January 2004 Page 1 D. CONFIDENTIALITY AGREEMENT [This agreement has been drafted in response to the growing practice by clients of outsourcing their recruitment needs to a managing agency or “Master Vendor”. This type of arrangement means that second tier suppliers do not have a direct contractual relationship with the client and therefore may not be able to protect their database and other information against misuse by the client. The following agreement is a three-way agreement between the client, intermediary and you, the second tier agency. The first challenge will be to convince the client and intermediary that they must sign this agreement. The second challenge will be to enforce any alleged breach of confidence as the temporary workers themselves may willingly provide their details direct to the client or intermediary. One important point to note is that if there is a clause in the terms of business provided by the intermediary headed “Entire Agreement” or which effectively states that the Terms of Business are to be regarded as the only contract documentation, this confidentiality agreement may be rendered invalid. It is also important to note that clause 10 of this agreement provides the right for you to charge either the intermediary or the client a fee in the event that the use of confidential information supplied by you results in an engagement of the temporary worker (i.e. a temp-to-perm or temp-to-temp fee). This clause may be contrary to the Terms of Business provided by the Intermediary and may therefore be unenforceable. In addition, any changes made to the Conduct of Employment Agencies and Employment Businesses Regulations 1976 affecting your right to charge temp to perm fees will need to be reflected here. (The REC will notify members of any necessary amendments in due course). Furthermore the client and intermediary may well be reluctant to sign an agreement with this clause 10. If that is the case then clause 10 should be deleted and you will have to insert clause 10(A) which states that an engagement would be a breach of the agreement and sue for damages for breach of contract. One alternative to this agreement is requesting a clause to be inserted in the Terms of Business with the Intermediary whereby the intermediary “agrees that it will not and it will ensure that the client will not record, store or process the personal contact details of the temporary workers or permanent candidates supplied by the agency for any other purposes than sourcing the said temporary worker or candidate through the agency. THIS AGREEMENT is made on the day of 200 BETWEEN: (1) [Insert name of Intermediary company] of [insert address] (“the Intermediary”); (2) [Insert name of the end-user client] of [insert address] (“the Client”); and (3) [Insert name of your agency e.g. ABC] of [insert your agency’s address] (“ABC”). WHEREAS ABC is a recruitment agency. The Client has appointed the Intermediary to develop and operate a full range of human resources services for the Client, including the supply of [permanent] [both temporary and permanent] workers as and when required. Consequently, the Intermediary may from time to time call upon the recruitment services of ABC in order to assist in the supply of workers to the Client and in doing so may come into possession of confidential and/or proprietary information or trade secrets belonging to ABC, its candidates and/or clients, which may in turn be provided to the Client. In consideration for the supply of its services, ABC wishes to protect the confidentiality of the information supplied, whether directly or indirectly, to the Intermediary or Client. THEREFORE THE PARTIES HERETO HAVE AGREED AS FOLLOWS: 1. In this Agreement the following definitions apply:-January 2004 Page 2 “Engagement” means any employment or use, on a permanent or temporary basis, of the services of any temporary worker or any candidate for a permanent vacancy, whose details and/or services are provided by ABC, whether under a contract of service or for services, an agency, licence, franchise or partnership arrangement, or any other engagement. “Recruitment Services” means the information and introductions provided by ABC to the Intermediary with a view to supplying temporary workers and/or candidates to the Client. “Services” means the human resources function carried out by the Intermediary for the Client, including the supply of temporary and/or permanent workers. 2. The Client and Intermediary both acknowledge that in the course of the provision of the Services and as a result of the use of the Recruitment Services, they may receive or have access to trade secrets or information which is confidential to ABC its clients or candidates. This information may include, but shall not be limited to, information relating to the operations, commercial and financial arrangements, communications strategies, business management, financial or marketing activities of ABC, its clients or candidates, and information derived from ABC’s computer programmes and databases about the temporary workers and candidates whom it introduces and supplies to the Intermediary (the “Confidential Information”). 3. In consideration of ABC’s provision of Confidential Information to the parties and the supply of the Recruitment Services, the Intermediary and the Client agree to the terms set out in this Agreement. 