1. Background

The Client wishes to engage the Recruiter to provide the Services, and the Recruiter agrees to provide the Services, on the terms of this Agreement.

2. Term

This Agreement commences on the date of the Engagement Letter and continues until terminated in accordance with clause 9 of these Terms and Conditions (Term).

3. Obligations

a) The Recruiter agrees to:

  1. provide the Services with reasonable care and skill, and use all reasonable endeavours to procure a Candidate gains employment with the Client to fill the Position (Employment); and
  2. keep the Client up to date with the recruitment process.

b) The Client agrees to:

  1. provide the Recruiter with all information that the Recruiter requires to provide the Services, at the time and in the manner required by the Recruiter;
  2. provide the Recruiter with all material information regarding the Employment, including the annual salary of the Candidate and all other relevant terms regarding the Employment, within 24 hours of an offer of Employment being made by the Client to the Candidate (Offer);
  3. notify the Recruiter of the acceptance or rejection of the Offer by the Candidate, within 24 hours of such acceptance or rejection;
  4. in consideration for the provision of the Services by the Recruiter, pay the Fee (as indicated in the Engagement Letter or as otherwise agreed in writing) to the Recruiter in accordance with clause 4; and
  5. if this Agreement is non-exclusive (as indicated in the Engagement Letter), pay a fee to the Recruiter (Set-Up Fee), in accordance with clause 4.

    4. Payment

    a) The Client must to pay into the nominated bank account of the Recruiter:

    1. the Fee within 14 days of the acceptance of the Offer by the Candidate; and
    2. the Set-Up Fee (where applicable) within 7 days of accepting the terms in the Engagement Letter.

    b) Unless otherwise expressly indicated, all amounts and charges in the Agreement are exclusive of GST.  GST will be added to any such amounts (if applicable) and the Recruiter will issue the Client a valid tax invoice in respect of such fees and charges. 

    5. Replacement

    If the Employment terminates within 12 weeks of the commencement of the Employment:

    a) the Client agrees that the Recruiter is under no obligation to refund either the Fee or the Set-Up Fee (where applicable); and

    b) subject to the Fee being paid in full, the Recruiter agrees to use reasonable endeavours to replace the Candidate (Original Candidate) with another Candidate (Replacement Candidate) to the satisfaction of the Client (acting reasonably), for no additional fee, provided that:

    1. the Client has complied with the terms of this Agreement and the agreement for the Employment, has acted in good faith (as determined by the Recruiter), and has complied with all Australian laws and regulations;
    2. the nature of the position that was filled by the Original Candidate (e.g. job title, responsibilities, salary, etc.) has not changed; and
    3. the Client notifies the Recruiter of the termination of the Employment within 7 days of such termination.

    However, the parties acknowledge and agree that the Recruiter is under no obligation to provide the Services in accordance with clause 5(b) where:

    • the Employment was terminated due to the Client’s restructuring, the Candidate’s redundancy, or other circumstances which are unrelated to the Candidate’s performance in the Position; or
    • the Candidate is a Replacement Candidate,

    6. Reintroduction

    The parties acknowledge that if a Candidate who is introduced by the Recruiter to the Client is Employed by the Client within 12 months of the initial introduction by the Recruiter (irrespective of whether or not the Employment is the direct result of the Recruiter’s initial introduction), the Client shall pay liable to pay the Recruiter the Fee in accordance with this Agreement.

    7. Privacy

    The parties agree:

    a) to deal with all Personal Information (as defined in the Privacy Act 1988 (Cth) (Privacy Act)), and any other information in any form whatsoever provided to the Recruiter by a Candidate during the Term, including, but not limited to, information relating to a Candidate’s qualifications, experience and referees (Materials) in accordance with all relevant Australian laws and regulations, including, but not limited to, the Privacy Act;

    b) to only use the Materials for the purposes of complying with their obligations under this Agreement;

    c) not to disclose any Materials to any third party, other than to its employees, agents, or permitted assigns, without the prior consent of the owner of those Materials; and

    d) that the Client is responsible for verifying all Materials provided to them by the Recruiter.

    8. Confidentiality

    a) The Recruiter and the Client must maintain the confidentiality of, and not disclose, any trade secret, confidential information, or commercially sensitive information about each other obtained in connection with this Agreement, other than, as required by law, when the information falls into the public domain, or if required by the Recruiter’s or the Client’s professional advisors.

    b) For the purposes of this Agreement, all Materials are confidential information and therefore must be treated as such by the parties.

    9. Termination

    a) Either party may terminate this Agreement at any time, for any reason, by notice to the other party.

    b) Upon the termination of this Agreement, the Client must return to the Recruiter all of their Materials and other property, that is in the Client’s possession, within 48 hours.

    10. Workplace Health and Safety

    The Recruiter and the Client (and their respective employees, agents, and subcontractors) undertake and agree to comply with all applicable workplace health and safety laws and regulations.

    11.  Exclusivity

    If indicated in the Engagement Letter, the Client acknowledges and agrees that, for the duration of the Term, the Recruiter shall be the Client’s exclusive provider of Candidates for the Position.

    12. Limitation of Liability and Indemnity

    a) The Recruiter is not responsible or liable for the actions or omissions of a Candidate, or the accuracy of the Materials, or any loss, expense or damage arising from the same. 

    b) If a Candidate is employed by the Client, the Client is solely responsible for the Candidate as an employee and acknowledges that the Recruiter has no enduring obligations or responsibility for the Candidate unless otherwise expressly set out in this Agreement.

    c) The Client indemnifies and holds harmless the Recruiter from and against any claim, liability, loss, damage, or cost suffered or incurred by the Recruiter and/or its personnel caused (directly or indirectly) by the Client’s actions or omissions, except to the extent that such claim, liability, damage, loss, or cost is solely and directly caused by the Recruiter’s negligence or wilful misconduct.

    13. Warranties

    To the maximum extent permitted by law, the Recruiter makes no warranties or guarantees whether express or implied in connection with the Services, the accuracy of the Materials, the Candidate or any other matter relating to the Agreement.

    14. Survival

    The following clauses survive the termination of this Agreement: clause 3 (Obligations), Clause 4 (Payment), clause 5 (Replacement), clause 6 (Reintroduction), clause 7 (Privacy), clause 8 (Confidentiality), clause 9 (Termination), clause 12 (Limitation of Liability), clause 13 (Warranties), clause 14 (Survival) and clause 15 (General).

    15. General

    a) This Agreement may only be amended or varied by the written consent of the parties.

    b) Nothing in this Agreement shall be deemed to create a relationship of agency, employment or partnership between the Recruiter and the Client for any purpose whatsoever.

    c) Neither party may assign or otherwise deal with its rights or obligations under this Agreement without the written consent of the other party.

    d) This Agreement may be executed in any number of counterparts and all those counterparts taken together constitute one and the same instrument.

    e) This Agreement is governed by the laws applicable in South Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia.

    f) The Special Conditions set out in the Engagement Letter form part of this Agreement.