Legal
Terms & Conditions
Terms and Conditions of Business for the Introduction of Candidates – Contract Placements.
PLEASE READ CAREFULLY AS THESE TERMS AND CONDITIONS FORM PART OF A BINDING CONTRACT
Background
The Company, Technology Search Group Pty Ltd (ACN 609 202 628) trading as ‘Lumika Search’ conducts a recruitment and placement business. The Client has identified a need for technical help and assistance and wishes to engage the Company to provide the Candidate. In some cases, the Candidate will be engaged by the Company directly and in other cases may operate through a trading trust or corporate structure (the Candidate’s Entity). These Terms and Conditions are intended to cater for both types of scenarios.
1. Definitions and Interpretation
In the Agreement the following definitions apply, unless the context otherwise requires:
“Agreement” means the agreement between the Company and the Client, incorporating these Terms and Conditions, Schedule 1, the Worksheets, and any other documents expressly incorporated into the Agreement by the clauses of these Terms and Conditions.
“Business Day” means any day except a Saturday, Sunday or gazetted public holiday in the place where the relevant action is to be performed, or relevant notice is to be served.
“Candidate” means the person(s) Introduced to the Client by the Company and will include the Candidate(s) specified in Schedule 1.
“Candidate’s Entity”, if one exists, includes any trading trust or corporate structure through which the Candidate operates, whether controlled by the Candidate or not, and which has a separate agreement with the Company under which the Company may place the Candidate with the Client to provide the Services.
“Charge-Out Rate” means the hourly or daily Fee rate charged for the placement of the Candidate with the Client, based on various relevant factors including Candidate’s qualifications and experience, and the demand for workers with the Candidate’s specific characteristics, as set out in Schedule 1.
“Client” means person, firm or corporate body identified in Schedule 1 to which the Candidate is introduced and supplied by the Company.
“Company” means Technology Search Group Pty Ltd (ACN 609 202 628) trading as Lumika Search.
“Confidential Information” includes any non-publicly available information relating to the business and affairs of either Party, and in particular includes any information regarding the identity, business and affairs of either Party’s customers, clients, and potential customers and clients, which comes to the other Party’s attention or possession and which the first-mentioned Party has clearly indicated it regards as confidential, whether or not the information is tangible or is marked as ‘confidential’ or something similar, but does not include: (a) any part of the information already in the public domain at the time of disclosure by the first-mentioned Party to the other Party; (b) any information that the other Party can demonstrate it has invented independently of any disclosure from the first-mentioned Party; or (c) any information that the other Party has received from a third party which is not in breach of any confidentiality obligation
“Engagement” means the engagement, employment, retention or utilisation of a Candidate by the Client on a non-permanent basis, whether for a continuous period or fragmented periods, whether directly or indirectly, and whether in a full-time or part-time capacity, and irrespective of whether any probationary period applies, and “Engage” has a corresponding meaning.
“Fee” means a fee payable by the Client under these Terms and Conditions, for any part of the Services.
“GST” means the goods and services tax of the Commonwealth of Australia.
“Intellectual Property Rights” include but are not limited to copyright, patents, utility models, trade marks, service marks, design rights, database rights and proprietary information rights in all materials, designs, programs, reports, manuals, and visual aids, whether registered or registrable or not.
“Introduction” means the provision of any information to the Client by the Company (whether in writing or orally) which identifies a prospective Candidate’s Entity or Candidate, as well as the introduction of a Candidate or potential Candidate to the Client, whether or not the Candidate was previously known to the Client.
“Introduction Fee” means a fee payable by the Client to the Company equivalent to 12 weeks of the Charge-Out Rate specified in Schedule1, plus GST.
“Online Worksheet System” includes any website and other components that the Company establishes for the online completion and submission of Worksheets.
“Party” means either of the Company or the Client, and “Parties” means both of them.
“Purchase Order” means a form submitted by the Client to the Company via the Online Worksheet System or as otherwise agreed between the Parties, in compliance with clause 4.9.
“Related Body Corporate” has the meaning given in the Corporations Act 2001 (Cth).
“Restriction Period” means the period of 12 months following either:
the Introduction of the Candidate’s Entity or its Candidate(s), whether or not the Candidate is Engaged; or
the termination or expiration of the Agreement, if the Candidate is Engaged;
whichever event occurs last.
