DROVER AG RECRUITMENT AGREEMENT
TERMS OF BUSINESS
This agreement sets out the terms under which Drover AG Drover AG ABN 98 304 706 745 (Drover AG, our, we or us) provides services to you or the company which you represent (the Client, you, yours).
You will be taken to have accepted these terms and conditions if you sign these terms and conditions or otherwise indicate your assent, or if you order, accept or pay for any services provided by Drover AG after receiving or becoming aware of these terms.
MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
- to that word or phrase in a Statement of Work;
- by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
- in the definitions in clause 16 of this agreement.
1. STATEMENT OF WORK
These terms will apply to all the Client’s dealings with Drover AG, including being incorporated in all agreements, quotations or orders under which Drover AG is to provide services to the Client (each a Statement of Work) together with any additional terms included in such Statement of Work (provided such additional terms are recorded in writing).
In the event of any inconsistency between these terms and conditions and any Statement of Work the clauses of these terms and conditions will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms set out and described as such in a Statement of Work) will prevail over the other terms of this agreement to the extent of any inconsistency.
a) In consideration for the payment of the Fees, Drover AG will provide the Client with services set out in a Statement of Work (Services).
b) Unless otherwise agreed, Drover AG may, in its discretion:
(i) not commence work on any Services until the Client has paid any fees or deposit payable in respect of such Services; and
(ii) withhold delivery of Services until the Client has paid the invoice in respect of such Services.
2.2 EXCLUSIVE SERVICES
If the Statement of Work specifies that the Services are ‘Exclusive’, you agree, in relation to the Position and for the period specified Statement of Work:
(i) not to accept introductions of candidates from other external suppliers;
(ii) not to advertise; and
(iii) not to search for candidates directly.
2.3 TEMPORARY TO PERMANENT SERVICES
You acknowledge and agree that if you employ a Candidate on a temporary basis and you change the Candidate’s role from temporary to permanent within the term of their initial employment contract, you will need to pay us the Transfer Fee set out in the Statement of Work.
3. IF DROVER AG DOES NOT FIND A SUITABLE CANDIDATE
a) You acknowledge that finding a suitable Candidate for a role you are seeking to fill depends on a large number of factors, some of which are beyond Drover AG’s control, such as availability of seasonal talent or the meeting of any demands that fall outside the Candidate’s skillset (for example, their temperament).
b) You agree that if we are unable to fill a role required to be filled by you in six (6) weeks from the Start Date or you fill a role independently of Drover AG (for example, through a different recruiter), any money you have paid to Drover AG to date will not be refundable.
The Client must pay to Drover AG fees in the amounts, using the Payment Method and at the Payment Due Dates set out in the Statement of Work, or as otherwise agreed.
Unless otherwise agreed if Drover AG issues an invoice to the Client, payment must be made by the time(s) specified on such invoice.
4.3 LATE PAYMENT
If the Client does not pay Drover AG the amounts due on or before the due date, without limiting any of Drover AG’s other rights under this agreement, the Client must pay Drover AG interest at the rate of 1% per month on each amount outstanding, from the due date for payment to the date on which the payment is received by Drover AG.
Unless otherwise indicated, amounts stated in a Statement of Work do not include GST. In relation to any GST payable for a taxable supply by Drover AG, the Client must pay the GST subject to Drover AG providing a tax invoice.
4.5 CARD SURCHARGES
Drover AG reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
5. THE PARTIES’ RESPONSIBILITIES
5.1 OUR RESPONSIBILITIES
When we present a Candidate to you, we will:
a) provide all Services in a professional, diligent and timely manner;
b) take reasonable steps to ensure that we have the Candidate’s permission to present the Candidate to you;
c) take reasonable steps to present only Candidates who, in our opinion, are potentially suitable for placement with a view to short-listing or assessing them for your consideration;
d) when shortlisting or evaluating our Candidates, take reasonable steps to validate relevant information which we collect from our candidates ensuring so far as practicable that the information we provide is substantially accurate, relevant, complete and up to date. However, we make no warranties in relation to the validity of such information; and
e) arrange interviews with selected candidates.
5.2 YOUR RESPONSIBILITIES
a) to provide us with full and accurate information about the Position;
b) to let us know within two (2) days of us presenting you with suitable Candidate(s), whether you are interested in interviewing or otherwise progressing such Candidate(s),
c) that you are responsible for satisfying yourself:
(i) that the person you offer a role is the same person as the Candidate we have recommended to you;
(ii) that our Candidate has the qualifications, training, experience, and any meets any other requirements necessary to undertake the placement; and
(iii) that our candidate meets any suitability, security, trade, professional, or occupational health and safety requirements imposed by law in order to work in the Position; and
d) to notify us immediately of:
(i) the outcome of any interview between you and the Candidate;
(ii) any offer (or acceptance of any offer) in relation to the placement of a Candidate with you, or a third-party. Your notification must include details of the remuneration or benefits offered; and
(iii) your employment or engagement of our Candidate;
e) that once you make an offer to a Candidate, communicating with that Candidate becomes entirely your responsibility and Drover AG will not be required to serve as a liaison between you and the relevant Candidate;
f) that if you make an offer of employment to any Candidate within twelve (12) months of that Candidate being presented to you by us, you will be subject to this agreement and pay the applicable Fees;
g) to provide us with a copy of the employment contract or an accurate summary of its contents within seven days of its being agreed by both you and the Candidate;
h) that all information supplied by Drover AG, whether written or verbal, is confidential and should not be disclosed to any other party without the express written consent of Drover AG; and
i) that without limiting other remedies Drover AG might have under this agreement, if as a result of your breach of clause 8, the Candidate is offered employment by a third party within twelve (12) months of the breach, you will be liable to pay the applicable Fees in relation to that Candidate as though the Services in relation to that Candidate were provided to you and not the third party that employed the Candidate.
