Terms & Conditions of Business
Recruitment Agreement
BETWEEN
Evans Davis Recruitment (“Evans Davis”) AND The Client (“Client”)
1. AGREEMENT
1.1 This agreement sets out the terms under which “Evans Davis” ABN 42 649 370 070 (Evans Davis, we, us) provides services to you or the company which you represent (the Client, you).
1.2 You will be taken to have to have accepted these terms if you email confirmation or otherwise indicate your assent, or if you order, accept or pay for any services provided by Evans Davis including if you request a CV or contact a Candidate introduced or referred to you by Evans Davis after receiving or becoming aware of these terms.
2. RECRUITMENT SERVICES
In consideration for Placement Fees, Evans Davis will: (a) introduce or refer Candidates for positions agreed between you and Evans Davis; (b) take reasonable steps to present only Candidates who, in Evans Davis’ opinion, are potentially suitable for placement for the role; and (c) take reasonable steps to validate relevant information which we collect from our Candidates ensuring so far as practicable that the information Evans Davis provides is relevant, complete and up to date. However, we make no warranties in relation to the accuracy of such information.
3. YOUR OBLIGATIONS
You agree:
3.1 where we are providing services in respect of a particular position, to provide us with full and accurate information about that position;
3.2 to notify us immediately of:(a) the outcome of any interview between you and any Candidate referred to you by us; (b) any offer (or acceptance of any offer) in relation to the placement of a Candidate with you, or third-party (and the notification must include details of the Remuneration offered); and (c) the commencement of your employment or engagement of our Candidate;
3.3 that if we introduce or refer a Candidate to you who is currently engaged in active dialogue regarding employment or contract work with you: (a) you will notify us in writing and provide evidence that the Candidate was already in consideration for the position (to our reasonable satisfaction) within seven days; and (b) if you fail to notify us or provide us with sufficient evidence and you employ or engage that Candidate, you will be liable to pay Placement Fees to us in relation to that Candidate as though the Candidate was not already known to you and was referred to you by us under this agreement;
3.4 that if you engage in active dialogue regarding employment or contract work with a Candidate within twelve (12) months of the Referral (defined in clause 4.1(d)) and subsequently employ or engage that Candidate, you will be subject to this agreement and pay the applicable Placement Fees;
3.5 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;
3.6 that all information supplied by Evans Davis, whether written or verbal, is confidential and should not be disclosed to any other party without our express written consent;
3.7 that without limiting other remedies we might have under this agreement, if as a result of your breach of this clause or clause 9 (Confidentiality), the Candidate is offered employment by a third party within twelve (12) months of the breach, you will be liable to pay the applicable Placement 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;
3.8 to pay us the applicable Placement Fees for the placement of the Candidate, if you breach any agreement for the employment or engagement of our Candidate before the placement is complete and this agreement terminates for that reason;
3.9 that you are responsible for satisfying yourself; (a) that any Candidate has the qualifications, training, experience, and any meets any other requirements necessary to undertake the placement; and (b) that the Candidate meets any suitability, security, trade, professional, or occupational health and safety requirements imposed by law in order to work in the position.
4. FEES
4.1 PLACEMENT FEES
Fee Schedule (ex GST)
Remuneration Fee
Up to $100,000 20%
$100,001 to $125,000 22%
$125,001 to $250,000 25%
$250,001 to $350,000 30%
Above $350,000 35%
(a) The Client will pay fees to Evans Davis in accordance with the above Fee Schedule (Placement Fees) and this clause 4 where the Client commences active dialogue with the Candidate regarding employment or engagement by the Client within 12 months from the Referral and then subsequently employs or engages the Candidate.
(b) Notwithstanding the above Fee Schedule:
(i) For a Candidate who is employed or engaged by the Client on a full-time basis, a minimum Placement Fee of $10,000 (excl. GST) will apply.
(ii) For a Candidate who is employed or engaged by the Client on a part-time basis, a minimum Placement Fee of $8,000 (excl. GST) will apply.
(c) A Candidate is any person that is not currently engaged in active dialogue regarding employment or contract work with the Client, regardless of whether the Client has prior awareness of the person by reputation, secondary contacts, social media, prior introduction or internal records kept by the Client.
(d) The Referral means the later of:
(i) the date that Evans Davis introduces the Client to a Candidate; and
(ii) the date of the last dialogue between the Client and Evans Davis regarding a potential position of the Candidate with the Client (including where the Candidate is already known to the Client and is re-introduced or referred to the Client by Evans Davis).