“Services” includes any part of the work or services performed by the Company for the Client under the Agreement, including via the Candidate or, where applicable, the candidate’s Entity.
“Terms and Conditions” means these Terms and Conditions, as updated by the Company from time to time.
“Transfer Fee” means a Fee (plus GST) payable by the Client to the Company, calculated by multiplying the amount of the Fee that would be charged for the Candidate for a full working week (i.e. based on the hourly or daily Charge-Out Rate) by the number of weeks equal to the duration of the Agreement, and in accordance with the sliding scale set out below:
| Duration of the Agreement | Number of weeks |
|---|---|
| 0–9 months | 10 weeks |
| 9–12 months | 8 weeks |
| 12 months and over | 4 weeks |
“Worksheet” means a worksheet detailing the Services provided by a Candidate during a particular period, in particular showing the number of hours worked by the Candidate in that period.
1.2 The following principles and rules will apply to the interpretation of these Terms and Conditions:
1.2.1 words in the singular include the plural and vice versa;
1.2.2 any gender includes the other genders;
1.2.3 if a word or phrase is defined then its other grammatical forms have corresponding meanings;
1.2.4 “includes” means includes without limitation;
1.2.5 no rule of construction will apply to a clause to the disadvantage of a Party merely because that Party put forward the clause or would otherwise benefit from it;
1.2.6 a reference to:
a person includes a partnership, joint venture, unincorporated association or corporation;
a person includes the person’s legal personal representatives, legal successors, assigns, and persons substituted by novation;
any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;
an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
“$”, “dollars” or “AUD” is a reference to the lawful currency of the Commonwealth of Australia; and
the “Candidate” in relation to any action, omission or disclosure by the Client, includes the “Candidate’s Entity”;
1.2.7 if the date on or by which any act must be done under this Deed is not a Business Day, the act must be done on or by the next Business Day;
1.2.8 headings are for convenience and do not affect the interpretation of this Deed;
1.2.9 where there is any inconsistency between the clauses and any other document referred to in the Deed, the terms of the Deed must be followed wherever possible;
1.2.10 if a Party to this Deed comprises multiple persons or entities, for example a partnership, then each of those persons or entities is jointly and severally liable to perform the obligations of the relevant Party, and is jointly and severally liable for the liabilities of that Party arising from this Deed, except to any extent explicitly provided by this Deed;
1.2.11 if a Party to this Deed is a trustee, it is presumed to enter into this Deed in that capacity, and warrants that the assets of the relevant trust are available to meet any liabilities of the Party under this Deed; and
1.2.12 if any provision of these Terms and Conditions specifies that a consent or notice must be given “in writing”, then that consent or notice may be given by email provided that the requirements of clause 12.13 are complied with by the Party giving the consent or notice.
2. Term and Basic Agreement
The Agreement commences operation from the date of the Introduction of a Candidate to the Client, and ends:
if the Candidate is Engaged, after the period specified in Schedule 1, or, if no period is specified there, 12 months, plus the Restriction Period; or
if the Candidate is not Engaged, or is Engaged but the Agreement is terminated under clause 10, 12 months after the Introduction.
A separate Agreement is created in respect of each Candidate, incorporating these Terms and Conditions with a separate Schedule 1 for each Candidate, and each Agreement comes into effect and ends as provided by clause 2.1.
Where the Candidate operates through a Candidate’s Entity, the Parties agree that:
the Company will have a separate, written agreement with the Candidate’s Entity which permits the Candidate to be available for placement by the Company with the Client for the duration of this Agreement;
the Client will owe the Candidate’s Entity any relevant obligations imposed on the Client towards the Candidate’s Entity by these Terms and Conditions; and
the Candidate's Entity will be regarded by the Parties as the subcontractor of the Company, through which the Company will provide the Services via the Candidate.
2.4 Where the Candidate does not operate through a Candidate’s Entity, the Parties agree that the Company will have a separate employment agreement with the Candidate which permits the Candidate to be available for placement by the Company with the Client for the duration of this Agreement, and the Client must treat the Candidate as the employee of the Company, through whom the Company will provide the Services to the Client.
