use of the Services.
4. The parties shall not Process Candidate Personal Data in a way that is incompatible with the purposes described in this clause (Agreed Purpose).
Compliance with national data protection laws
1. Each party must ensure compliance with applicable Data Protection Legislation at all times during the term of the Contract.
2. Each party has such valid registrations as are required by the Information Commissioner which, by the time that the data sharing is expected to commence, covers the intended data sharing pursuant to the Contract, unless an exemption applies.
Candidate personal data
1. The following types of Personal Data will be accessible via the Platform during the term of the Contract:
  (a) Name, address, and contact information
  (b) Information relating to background, employment, experience, qualifications and education
2. The following types of Special Categories of Personal Data may be accessible via the Platform during the term of the Contract:
  (a) Racial or ethnic origin;
  (b) Political opinions;
  (c) Religious or philosophical beliefs;
  (d) Trade-union membership;
  (e) Data concerning a natural person's physical or mental health or condition, sex life or sexual orientation.
Lawful, fair and transparent processing
1. Each party shall ensure that it Processes the Candidate Personal Data fairly and lawfully in accordance with 5.2 during the term of the Contract.
2. Each party shall ensure that it has legitimate grounds under the Data Protection Legislation for the Processing of Candidate Personal Data.
Data subjects' rights
1. The parties each agree to provide such assistance as is reasonably required to enable the other party to comply with Subject Rights Requests in relation to Candidate Personal Data within the time limits imposed by the Data Protection Legislation.
2. Each party is responsible for maintaining a record of Subject Rights Requests in relation to Candidate Personal Data, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.
Data retention and deletion
1. The Agency shall not retain or process Candidate Personal Data for longer than is necessary to carry out the Agreed Purpose.
2. Notwithstanding 7.1, the parties shall retain Candidate Personal Data in accordance with any statutory or professional retention periods applicable in their respective countries and/or industry.
3. The Agency shall ensure that any copy of Candidate Personal Data it retains for its purposes is securely destroyed in the following circumstances:
  (a) on termination of the Contract;
  (b) on expiry of the term of the Contract; or
  (c) once Processing of the Candidate Personal Data is no longer necessary for the purposes it was originally accessed, as set out in 2.3.
Transfers
1. For the purposes of this clause, transfers of Personal Data shall mean any sharing of Personal Data by the Agency with a third party, and shall include the following:
  (a) subcontracting the processing of Candidate Personal Data; and
  (b) granting a third party Controller access to the Candidate Personal Data.
2. If the Agency appoints a third party Processor to Process the Candidate Personal Data it shall comply with the relevant provisions of the Data Protection Legislation and shall remain liable to Hirely Health for the acts and/or omissions of the Processor.
3. The Data Receiver may not transfer Candidate Personal Data to a third party located outside the UK unless it:
  (a) complies with the provisions of the Data Protection Legislation in the event the third party is a joint controller; and
  (b) ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferee otherwise complies with the Agency's obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any Candidate Personal Data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
Security
1. The Supplier shall make Candidate Personal Data accessible to the Agency only via the Platform.
2. The parties undertake to have in place throughout the term of the Contract appropriate technical and organisational security measures to:
  (a) prevent (i) unauthorised or unlawful processing of the Candidate Personal Data; and (ii) the accidental loss or destruction of, or damage to, the Candidate Personal Data
  (b) ensure a level of security appropriate to (i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and (ii) the nature of the Candidate Personal Data to be protected.
Personal data breaches and reporting procedures
1. The parties shall each comply with its obligation to report a Personal Data Breach in relation to Candidate Personal Data to the Information Commissioner and (where applicable) Data Subjects under the Data Protection Legislation and shall each inform the other party of any such Personal Data Breach irrespective of whether there is a requirement to notify the Information Commissioner or Data Subject(s).
2. The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Personal Data Breach in relation to Candidate Personal Data in an expeditious and compliant manner.
Resolution of disputes with data subjects or the information commissioner
1. In the event of a dispute, complaint or claim brought by a Data Subject or the Information Commissioner concerning the processing of Candidate Personal Data against either or both parties, the parties will inform each other about any such disputes, complaints or claims, and will cooperate with a view to settling them amicably in a timely fashion.
2. The parties agree to respond to any generally available non-binding mediation procedure initiated by a Data Subject or by the Information Commissioner. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
3. Each party shall abide by a decision of a competent court or of the Information Commissioner.
Changes to the applicable law
If during the term of this Contract the Data Protection Legislation changes in a way that this Schedule is no longer adequate for the purpose of governing lawful data sharing exercises, the parties agree that they will negotiate in good faith to review the provisions of this Schedule in the light of the changes.