4. This Agreement shall not apply to Confidential Information which is or comes into the public domain other than through a violation of the terms of this Agreement by the Client or Intermediary or which is required to be disclosed by law, or a competent authority. 5. For the avoidance of doubt the Confidential Information will remain at all times the property of ABC. Neither the Client nor the Intermediary will be deemed by virtue of this Agreement or by its access to such Confidential Information to have acquired any right or interest in the Confidential Information which is provided or created in the performance of the Recruitment Services. 6. Each of the Client and Intermediary undertakes to hold any Confidential Information in the strictest confidence and not to disclose it to any third party, including any of the Client’s or Intermediary’s officers or employees, except as is strictly necessary for the performance of the Services. The Client and Intermediary further undertake to use the Confidential Information solely and exclusively for the purposes of the Client’s recruitment requirements as disclosed to ABC and for which the services of ABC have been secured, and to afford the Confidential Information the same level of protection against unauthorised disclosure or use as the Client and Intermediary use to protect their own respective confidential information. Both the Client and Intermediary hereby confirm January 2004 Page 3 that any processing of Confidential Information which includes data about temporary workers and/or candidates will comply with the provisions of the Data Protection Act 1998. 7. The Client and/or Intermediary shall notify ABC promptly of any unauthorised use or disclosure of the Confidential Information and will provide such assistance and cooperratio as is required or requested by ABC to prevent or minimise further unauthorised uses or disclosures. 8. Each of the Client and Intermediary agree that, at the request of ABC, it will immediately return all documents (including copies), disks, tapes and other material (in whatever medium stored) held by the Client or Intermediary, or under its control, which contain any Confidential Information. 9. The Client and Intermediary each undertake to ensure that all of the Confidential Information supplied by ABC and relating to particular temporary workers or candidates introduced by ABC in the course of the Recruitment Services shall be deleted from their respective databases at the end of any Engagement or, where no Engagement takes place, within 1 week of the rejection of the temporary worker’s or candidate’s services. 10. The Client and Intermediary each accepts that all introductions of temporary workers and/or candidates for permanent vacancies along with all information relating to such personnel provided by ABC are strictly confidential. The Engagement by a Client or Intermediary, otherwise than by using the services of ABC, of any temporary worker or candidate for a permanent vacancy, whether for a definite or indefinite period, or the introduction of such personnel to an associated company or client of the Intermediary or Client, or to an third party, with a resulting Engagement, renders the Client and/or Intermediary (as applicable) subject to the payment of a fee as if for a permanent placement calculated in accordance with ABC’s terms of business, from time to time in force, a copy of which is attached to this Agreement. [Alternative clause 10 – please see note at the beginning of this document] 10(A). The Client and Intermediary each accept that all introductions of temporary workers and/or candidates for permanent vacancies along with all information relating to such personnel provided by ABC are strictly confidential. The Engagement by a Client or Intermediary, otherwise than by using the services of ABC, of any temporary worker or candidate for a permanent vacancy, whether for a definite or indefinite period, or the introduction of such personnel to an associated company or client of the Intermediary or Client, or to an third party, with a resulting Engagement, constitutes an improper use of ABC’s Confidential Information and represents a breach of this Agreement. 11. Without prejudice to any other rights or remedies that may be available the parties acknowledge that damages may not be an adequate remedy for a breach of this Agreement and that in the event of any actual or threatened breach ABC may be entitled to obtain from any court of competent jurisdiction injunctive relief, specific performance and other equitable relief. 12. This Agreement shall be governed by and construed in accordance with the English law January 2004 Page 4 and the parties hereto shall submit to the non-exclusive jurisdiction of the English courts. 13. The terms of this Agreement shall continue indefinitely, notwithstanding the termination of any agreement between the parties regarding the provision of the Services or the Recruitment Services. 14. The parties hereto have read and have understood the terms and conditions of this Agreement. Signed for and on behalf of the Intermediary’s authorised representative: Name: _____________________ Signature: ________________ Position:____________________ Dated: ___________________ Signed for and on behalf of the Client’s authorised representative: Name:_____________________ Signature: _______________ Position:___________________ Dated: __________________ Signed for and on behalf of ABC’s authorised representative: Name:___________________ Signature: ________________ Position:__________________ Dated: ___________________