3. Performance of the Services
Services
3.1.1 The Services will be provided for the period(s) specified in Schedule 1.
3.1.2 The Parties agree that:
(a) It is the Client’s responsibility to clearly specify its requirements and timeframes to the Company for the Introduction of the Candidate and the provision of the Services, prior to the Introduction of a Candidate, and also to provide all other information reasonably required by the Company, the Candidate’s Entity, and/or the Candidate in order to ensure that the Candidate is ready and able to provide the Services required by the Client.
(b) All appropriate reviews and inquiries should be conducted by the Client prior to the Client authorising the Candidate’s relevant Worksheet(s).
(c) The Client agrees that the authorisation of a Worksheet by the Client will commit the Client to paying the relevant invoice(s) provided by the Company. The Client may raise a dispute regarding an approved Worksheet under clause 12.12, but agrees to do so only after paying the relevant invoice, unless the Company agrees otherwise in writing.
(d) The Client will, at its own expense, provide the Company, the Candidate’s Entity and/or the Candidate with all documents, other materials and data necessary for the successful selection and proper Introduction of the Candidate, and for the provision of the Services to proceed successfully.
(e) The Candidate may use its or the Candidate’s Entity’s own equipment to deliver the Services, except where the Client reasonably requires the Candidate to use only the Client’s equipment, in accordance with a written arrangement with the Company, and that written arrangement is hereby incorporated into the Agreement.
(f) Some of the support functions for the Candidate’s placement with the Client that are included in the Services, such as payroll management, including the making of superannuation guarantee contributions and the deduction of PAYG income tax, may be outsourced by the Company to a third party contractor, including, where appropriate, the Candidate’s Entity. The Client is not liable or responsible for such a contractor except to the extent required by clause 2.3.2 (where it applies), but must cooperate with the contractor where reasonably necessary for the proper administration of the Services.
3.1.3 The Candidate may perform the Services from the Candidate or the Candidate’s Entity's place of business, where arranged in advance in writing between the Company and Client, and that writing is hereby incorporated into the Agreement.
3.1.4 The Candidate’s Entity and/or the Candidate may schedule the delivery of the Services at their discretion subject to any terms set out in Schedule 1, or any relevant written arrangement between the Company and the Client, and that writing is hereby incorporated into the Agreement.
3.1.5 The Client will ensure that:
(a) The Candidate and, where relevant, the Candidate’s Entity, is accorded sufficient access to any of the Client’s premises, information, data or personnel and the use of any equipment which is reasonably necessary for the successful provision and completion of the Services.
(b) While the Candidate is present at the Client’s Premises, the Client will provide a suitable place of work for the Candidate and any materials required by the Candidate perform the Services, in a good condition and sufficient for that purpose.
(c) The Candidate and, where relevant, the Candidate’s Entity, is informed of all relevant policies and procedures that the Client reasonably requires the Candidate to comply with, or reasonably should inform the Candidate about, including in particular occupational health and safety procedures and guidelines and fire evacuation protocols.
3.1.6 The Client agrees that the Candidate cannot become the Client’s employee, regardless of the extent to which the Candidate is integrated into the Client’s operations, unless the following procedure is followed:
(a) the Candidate, and, if applicable, the Candidate’s Entity, must request the Company to be released from the Candidate’s employment or the Candidate Entity’s subcontractor agreement with the Company, in compliance with all procedures specified by that agreement; and
(b) the Client must pay the Introduction Fee or the Transfer Fee, as required by clause 11.
3.1.7 The Parties agree that:
(a) While the Candidate is present at the Client’s premises for the purposes of the Agreement, the Client will ensure that all occupational health and safety standards required by applicable occupational health and safety legislation are observed, and that the Candidate is not exposed to any unreasonable or unnecessary hazards.
(b) The Client undertakes to notify the Company, the Candidate, and, where relevant, the Candidate’s Entity, of any specific risks to the Candidate’s health or safety known to the Client, and also what steps the Client has taken to prevent or control such risks.
(c) The Client hereby declares and warrants that it knows of no reason why it could be detrimental to the Candidate to be involved in the provision of the Services, which has not been disclosed, prior to the commencement of the Candidate’s involvement in the delivery of the Services, to the Company, the Candidate and the Candidate’s Entity.
(d) The Client, for the term of the Engagement, will hold and maintain adequate insurances, including public liability insurance, to cover all reasonably foreseeable risks to the Candidate, the Candidate’s Entity, and the Company arising from the circumstances of the Engagement.
