Agreement

1. Introduction

(a) These Recruitment Terms and Conditions, together with our Privacy Policy, compromise the terms of a legal agreement between Consult BT Pty Ltd (ACN 641 074 697) (Consult BT, we, us or our) and the person or entity listed in the Agreement Details (Customer or you) (Agreement). We agree to provide you with permanent recruitment services as more particularly described in the Agreement Details (the Assignment). You acknowledge that you have read and agreed to the terms contained herein, and agree to be bound by them.

 

(b) You may enter into 1 or more Assignments with Consult BT. Each Assignment will constitute a separate agreement for the provision of permanent recruitment services on the terms and conditions of that Assignment (and will incorporate the terms and conditions of this Agreement). In the event of any inconsistency between this Agreement and any Assignment, the Assignment will take precedence. Further, no terms or conditions set out in any invoice or purchase order (or similar), issued by you, will override this Agreement or an Assignment (and the Agreement and the Assignments will prevail, as the context permits).

 

2. Term

This Agreement commences on the Commencement Date and continues for a period of 2 years, unless terminated early in accordance with this Agreement (Term).

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3. Provision of Services

During the Term, we will provide you with Candidates in accordance with the relevant Assignment (Services).

4. Recruitment Fees

(a) Unless otherwise agreed by the parties in writing, the fee payable by you to Consult BT for Services will be calculated as the percentage of the Total Remuneration Package the Candidate is entitled to receive during the first 12 months of their employment as specified in the Agreement Details (Recruitment Fee). The minimum Fee payable is $11,000.

 

(b) The fee payable for the appointment of:

(i) a Full-Time Candidate is 100% of the Recruitment Fee; and (ii) a Part-Time Candidate is 50% of the Recruitment Fee.

 

(c) Should you engage or employ a Part-Time Candidate and subsequently within a period of 13 months from the date of employment, engage or employ the Part-Time Candidate as a Full-Time Candidate, you will pay us on demand the full Recruitment Fee (less any amount which you have already paid). You will notify Consult BT in writing if a Candidate converts from part-time to full-time employment within the first 13 months of engagement or employment with you.

 

(d) If you terminate the employment or engagement of a Candidate for whatever reason after the Candidate has accepted an offer of employment or engagement with you, the Recruitment Fee, to the maximum extent permitted by Relevant Laws, is nonrefundable. You will reimburse Consult BT for any reasonable advertising and recruitment expenses incurred by us in delivering the Services (including, but not limited to, advertising, police checks, working with children checks, travel, accommodation or testing expenses). You will not be liable to pay any expenses incurred by us in delivering the Services, unless the expenses have been approved in writing by you prior to being incurred.

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(e) You will reimburse Consult BT for any reasonable advertising and recruitment expenses incurred by us in delivering the Services (including, but not limited to, advertising, police checks, working with children checks, travel, accommodation or testing expenses). You will not be liable to pay any expenses incurred by us in delivering the Services, unless the expenses have been approved in writing by you prior to being incurred.

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5. Candidate Replacement

(a) If a Candidate recruited through Consult BT is lawfully terminated or chooses to leave your employment within 12 weeks of employment, Consult BT shall, at our cost, use our reasonable endeavours to find a replacement Candidate for 

the position (Candidate Replacement). The Candidate Replacement does not apply if any of the following occurs:

 

(i) all or any part of the Recruitment Fee (or any other amount owing to us under this Agreement) has not been paid by the due date;

(ii) you fail to provide written notice to us within 7 days that the Candidate has ceased employment with you;

(iii) the role is made redundant, restructured or redeployed or the Candidate leaves as a direct result of your actions, including but not limited to, workplace relocation, the actual position failing to match your representations, bullying, victimisation, discrimination or harassment;

(iv) you replace the Candidate yourself, or through another agency;

(v) the Candidate is subsequently re-engaged by you under any contract of service, or contract for services, within 12 months of the Candidate ceasing employment with you or any merger or acquisition of, or by, you.

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(b) The Candidate Replacement is valid for a period of 3 months from the Candidate’s termination date and relates to a specific job description. If the job description changes or the total remuneration package of the replacement Candidate is higher than the original Recruitment Fee then Consult BT may, at our absolute discretion, adjust the Recruitment Fee. Where a replacement Candidate is recruited there will be no Candidate Replacement applicable to such a placement. In addition, the Candidate Replacement does not cover advertising and recruitment costs which will be charged to you at cost.