j) you will not do anything or attempt to do anything to bring Drover AG into disrepute or defame Drover AG, including by making untrue, false or misleading statements about Drover AG on social media, in google reviews or directly to third parties;
a) As part of the Statement of Work or in the course of Drover AG performing the Services, the parties may agree a schedule for providing certain Services and Deliverables, including estimated dates of completion, deadlines or schedules (Schedules).
b) Drover AG will use its best efforts to meet these Schedules, however these are subject to change if unforeseen complexities arise. In these cases, Drover AG will use its best efforts to minimise the impact of such changes and provide the Services within a reasonable time.
c) Drover AG reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide timely feedback or other information reasonably requested by Drover AG in order to perform the Services.
7. AGENT’S AUTHORITY
The Client acknowledges that, as part of the Services, it may request that Drover AG make an offer of employment with the Client to a Candidate. The Client:
a) grants Drover AG the right to make offers of employment with the Client to Candidates as requested by the Client (whether such requests are made via email, otherwise in writing or orally);
b) hereby appoints Drover AG as its agent and authorised representative for this purpose; and
c) without limiting any clause of this agreement, releases Drover AG from any claims, obligations or liabilities in relation to any act or omission of Drover AG in relation to making offers of employment to Candidates on the Client’s behalf.
a) Except as contemplated by this agreement or a Statement of Work, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
b) For the purposes of this agreement, “Confidential Information” means all information obtained by the Client from Drover AG in the course of or in connection with a Statement of Work, that is by its nature confidential, including (without limitation):
(i) all trade secrets, business secrets, know-how and other confidential and commercially sensitive information not in the public domain relating to the affairs or business of Drover AG; and
(ii) without limiting clause 8(b)(i):
A. Candidate names and addresses, Candidate lists, Candidate resumes and the information contained therein, information relating to the Candidates’ current employers, business cards, calendars or schedules; and
B. information about Drover AG’s online or offline marketing strategy, approach, processes and/or promotional activities.
c) This clause does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by Drover AG to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this agreement.
a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of the Drover AG to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total fees paid to the Drover AG by the Client in the 6 months preceding the first event giving rise to the relevant liability.
b) (Indemnity) The Client agrees at all times to indemnify and hold harmless the Drover AG and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
c) (Consequential loss) The Drover AG will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Drover AG, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
b) Both parties agree to comply, and ensure that their Personnel complies, at all times with the Privacy Laws.
c) Without limiting or otherwise affecting clause 11(a), either party must:
(i) ensure Personal Information held or handled by it in connection with this agreement is protected against misuse, interference and loss and against unauthorised access, use, modification or disclosure;
(ii) immediately notify the other party if:
A. it becomes aware or suspects there has been an unauthorised use, copying, or disclosure of, or other security breach in relation to, Personal Information held or handled by it in connection with this agreement; or
B. it becomes aware that a disclosure of Personal Information held by it in connection with this agreement is, or may be, required by Law;
(iii) not do anything with Personal Information that will cause the other party to breach any Privacy Law; and
(iv) comply with any reasonable request, direction or inquiry made by the other party in relation to Personal Information or the Privacy Laws.
12.1 TERMINATION FOR CONVENIENCE
Either party may terminate this agreement or any Statement of Work for convenience at any time by providing 1 months’ written notice to the other party.
12.2TERMINATION FOR CAUSE
Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party is in breach of this agreement and either:
(i) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(ii) that breach is not capable of remedy.
12.3 EFFECT OF TERMINATION
Upon termination of this agreement:
a) any Fees already paid by the Client as at the date of termination will be refundable at Drover AG’s absolute discretion, if the Client terminates the Agreement in accordance with clause 12.1;
b) each party must return all property of other parties to those respective parties;
c) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
d) no rights, liabilities or remedies of any party will be invalidated by the termination.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
13. DISPUTE RESOLUTION
a) The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
b) The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (Guidelines).
c) The terms of the Guidelines are hereby deemed incorporated into this agreement.
a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
15.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Queensland, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
This agreement may only be amended in accordance with a written agreement between the parties.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
15.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
15.9 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
a) (singular and plural) words in the singular includes the plural (and vice versa);
b) (gender) words indicating a gender includes the corresponding words of any other gender;
c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
d) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
e) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
In this agreement, capitalised terms have the meaning given to them in a Statement of Work, and the following phrases have the meaning set out in Table 1.
Table 1: Definitions
means anyone, regardless of whether they are presented to you independently:
(a) who is seeking a position through us; or
(b) whom we have identified as a person:
(i) who might consider seeking a position through us; and
(ii) about whom we are able to provide relevant information regarding that person’s suitability for a position.
||has the meaning given in the Privacy Laws.
||means the Privacy Act 1988 (Cth) as amended from time to time and includes the Australian Privacy Principles in Schedule 1 of that Act.
||means a position that the Client requires to be filled and, where the context so requires, includes a position that a third party requires to be filled.