Standard of Candidate and Services
The Parties agree that:
the Company will use its best endeavours to ensure that the Candidate, and, where relevant, the Candidate’s Entity, has suitable experience and qualifications to deliver the Services with reasonable skill and care, and in this regard the Company warrants to the Client that the Company has made all reasonable enquiries of the Candidate and (where applicable) the Candidate’s Entity;
the Company does not test the Candidate’s technical skills and it is the Client’s responsibility to satisfy itself as to the Candidate’s technical ability to provide the Services, by interviewing and/or testing the Candidate at or before the commencement of the Engagement;
the Company accepts no liability for any absence of any particular characteristics, or any lack of competence, skills or knowledge of the Candidate, which make the Candidate unsuitable for the Engagement;
the Client relies on its own judgment when requesting the provision by the Company of a person with the Candidate’s qualifications and experience, and also when deciding that the Candidate is suitable for the Engagement; and
the Company gives no warranty to the Client that the Engagement will be of any particular value to the Client or its business.
3.2.2 The Client will notify the Company promptly of any complaints that the Client has concerning the Candidate’s performance of the Services.
3.3 Amendment of Scope of Services
The Company may amend Schedule 1 by agreement with the Client, in which case the amended schedule will become substituted for any original Schedule 1 from the time the amended schedule is signed and dated by the Parties, or at such other time as is indicated in the amended schedule.
4. Payment of Fees
The Parties agree that:
the Client will be liable to pay, and will pay, the Company all appropriate Fees for all Services performed by the Candidate;
the Fees payable by the Client for the Services will be based on the charge-out rates, including additional hour rates and special rates for weekends and public holidays, set out in Schedule 1;
the Fees will be invoiced by reference to the number of hours/days/weeks (as may apply) during which the Services are provided during the invoiced period, and the relevant charge-out rate;
all Fees are exclusive of Goods and Services Tax (GST), and, where applicable, GST at the prevailing rate will be charged, and will be payable by the Client in addition to the relevant Fees; and, where GST is payable, the Company will issue the Client with a tax invoice compliant with the GST laws;
the Client must not pay any Fees directly to the Candidate or the Candidate’s Entity, and the Client discharges all liability to pay for the Services when it pays the appropriate Fees to the Company, but the Client may reimburse the Candidate and/or Candidate’s Entity directly for expenses as permitted by clause 4.5; and
where the Candidate operates through the Candidate’s Entity, it is the Company’s responsibility to settle any liabilities that the Company has to the Candidate’s Entity with regard to the provision of the Services or otherwise.
The Parties agree that:
the Company will provide the Candidate and the Client with access to the Online Worksheet System;
the Candidate will use the Online Worksheet System to record the times that the Candidate spends in performing the Services;
the Client will comply with all reasonable guidelines and terms of use provided by the Company for the Online Worksheet System, and those guidelines and terms of use are hereby incorporated into the Agreement;
the Client will be notified by the Company to approve and submit the Candidate’s Worksheets online;
when authorising any Worksheet, it is the Client’s responsibility to ensure that the Worksheet is accurate and correctly records the time(s) worked by the Candidate;
unless the Client notifies the Company that the Client has any concerns regarding the quality of the Services, authorisation of a Worksheet will be deemed to be a notification by the Client to the Company that the Client is satisfied with the quality of the relevant Services;
the failure of the Client to authorise a Worksheet, for any reason, does not relieve the Client of its obligation to pay the relevant Fees for the Services reflected in the Worksheet; and
the Company may allow the Client to manually submit paper Worksheets, instead of using the Online Worksheet System, where there are appropriate reasons for doing so, in the opinion of the Company.
The Client will authorise all Worksheets that it is notified to review, via the Online Worksheet System without delay, or, in the case of manual Worksheets, sign the worksheets and deliver those promptly to the Company. In all events, the Client is obliged to authorise a Worksheet (whether online or manually) within 10 Business Days of receiving the notification that the Worksheet is ready for review and authorisation.
