CLIENT TERMS & CONDITIONS – TEMP / CONTRACT
FOR USE WHEN SUPPLING TEMPORARY OR CONTRACT WORKERS TO THE CLIENT
1.1. In these Terms and Conditions, the following words are defined as follows:
1.1.1. "Agency" means Westlakes International Recruitment Limited (hereinafter referred to as ‘WIR’ , ‘Westlakes’ or the ‘Agency’ and where ‘we’, ‘us’, ‘our’ and ‘ours’ is used this also refers to Westlakes). Westlakes’ head office is incorporated in New Zealand. Company number: 5827252. NZBN: 9429042015178.
1.1.2. “Assignment” means the temporary role being or to be performed by a Candidate for the Client;
1.1.3. “Business” means work performed by WIR in relation of the sourcing of Candidates including, but not limited to, WIR receiving instructions from the Client for an Assignment, long/short listing of Candidates, Introducing a Candidate, the arrangement of an interview by WIR or any other subsequent act in the sourcing or supply of a Candidate, or other ancillary acts associated with this Agreement;
1.1.4. “CPI” means Consumer Price Index, published by Statistics New Zealand (SNZ), or any replacement category published by the SNZ from time to time;
1.1.5. "Candidate" means the person introduced by the Agency to the Client for an Engagement including any officer or employee of the Candidate, if the Candidate is a company, and members of the Agency's own staff. Candidate also includes “temporary worker”, “temp” and/or “contractor” or any other variation of names / titles;
1.1.6. “Client” means you or any of your holding or subsidiary companies as defined in section 5 of the Companies Act 1993;
1.1.7. "Engagement" means the engagement, employment or use of the Candidate by the Client or any third party on a permanent, contract, or temporary basis, whether under a contract of employment or a consultant/associate contract or agreement or alternative offer and acceptance method; under an agency, licence, franchise or partnership agreement; or any other Engagement; directly or through a Company of which the Candidate is an officer or employee.
1.1.8. “GST” means GST within the meaning of the Goods and Services Tax Act 1985;
1.1.9. "Introduction" means (i) the Client's meeting and/or interview of a Candidate in person, by telephone, by internet/email, via social networking internet sites, video conferencing, or any other means, following the Client's instruction to the Agency to search for a Candidate; or (ii) the passing to the Client of a curriculum vitae or information which identifies the Candidate; and which leads to an Engagement of that Candidate.
1.1.10. “Parties” mean WIR and the Client and their respective successors and permitted assignees;
1.1.11. “Terms” means the terms and conditions set out in this document.
2. THE CONTRACT
2.1. Unless the context requires otherwise, references to the singular include the plural.
2.2. The headings contained in these Terms are for convenience only and do not affect their interpretation.
2.3. These Terms constitute the contract between the Agency and the Client and are deemed to be accepted by the Client by virtue of an Introduction to, or the Engagement of a Candidate or the passing of any information about the Candidate to any third party following an Introduction.
2.4. These Terms contain the entire agreement between the parties and unless otherwise agreed in writing by a Director of the Agency, these Terms prevail over any other Terms, documents, or purchase conditions put forward by either party.
2.5. No variation or alteration to these Terms shall be valid unless the details of such variation are agreed between the Agency and the Client and are set out in writing and a copy of the varied terms are given to the Client stating the date on or after which such varied Terms shall apply.
3. SCOPE OF THIS AGREEMENT
3.1. This agreement shall apply to:
3.1.1. any Business proposed or undertaken by WIR for the Client; and/or
3.1.2. the Engagement or other use by the Client of a Candidate Introduced by WIR.
3.2. In the absence of written confirmation, the use by the Client of any curriculum vitae provided by WIR (or the details therein) or the employment or engagement of any Candidate Introduced by WIR will constitute acceptance by the Client of these Terms and Conditions.
4. NATURE OF THE ASSIGNMENT
4.1. WIR shall use reasonable skill and care in the sourcing, Introduction and supply of Candidates to the Client.
4.2. WIR shall make every reasonable effort to ensure that a Candidate suits the Client’s notified requirements. Insofar as a Candidate or third parties provide details relating to the Candidate, WIR shall use reasonable endeavours to ensure these details are correct but provides no warranty to such effect. WIR will not be liable for any loss or damage as a result of such incorrect information and the Client acknowledges that it is responsible for undertaking its own investigations to verify any information is correct.
4.3. WIR gives no representation or warranty that any Candidate is or will be willing and/or available to accept any Assignment.
4.4. For an Assignment, the Client shall approve timesheets on a weekly basis. Signature or e-mail approval of a timesheet by a Client shall be deemed evidence of satisfaction with a Candidate and an agreement to pay for the hours or days recorded on a timesheet. Online timesheets (if applicable) will require online approval by the Client on an equivalent basis.
4.5. The Client is responsible for the direction, control and supervision of the Candidate for the duration of the Assignment.
4.6. WIR will not be liable for losses, liabilities, costs and expenses incurred by the Client or their respective employees or clients arising from the Candidate’s acts, errors or omissions for the duration of an Assignment.
4.7. An Assignment commences when the Candidate begins work for the Client and continues until the Candidate has completed work on the last day of the Assignment.
4.8. The Client acknowledges that the final decision to engage any Candidate to undertake an Assignment rests with it.
5. THE FEES
5.1. Prior to the start of the Assignment the Parties will agree the hours to be worked by the Candidate during the Assignment and the hourly or daily rate that the Client will pay to WIR.
5.2. Where a Candidate works in excess of the hours agreed for the Assignment, the Client will pay to WIR an overtime rate, as agreed by the Parties.
5.3. WIR will invoice the Client on a weekly basis for the hours or days worked by the Candidate, unless agreed otherwise in writing between the Parties.