(e) The Remuneration referred to in either Fee Schedule, is annualised sum of all remuneration payable to a Candidate by the Client (and if part time, calculated on a pro-rata basis), including allowances, superannuation contributions, superannuation guarantee payments, salary sacrificed components and the value of any motor vehicle, telephone, computer, internet, travel, accommodation, reduced interest loan provision, conference or education allowance payable to the Candidate.
(f) For the purposes of calculating the Remuneration, if no valuation is specifically provided in the employment or engagement contract or otherwise agreed by the parties, the following minimum valuations will apply:
(i)Use or provision of a motor vehicle – $15,000.00 per year.
4.2 FEES PAYABLE ON ACCEPTANCE OF OFFER
Placement Fees become payable 7 days after the Candidate accepts an offer of employment or engagement. Placement Fees are non-refundable and must be fully paid regardless of the duration of the employment or engagement (including if the employment or engagement is subject to a period of probation).
4.3 THIRD PARTY REFERRAL
If the Client passes on information concerning a Candidate to any third party which results in an employment or engagement in any capacity of the Candidate by a third party, the Client must pay (or procure that the relevant third party pay) the Placement Fees to Evans Davis in accordance with this agreement as if the Candidate had been employed or engaged directly by the Client.
5. BACKGROUND CHECKS
5.1 Notwithstanding anything else in this agreement, Evans Davis is not required to undertake any police clearance check or other checks in relation to the Candidate unless specifically agreed between the Client and Evans Davis.
5.2 If the Client requires any police clearance check or other checks, Evans Davis may require the payment of additional fees (Check Fees), provided Evans Davis obtains the Client’s approval for the Check Fees before undertaking any checks.
6. NON-CIRCUMVENTION
6.1 You agree that you must not make any offer of employment to any Candidate referred to you by us outside the scope of this agreement or otherwise do anything to attempt to circumvent the payment of Placement Fees under this agreement. This includes, without limitation, using our services or any information you acquired from us, including Candidate details and current or previous employer details, to contact the Candidate (or their current or previous employer) directly and offer them employment directly to attempt to avoid paying Placement Fees under this agreement.
6.2 If the Client breaches this clause, the Client will be required to pay Evans Davis the Placement Fees for the relevant Candidate and indemnify Evans Davis for any other loss or damage suffered (including profits lost by Evans Davis). The Placement Fee will be calculated at 35% of Remuneration due to the attempted circumvention of this agreement.
7. REPLACEMENT GUARANTEE
Evans Davis provides a Replacement Guarantee in accordance with this clause 7 for all standard, permanent, full-time employee placements.
7.1 Under the Replacement Guarantee, if within 12 weeks of the date a placed Candidate commences employment or engagement with the Client (Guarantee Period), the Candidate:
- performs unsatisfactorily in their position and the Candidate’s employment is terminated for that reason; or
- terminates their own employment, then Evans Davis will use its best efforts to find and present at a replacement Candidate for the Client provided that all the following conditions are met:
iii. the Client paid the Placement Fee in full on or before its due date;
- Evans Davis is notified in writing within 3 days of the termination;
- the termination was lawful and was not due to the restructuring of the role, retrenchment or redeployment, or due to any false or misleading representation made to the successful Candidate in connection with the placement;
- Evans Davis is given the exclusive opportunity to replace the Candidate; and
vii. the replacement role is the same as the original position that Evans Davis placed for.
7.2 The Replacement Guarantee is only valid during the Guarantee Period. After this period, Evans Davis is not obliged to offer the Replacement Guarantee.
7.3 Evans Davis offers its Replacement Guarantee on the initial Candidates placed only and does not offer its Replacement Guarantee for the replacement Candidate.
7.4 Evans Davis’ Replacement Guarantee is for use with a single Candidate only and cannot be claimed as credit or used for multiple Candidates.
7.5 If the Client offers the replacement Candidate greater Remuneration than was accepted by the original Candidate, Evans Davis will be entitled to charge the Client additional Placement Fees to account for the difference in Remuneration between the Candidates.
8. INVOICING
8.1 Evans Davis will issue an invoice to the Client if amounts become payable under these terms. The Client must make payment for the amounts and on the dates as set out in the invoice (and if no date is specified, payment must be made within 7 days of the date of the invoice).
8.2 The Client must provide Evans Davis, promptly upon request, all information Evans Davis reasonably requires to calculate amounts owing to it under this agreement, including without limitation a copy of the Candidate’s contract with the Client.