The Parties acknowledge and agree that:
the Company relies on the fact that the Client has authorised the relevant Worksheets when making payments to the Candidate’s Entity and/or the Candidate in respect of the provision of the Services;
the Company may rely on any refusal by the Client to authorise a Worksheet by disputing (including in legal proceedings) the Candidate’s Entity’s and/or the Candidate’s right to payment;
the Client will assist the Company if the Company needs to verify the work hours claimed by the Candidate on a Worksheet; and
the Client must retain one copy of each approved Worksheet for its own records.
With regard to expenses, the Parties agree that:
the Client will authorise a representative of the Client to approve all expenses incurred by a Candidate while performing the Services, and must provide notification of all such approvals to the Company either in writing or through the Online Worksheet System;
the Client may reimburse approved expenses directly to the Candidate or the Candidate’s Entity, (as may apply); and
the Client will retain copies of all expense receipts submitted for approval by the Candidate for the Candidate’s Entity.
The Client agrees that it will pay all invoices for Fees presented by the Company for payment, and the Client warrants that these will be paid within 10 Business Days of the relevant invoice being presented, unless otherwise specified in the invoice or unless otherwise agreed in writing with the Company. No Fee rebates will apply.
In the event of late payment of any invoice, the Client will be liable to pay, and will pay to the Company, interest on the overdue amount at the rate of 6% per annum, calculated daily, or the interest rate applicable to judgment debts in the Supreme Court of NSW at the relevant time, whichever is higher. The Client will also be liable to pay any expenses and costs incurred by the Company when enforcing the payment of any overdue invoice or interest, including administrative and legal costs and debt collection commissions and fees.
Under no circumstances will the Client discuss with the Candidate’s Entity and/or the Candidate the charge-out rates on which the Fees charged by the Company to the Client are based.
4.9 If the Client’s internal administrative procedures require a Purchase Order to be generated and provided to the Company, the Client agrees to supply the Company with a Purchase Order that includes any information reasonably required by the Company within 10 Business Days of the last working day covered by any Worksheet approved by the Client. Where the Client fails to do so, the Company may invoice the Client without an accompanying Purchase Order.
5. Special Payment Conditions
The Client will comply with any special conditions regarding the payment of invoices specified in Schedule 1.
6. Intellectual Property Rights; Warranty and Indemnity
6.1 The Company does not claim any Intellectual Property Rights arising from and material produced by the Candidate when delivering the Services, except as provided by clause 6.2, and the Company, to the extent that it is reasonably able to do so, will assist the Client to document and confirm the Client’s ownership of any Intellectual Property Rights that may arise from the delivery of the Services.
6.2 The Company and, where applicable, the Candidate and the Candidate’s Entity, will continue to own all intellectual Property Rights that each of them owns at the commencement of the Engagement, and nothing in the Agreement is intended to transfer any of those rights to the Client. That owner will also own any enhancements to any materials in which those pre-existing Intellectual Property Rights subsist, regardless of whether those enhancements are produced while delivering the Services.
6.3 Where the Client provides any material to the Candidate, the Candidate’s Entity, or the Company in relation to the Agreement or the performance of the Services, the Client warrants that it has full legal rights to deal with all Intellectual Property Rights subsisting in that material, and hereby indemnifies and will continue to indemnify each of the Candidate, the Candidate’s Entity and the Company in respect of any losses and claims arising from a breach of this warranty.
7. Confidentiality
7.1 Except as permitted or required by law, each Party will not disclose any Confidential Information of the other Party to any third party without the other Party’s prior written consent. This prohibition does not prevent the Company from disclosing such information to the Candidate’s Entity or the Candidate, where that disclosure is appropriate for the purposes of properly providing the Services preparing the Candidate and the Candidate’s Entity for the Introduction, or otherwise for the proper administration of the Agreement.
7.2 Each Party will immediately notify the other Party if the first-mentioned Party becomes aware of the misuse of any of the Confidential Information of the other Party by any unauthorised person, and will provide such assistance to the other Party as is reasonable to deal with such an event. This obligation will survive the termination or expiry of the Agreement.
8. Liability: Scope and Limitations
Subject to clauses 8.2 and 8.3 below, the Company hereby indemnifies and will continue to indemnify the Client in respect of the Client’s direct losses attributable to the Company’s negligent acts or omissions in its performance of the Agreement, including the negligent delivery of the Services by the Candidate and the Candidate’s Entity, except to the extent that the losses arise from the Client’s own negligence or wilful misconduct, including that of its principals, employees, other contractors and agents.