5.4. WIR will promptly pay all monies due to the Candidate, including (where applicable) holiday pay, ACC contributions, sick pay and special leave.
5.5. Statutory holidays will be charged to the Client (where applicable).
5.6. WIR reserves the right to increase the hourly rate in accordance with any increase in any wage rate or statutory charge governing the remuneration to be paid by WIR to the Candidate.
5.7. In addition to clause 5.5 WIR may adjust the rate, annually on 1st January in line with the increase in the CPI. The adjustment will be based on the annual percentage change specified in the latest published CPI (e.g. September Quarter of the prior year to September Quarter of the current year).
5.8. A fee shall be due and payable under this Agreement regardless of whether the Candidate was previously known to the Client on the date of Introduction.
6. PAYMENT AND ADDITIONAL COSTS
6.1. Additional costs will only be incurred with the Client’s approval and charged at rates agreed. These will be payable by the Client, even if the Candidate is not placed in the Assignment.
6.2. The Client shall pay all invoices within 7 days of the date of invoice.
6.3. The Client is deemed to have accepted the invoice if no dispute is raised within 7 days of the date of invoice. Overdue payments are subject to interest on the amount unpaid from the due date to the date of payment at a daily rate 2.5% per annum above the base rate of ANZ Bank.
6.4. A dispute will not affect payment of non-disputed fees on the same invoice or the payment of any other invoices due by the Client and the Client shall have no right of set off.
6.5. All fees are GST exclusive. GST shall be charged on fees due at the prevailing rate and on such aspects of any other charges as is required by law.
6.6. Any costs incurred by WIR in recovering amounts overdue shall be payable by the Client.
7. EMPLOYMENT OR ENGAGEMENT BY THE CLIENT
7.1.1. No Assignment occurs initially and an Introduced Candidate is employed or engaged by the Client in any capacity within 12 calendar months from the Introduction; or
7.1.2. the Candidate is introduced (directly or indirectly) by the Client to a third party who employs or engages the Candidate to work in any capacity within 12 calendar months of the initial introduction (irrespective of whether an Assignment occurred) or within 12 calendar months from the end of the Assignment; or
7.1.3. during the Assignment or within 12 calendar months of the end of the Assignment the Client offers work directly to the Candidate;
7.2. then: the Client will inform WIR, provide WIR with full details of the remuneration paid to the Candidate and pay WIR a fee of 20% of the base annual salary and any guaranteed bonus offered to the Candidate.
8. TERMINATION OF ASSIGNMENTS
8.1. At any time, either Party may terminate the Assignment by written notice to the other Party. If applicable, any specific period of notice will be agreed in writing (or via email) prior to the commencement of the Assignment.
8.2. For the avoidance of doubt WIR (and not the Client) will advise the Candidate that the Assignment has been terminated and the Client will be responsible for any claims by the Candidate where it fails to follow this process.
8.3. If a Candidate’s Assignment is terminated for whatever reason, the Client shall pay WIR for the time actually worked by the Candidate (including notice) and shall submit timesheets to comply with this clause up to the termination.
8.4. The Client may elect to make payment in lieu of any notice to be given to the Candidate.
9. OTHER OBLIGATIONS REGARDING THE CANDIDATES
9.1. WIR will use reasonable endeavours to ensure that the Candidate assigns to the Client the intellectual property rights in any work produced by the Candidate for the Client as part of an Assignment.
9.2. The Parties will each comply with the obligations placed upon them by the relevant Work Health and Safety laws and regulations in order to ensure as far as reasonably practicable the health and safety of the Candidates. The Client will consult, cooperate and coordinate with WIR on health and safety matters for Candidates. This includes but is not limited to allowing WIR or its agents reasonable access on notice to any workplace where the Candidate will perform the Assignment.
10.1. The Parties will hold information of the other that can be reasonably regarded as being confidential or is notified as being so by the disclosing Party (including this Agreement and details of any Candidate), in confidence and will not disclose such information without the consent of the other Party unless required by law or it has already been made available to the public other than through a breach of this clause.
11.1. Neither Party shall be liable to the other under or in connection with this Agreement for any indirect or consequential loss, loss of profits or loss of revenue. Nothing in this Agreement limits any warranty or right imposed by statute or regulation to the extent that it cannot lawfully be limited, or limits either party’s liability for its fraud (including fraudulent misrepresentation).
11.2. The Client will not during the course of this Agreement and for a period of 12 calendar months thereafter (either on its own account or for any other individual or organisation) directly or indirectly induce, entice or solicit away or try to induce, entice or solicit away from WIR any individual who is an employee, director or consultant of WIR.
11.3. If the Client employs or engages any person in breach of clause 11.2, the Client shall pay to WIR on demand the sum equivalent to 35% of the base annual salary plus guaranteed bonus of such person. The Parties agree that this is a genuine pre-estimate of loss.
11.4. If a clause is held by a Court to be illegal or unenforceable, that part will be severed from all other terms without affecting the validity or enforceability of all other terms of this Agreement.
11.5. If a Party is prevented in the performance of this Agreement by circumstances that are completely beyond the control of a Party (acting reasonably) then that Party will not be liable for what would otherwise have been a breach of its obligations under this Agreement.
11.6. No failure or delay by either Party in exercising any right or remedy available to it will constitute a waiver of that or any other right or remedy. No waiver or amendment of any clause will be effective unless confirmed in writing to the other Party and in the case of WIR, by a director of WIR.
11.7. This Agreement shall be governed by the laws of New Zealand. The Parties submit to the exclusive jurisdiction of the courts of New Zealand.
11.8. Those clauses which, by their nature, are intended to continue to have effect following termination of this Agreement shall survive and continue to bind the Parties.
NOTE: an Introduction resulting in an Engagement shall be sufficient to indicate acceptance of our Terms.