(c) If Consult BT is unable to find a replacement for the original position within 3 months, we will provide you with a replacement credit note in the amount of the Recruitment Fee, which may be used for the subsequent placement of a Candidate in that original position. A replacement credit note is valid for 6 months from the issue date. If you fill the position yourself or through another agency you will not be entitled to the benefit of the placement credit note.

6. Your responsibilities

(a) You warrant and agree to: comply with all Relevant Laws, and ensure that you do not cause Consult BT to breach of any Relevant Laws, including your obligations to ensure the Candidate has the right to work in Australia in accordance with the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth);

(b) pay the Recruitment Fees and any other amounts owing under this Agreement by the relevant due dates; and

(c) provide Consult BT with complete and up-to-update details and particulars of the nature and duration of the required Services including a job/position description, any special qualifications, skills or attributes that may be required, work site locations, proposed commencement date and details of the salary package.

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7. Payment

(a) The Recruitment Fee for each Assignment is payable in Australian dollars within 7 days of the invoice date. All Recruitment Fees are exclusive of GST which are payable in addition.

 

(b) If you fail to pay the Recruitment Fees (or any other amounts owing under this Agreement) by the due date, without limiting any other remedies available to Consult BT under this Agreement or under any Relevant Laws, Consult BT may, at our absolute discretion, do any or all of the following:

(i) charge interest on all outstanding amounts that are due to us under this Agreement or any Assignment, charged at an interest rate of 1.25% per month (15% per annum);

(ii) suspend access to, and use of, the Services, until all outstanding amounts (including interest) that are due to us

under this Agreement or any relevant Assignment are paid in full; or

(iii) terminate this Agreement or the relevant Assignment in accordance with clause 10. You will pay Consult BT all costs and expenses incurred in recovering any outstanding amounts (including interest) that are due to us under this Agreement or the relevant Assignment, including legal costs or other expenses incurred by us in relation to enforcement steps or mercantile or collections agents.

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8. Warranty disclaimer and liability

(a) While Consult BT shall use reasonable efforts to provide Services in accordance with the relevant Assignment, we assume no responsibility for ensuring that the Candidate is suitable for employment. You are solely responsible for satisfying yourself as to the Candidate’s qualifications, right to work in Australia, competency, integrity and suitability for the position. The final selection of the Candidate for employment or engagement by you is made solely by you.

 

(b) To the maximum extent permitted by law, Consult BT exclude all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the access to, and use of, the Services and the supply of any Candidates to you under this Agreement.

 

(c) Nothing contained in this Agreement or any Assignment excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.

 

(d) To the maximum extent permitted by Relevant Laws, you must defend, indemnify and hold Consult BT, our Affiliates and our Representatives (collectively, the Indemnified) harmless from and against any and all Claims and Losses (including legal costs) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of or arising out of any:

(i) breach or non-performance by you or your Affiliates or your Representatives of this Agreement;

(ii) breach of by you or your Affiliates or your Representatives of any Relevant Laws.

 

(e) To the maximum extent permitted by Relevant Laws, Consult BT will not be liable to you or any third party for any:

(i) Consequential Loss incurred by, or awarded against, you; or

(ii) loss to any property or any personal injury or death to you or any third person, arising out of, relating to or connected to your access to, and use of, the Services and the supply of any Candidates to you, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

 

(f) Under no circumstances will Consult BT’s aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the fees paid by you to us under this Agreement or any Assignment in the preceding 6 months of the Claim.

9. Non-solicitation

You will pay Consult BT a Recruitment Fee, by way of liquidated damages, if you engage a Candidate (directly or indirectly) under any contract of service, or contract for services, within 12 months of that Candidate being introduced to you (or, if this is held invalid, for a period of 6 months of that Candidate being introduced to you). No Replacement Guarantee applies and no guarantee of suitability or duration of employment is made.

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10. Termination

(a) Either party may terminate this Agreement by giving written notice with immediate effect if the other party:

(i) commits a breach of any of its material obligations under this Agreement, and if the breach is capable of remedy, does not remedy that breach within 10 days after receipt of notice of the breach or any further time allowed by the party; or

(ii) suffers an Insolvency Event.

 

(b) Either party may terminate this Agreement for convenience at any time by giving the other 14 days’ written notice of termination.