The Parties agree that the indemnity given by the Company to the Client in clause 8.1 is limited as follows:
the Company will not have any liability for any of the following things suffered by the Client: any loss of profits or contracts; any special, indirect or consequential loss or damage; any penalties or costs associated with any occupational health and safety prosecution against the Client; or any increased costs or expenses; and
the Company’s liability to the Client under the Agreement will be capped at twice the total value of the Fees paid by the Client under the Agreement, or AUD $600,000, whichever is lower, except in the case of a claim relating to personal injury, including death, resulting from the negligence of the Company, the Candidate or the Candidate’s Entity.
The Company is not liable whatsoever for any loss, expense, damage, costs or delay of the Client arising from:
the lack of skill of the Candidate;
the criminal actions or omissions of the Candidate or the Candidate’s Entity; or
any of the following things:
the misdirection of the Candidate by the Client;
the Candidate following or implementing instructions provided by the Client; or
the failure of the Client to provide the Candidate, the Candidate’s Entity or the Company with clear, unambiguous, accurate, complete or up-to-date information as necessary to properly perform the Services, including to continuously update that information when appropriate; or
(d) any failure of the Client to mitigate its losses as required by clause 8.7.
The Client warrants that it will comply with all laws that apply to it in its dealings with the Candidate, and the Client hereby indemnifies and will continue to indemnify each of the Company, the Candidate and the Candidate’s Entity against any costs, claims, damages and expenses incurred by each of them as a result of any breach of this warranty by the Client.
The Client hereby indemnifies and will continue to indemnify each of the Company, the Candidate and the Candidate’s Entity against any costs, claims, damages and expenses incurred by each of them as a result of any breach by the Client of the Agreement.
Neither Party will have any liability in respect of any delay in carrying out or failing to carry out any of its obligations under the Agreement caused by fire, strikes or other industrial actions or disputes, any extreme weather events, or any other circumstances outside the reasonable control of that Party.
In the event of any breach of the Agreement by the Company, including any failure by the Candidate or the Candidate’s Entity to properly deliver the Services, the Client will be under a duty to take all reasonable and available steps to mitigate its losses resulting from that breach.
9. Substitution of the Candidate
The Parties agree that:
in the event that the Client is dissatisfied with the performance of a Candidate, or otherwise objects to the Candidate on any reasonable ground, the Client may notify the Company in writing that the Client requests the Company to withdraw the Candidate and/or Candidate’s Entity from providing the Services;
in the withdrawal notice, the Client must provide the Company with a clear description of the reasons for the Client’s decision to request the withdrawal;
after receiving the withdrawal notice, the Company must withdraw the Candidate, and, if appropriate, the Candidate’s Entity, and has up to 20 Business Days to do so unless the circumstances are such that withdrawal within a shorter timeframe is reasonably necessary;
regardless of when the Candidate is actually withdrawn, the Client agrees to pay the applicable Fee for the Candidate for 20 Business Days after service of the withdrawal notice;
the Company will provide a substitute Candidate and, if appropriate, Candidate’s Entity, to deliver the Services, either immediately after withdrawal of the first Candidate or within a reasonable timeframe to be agreed in writing by the Company and the Client, but in any event not to exceed 20 Business Days after the withdrawal of the first Candidate, unless the Company and the Client agree otherwise; and
when substituting a Candidate under this clause, the Company and the Client may agree to any further reasonable conditions that they consider appropriate.
The provision of a substitute Candidate under clause 9.1 in itself does not constitute an admission by the Company that any relevant Services provided by the Company, the Candidate and/or the Candidate’s Entity were not in compliance with the Agreement.
If the Candidate is being supplied by the Candidate’s Entity, the Client agrees that the Candidate’s Entity may substitute the Candidate for the purposes of clause 9.1 with another suitable person, provided that:
the Services will remain as specified in Schedule 1;
the Company is reasonably satisfied that the proposed substitute person possesses the necessary qualifications and experience to perform the Services, and
the Client reasonably satisfies itself that the proposed substitute person possesses the necessary skills to perform the Services, after interviewing and/or testing the person and meeting all of the Client’s other obligations under clause 3.1.2; and
the Client is reasonably satisfied that no significant delay in the performance of the Services, and no significant reduction in the quality of the Services, will be caused by the substitution.