8.3 Unless otherwise indicated, amounts stated in this agreement or otherwise quoted to the Client do not include GST and the Client must pay any GST payable for services provided by Evans Davis and as set out in an invoice.
8.4 If the Client fails to pay any amount when due under these terms, Evans Davis may charge the Client interest on the overdue amount calculated at 3.5% per month, which will accrue daily and compound monthly from the due date for payment up to the date of actual payment of all amounts owed; and
8.5 The Client will pay all costs incurred by Evans Davis in any attempt to collect any monies owed by the Client to Evans Davis under this agreement including debt collection agent costs, repossession costs, and solicitor costs on a solicitor/client basis.
9. CONFIDENTIALITY
9.1 All Candidate information (e.g. resumes, personal details and otherwise) provided by Evans Davis to the Client are for the sole use of the Client. The Client may not disclose any information regarding the Candidate to any third party (except to its employees, directors and personnel on a need-to-know basis or where required by law) without Evans Davis’ consent.
9.2 Evans Davis agrees to keep confidential any information that the Client provides to Evans Davis, provided that the Client informs Evans Davis that the information is confidential information upon providing it to Evans Davis.
10. DISCLAIMER & WARRANTIES
10.1 Evans Davis’ services are introductory in nature and Evans Davis will not have any liability to the Client for any acts or omissions of the Candidate, whether occurring before or after their engagement with the Client.
10.2 To the maximum extent permitted by applicable law, all express or implied representations and warranties (including in relation to the Candidates fitness for a particular role, their qualifications or otherwise) not expressly stated are excluded.
10.3 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 services provided by the Evans Davis.
11. LIMITATION OF LIABILITY
To the maximum extent permitted by law (including the ACL), Evans Davis’ liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this agreement: (a) is excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill (except to the extent such liability cannot be limited under the ACL); and (b) is limited, insofar as it concerns other liability, to the money paid to Evans Davis by the Client under this agreement in the 3 months prior to the date the event giving rise to the relevant liability (or, where there are multiple events, the date of the first such event).
12. INDEMNITY
The Client indemnifies Evans Davis from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of any breach of this agreement by the Client or any negligent, fraudulent or criminal act or omission of the Client or its personnel.
13. TERMINATION OF AGREEMENT
13.1 Either party may terminate this agreement with 28 days’ notice in writing (including email) without cause.
13.2 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: (a)fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or (b) that breach is not capable of remedy.
13.3 Upon termination of this agreement, the Client must immediately pay any outstanding Placement Fees and any other amounts owed to Evans Davis. The Client will also be required to pay any Placement Fees payable to the Client, irrespective of whether the Placement Fees become payable before or after the date of termination.
13.4 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.
14.1 A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause 14.
14.2 A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
14.3 Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith.
14.4 If the dispute is not resolved within a period of 14 days after the date of the notice, a party may, by notice to the other party or parties to the dispute refer the dispute to mediation. If no mediator can be agreed upon within 7 days, then the parties agree to the appointment of a mediator nominated by the president of the Law Society of NSW. Each party agrees to attend mediation in good faith.
14.5 If the dispute is not resolved within 28 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
15. FORCE MAJEURE
15.1 If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of: (a) reasonable details of the Force Majeure Event; and (b) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
15.2 Subject to compliance with clause 15(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event
15.3 The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
15.4 For the purposes of this agreement, a Force Majeure Event means any: (a) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire; (b) strikes or other industrial action outside of the control of the Affected Party; (c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or (d) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
16.1 A notice or other communication to a party under this agreement must be: (a) In writing and in English; and (b) 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.
16.2 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: (a) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or (b) when replied to by the other party, whichever is earlier.
17.1 This agreement is governed by the law applying in New South Wales, each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales 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.
17.2 This agreement may only be amended in accordance with a written agreement between the parties.
17.3 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.
17.4 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.
17.5 An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
17.6 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.
17.7 This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
17.8 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.
17.9 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.
INTERPRETATION
17.10 (singular and plural) words in the singular includes the plural (and vice versa);
17.11 (gender) words indicating a gender includes the corresponding words of any other gender;
- 12 (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;
17.13 (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;
17.14 (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;
17.15 (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;
17.16 (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
17.17 (headings) headings and words in bold type are for convenience only and do not affect interpretation;
17.18 (includes) the word “includes” and similar words in any form is not a word of limitation; and
17.19 (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.