 

(c) Should you exercise your right to terminate this Agreement or any Assignment for any reason, you must immediately pay Consult BT any unpaid Recruitment Fees or any other amounts owing to us under this Agreement (including interest) which relate to the provision of Services up to the date of termination.

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11. Confidentiality and privacy

(a) Save as required by Relevant Laws, all information supplied by Consult BT or otherwise brought to your attention, in relation to the Services, the provision of Candidates, Candidate Details, the fees payable under this Agreement or any other terms of this Agreement or any Assignment, is confidential and must not be disclosed by you to a third party (except your professional advisors) without our prior written consent. This includes, without limitation, information provided to you in any form (including written and electronic) and by any means (including during any conversations with you). Upon the expiry or termination of this Agreement, such confidential information must either be destroyed or returned to Consult BT, as directed by us.

 

(b) You will comply with all applicable Privacy Laws in relation to the collection, access to, storage of and use of, Candidate Details disclosed to, or made available to, you, or otherwise dealt with by you under or in connection with this Agreement or any relevant Assignment.

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12. Dispute resolution

The parties must, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute between the parties under or relating to this Agreement or an Assignment initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its sole discretion, initiate court proceedings. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement and all Assignments.

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13. General

(a) This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.

 

(b) The parties expressly intend that no employment, partnership, or joint venture relationship is created by this Agreement.

 

(c) A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

 

(d) If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

 

(e) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

 

(f) Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), vary this Agreement or otherwise assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, except Consult BT may assign, sell or transfer its rights or obligations under this Agreement to an Affiliate or bona fide third party purchaser of our business.

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(g) Termination or expiration in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including but not limited to, clauses 4, 7, 8, 9, 10(c), 11, 12 and 13 of the Agreement. (h) This Agreement is governed by the laws in force in New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

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14. Definitions The definitions in this clause apply in this Agreement and each Assignment (unless otherwise expressly stipulated in any Assignment):

 

(a) Affiliate means in relation to any party, a person which, directly or indirectly, (i) is Controlled by that party; or (ii) Controls that party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes.

 

(b) Agreement Details means the section of this Agreement headed ‘Agreement Details’.

 

(c) Assignment has the meaning in clause 1(a).

 

(d) Candidates means any person who has been introduced or presented to you verbally or in writing for a possible permanent placement (full-time or part-time) with you under a contract of service or contract for services.

 

(e) Candidate Details means the employment resume, details and history of a Candidate, including Personal Information.

 

(f) Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

 

(g) Commencement Date means the earlier of the date:

(i) we disclose Candidate Details to you; or

(ii) you interview or engage a Candidate introduced to you by us.

 

(h) Customer, you or your means the party identified in the Agreement Details as the Customer, its Representatives and Affiliates.

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(i) Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Commencement Date as a likely result of breach of the Agreement or any relevant Assignment:

(i) indirect, incidental, special, remote or unforeseeable loss or damage;

(ii) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, downtime costs, loss of use, or the cost of obtaining new financing or maintaining existing financing, loss of or corruption to data;

(iii) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(iv) loss or damage of the nature set out above in clauses (i) to (iii) (inclusive) that is incurred or suffered by or to a third party.

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(j) Full-Time Candidate means a Candidate who works, on average, 38 hours per week.

 

(k) GST means goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

(l) Insolvency Event means a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or any event that has a substantially similar effect to the above events.

 

(m) Losses means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.

 

(n) Part-Time Candidate means a Candidate who works, on average, 20 hours or less per week.

 

(o) Privacy Laws means any applicable laws and codes of practice dealing with privacy, including the Privacy Act 1988 (Cth) (as amended) and the Australian Privacy Principles, and any other legislation, codes and policies relating to the handling of Personal Information applicable to the jurisdiction in which you carry on business.

 

(p) Recruitment Fee has the meaning in clause 4(a).

 

(q) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and bylaws and other subordinate legislation, rulings, or legal requirements and Privacy Laws.

 

(r) Representative means, in respect of a party, any person acting for or on behalf of the party and includes any director, officer, or employee, of the party.

 

(s) Services has the meaning in clause 3.

 

(t) Total Remuneration Package means the Candidate’s gross annual salary plus superannuation, guaranteed bonuses, motor vehicle allowance (up to $16,000), meal allowances and other infringe benefits.

 

(u) Consult BT, we, our or us means Consult BT Pty Ltd (ACN 641 074 697), and where the context permits, includes our Representatives and Affiliates.