The Fees payable by the Client to the Company in respect of the provision of the Services will not be affected by the substitution of the Candidate under this clause 9, but the Parties may agree to alter the Fees in the event that the skills, qualification and experience of the original Candidate and the substituted Candidate are not equivalent, or for any other reason acceptable to the Parties, in which case the Parties will sign and date an edited version of Schedule 1 and the edited version will become incorporated into the Agreement in place of the existing version of Schedule 1.
10. Termination
10.1 Subject to clauses 10.2 to 10.6 below, the Agreement may be terminated at any time by either Party upon the provision of 20 Business Days’ notice to the other Party in writing, unless a different time-frame is specified in Schedule 1.
10.2 In the event that the Candidate’s Entity and/or the Candidate(s) are unable to perform the Services and the Client is advised of this by the Company prior to the start date of the Services, the Company may terminate the Agreement forthwith by notice in writing to the Company, provided that the Client and the Company may agree to proceed with another Candidate and/or Candidate’s Entity.
10.3 Should the Client fail to pay any one invoice rendered in accordance with clause 4.6, then the Company may exercise any of the following rights on notice to the Client:
10.3.1 to terminate the Agreement immediately; and
10.3.2 at the Company’s option, to also terminate all other agreements in force between the Client and the Company immediately; and
10.3.3 to claim all monies due under the terminated Agreement and all other terminated agreements in force between the Client and the Company, as rightfully and immediately due, including Fees for Services in progress unsupported by Worksheets approved by the Client.
10.4 In addition to the grounds for termination provided by clause 10.3, then, subject to any applicable laws, the Company may terminate the Agreement immediately on notice to the Client should the Client:
10.4.1 fail to comply with the provisions of clause 11 in respect of any Candidate;
10.4.2 become insolvent; or
10.4.3 commence winding-up or liquidation proceedings, or if a receiver or administrator is appointed to the Client or any significant part of its assets or undertakings, and, in the reasonable opinion of the Company, that event will significantly affect the capacity of the Client to meet its obligations under the Agreement; or
10.4.4 default on its payment obligations under any other agreement in force between the Client and the Company.
10.5 The Client may terminate the Agreement immediately if it provides satisfactory evidence to the Company, in writing, that either:
10.5.1 the Client, in its reasonable opinion, finds the Candidate to be incompetent to perform the Services; or
10.5.2 it has discovered that the Candidate’s Entity and/or the Candidate has committed an act of fraud or other serious misconduct in relation to the performance of the Services, or has committed another serious criminal offence or is otherwise of bad character, and in the Client’s reasonable opinion, the Client can no longer continue to rely upon the Candidate to deliver the Services; and
the Company is unable to arrange a substitute person in accordance with clause 9.
10.6 Subject to any applicable laws, if, in the reasonable opinion of the Company, the Client’s financial condition is such that it may not be able to meet its continuing obligations under the Agreement, then the Company may request the Client to immediately pay all invoices due under the Agreement together with such further sums as the Company considers necessary, in its reasonable opinion, to secure its position with regard to future sums that will become due under the Agreement, and, if the Client is unable to make such payments then the Company may terminate the Agreement upon 20 Business Days’ notice to the Client. This right of termination is without prejudice to the Company’s other rights under this clause 10.
10.7 Either Party may terminate the Agreement immediately on notice to the other Party should the other Party fail to comply with the provisions of clause 7.
11. Restrictions
11.1 Should the Client, within the Restriction Period, wish to engage the services of the Candidate’s Entity and/or the Candidate(s) other than through the Company, then it must:
11.1.1 in the event that no Engagement has occurred, pay the Introduction Fee; or
11.1.2 in the event that an Engagement has occurred, then, following the termination or expiration of the Agreement, pay the appropriate Transfer Fee.
11.2 Clause 11.1 applies equally to any related Body Corporate or associated entity of the Client, any client of the Client, or any third party to whom the Client introduces the Candidate or the Candidate’s Entity within the Restriction Period, that engages the services of the Candidate or the Candidate’s Entity other than through the Company.
11.3 Clauses 11.1 and 11.2 will survive the termination of the Agreement and will continue to operate for the duration of the Restriction Period, unless a waiver is granted in writing by the Company.
12. General
12.1 The terms of the Agreement including these Terms and Conditions and Schedule 1 may only be varied in writing executed by an authorised representative of each Party.
12.2 The forbearance or failure of the Company to enforce any of its rights or remedies to which it is entitled under the Agreement will not be construed as a waiver of those rights or remedies and will not restrict or prevent the Company enforcing or exercising those rights or remedies in any other instance or at any other time, whether during or after the termination or expiry of the Agreement.
12.3 If any provision of the Agreement is held invalid, illegal or unenforceable for any reason, such provision will be severed and the remainder of the provisions hereof will continue in full force and effect as if the Agreement had been executed without the invalid provision. In the event of a finding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the Parties will immediately commence good faith negotiations to reform the Agreement.
12.4 The Agreement will be governed, construed and will take effect in accordance with the law in force in the State of New South Wales, and will be subject to the non-exclusive jurisdiction of the courts of that State and courts of appeal from them.
12.5 The terms of the Agreement represent the entire Agreement between the Parties in respect of the Candidate to whom this Agreement relates, and supersede any previous representations or agreements in respect of the said Candidate whether recorded in writing or otherwise.
12.6 Nothing in the Agreement will serve to create any employer/employee relationship or principal/agent relationship between:
12.6.1 the Company and the Client; or
12.6.2 the Client and the Candidate’s Entity; or
12.6.3 the Candidate(s) and the Client.
12.7 The Parties acknowledge they may agree to vary the details of Schedule 1 without amending these Terms and Conditions.
12.8 If any provision of these Terms and Conditions is inconsistent with any item of Schedule 1, then the relevant item of Schedule 1 will take precedence and will prevail to the extent of that inconsistency.
12.9 No rights will accrue to any third party under the Agreement except where the language of these Terms and Conditions clearly confer a right or entitlement upon the Candidate and/or Candidate’s Entity.
12.10 Each Party will comply with the Privacy Act 1988 (Cth) in respect of the personal information of any person that it acquires in the course of performing the Agreement.
12.11 The Company may vary these Terms and Conditions from time to time, and any such variation will not affect the Agreement, unless the Client agrees in writing, or that outcome is required in order to comply with any change in the law, but the varied Terms and Conditions will apply to any new agreement made between the Parties after the variation is made.
12.12 In the event that any dispute arises between the Parties regarding the interpretation or implementation of this Agreement, the Parties agree that they must apply the following procedure before resorting to any litigation in relation to the dispute, except for applications for urgent injunctions;
the Party raising the dispute must serve a notice on the other Party, providing adequate particulars of the nature of the dispute;
following service of the notice referred to in paragraph (a) above, the Parties will meet in good faith to negotiate a resolution of the dispute, within five Business Days of service of the notice;
if the dispute is not resolved by negotiation within 10 Business Days of the commencement of the mediation referred to in paragraph (b) above, either Party may refer the dispute to an independent mediator operating under a recognised code of mediation practice, and both Parties will attend the mediation in good faith to resolve the dispute;
if the Parties are unable to agree on a mediator, either of them may request one to be appointed for them by the relevant officer of The Institute of Mediators & Arbitrators Australia;
each Party will bear its own costs of implementing the procedures required by this clause, and each Party will be responsible for one half of the costs of any mediation conducted under this clause.
12.13 Any notice or delivery or communication under this Agreement will be provided by each Party to the other Party at the postal or email addresses specified in Schedule 1, provided that the Parties must, wherever possible:
(a) retain copies of their sent communications; and
(b) verify that their communications are received by the receiving Party;
and also provided, in relation to emails, that the sender does not receive, from its email system or that of the receiver, any notification that the email could not be delivered successfully.
12.14 The Parties’ obligations in the following provisions of the Agreement will survive the termination or expiry of the Agreement, namely: all payment and confidentiality obligations; all warranties, indemnities and declarations; all provisions regarding Intellectual Property Rights; all provisions expressed as having continuing operation; and this clause 12.
12.15 Each Party must do everything, and sign and deliver all documents, as may be reasonably required by the other Party, to give full effect to the Agreement.
12.16 Each Party will bear its own costs of preparing the Agreement.
12.17 The Parties may include special conditions in Schedule 1 that will prevail over the clauses of these Terms and Conditions to the extent of any inconsistency, if those conditions are clearly marked as special conditions for the purposes of this clause.