1.1. In these Terms and Conditions, the following definitions apply:
In this Agreement, unless the contrary intention appears:
2.1. The clause headings are for ease of reference only and will not be relevant to interpretation;
2.2. Words in the singular include the plural and vice versa;
2.3. Words importing a gender include any other gender;
2.4. A reference to a person includes bodies corporate and unincorporated associations and partnerships;
2.5. Where a word or a phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
2.6. A reference to any Act of Parliament includes any amendments or re-enactment of the same or regulations made under that Act;
2.7. An obligation on the part of two or more persons bind them jointly and severally;
2.8. When the date or last day for doing an act is not a Business Day, the day or last day for doing the act will be the next following Business Day.
3.1. The Client wishes to engage Working Spirit to supply Candidates for Work. In consideration of Working Spirit’s provision of the Services, the Client agrees to pay the Placement Fees and related expenses to Working Spirit.
3.2. The Client agrees that the Agreement is subject to these Term and Conditions.
4.1. The Placement Fees for the supply of the Candidate(s) are stated in Schedule 1 of these Terms and Conditions.
4.2. GST and other taxes and duties that may be applicable will be added to the Placement Fees.
4.3. Working Spirit may vary the Placement Fees at any time in the following circumstances:
(a) any statutory charges, levies, taxes or other payments that Working Spirit is legally required to make or for which Working Spirit may become liable in respect of providing a Candidate under these Terms and Conditions.
4.4. The Client must pay the Placement Fees to Working Spirit once the Candidate has been offered Work.
4.5. Should the Candidate fail to pass the Probation Period, the Client will notify Working Spirit in writing of the Candidate’s failure to pass the Probation Period and Working Spirit will have 90 days from the date of notice to find a replacement candidate for the Candidate.
4.6. Should Working Spirit fail to find a replacement candidate as set out in clause 4.5 above, the Client will be entitled to a 1/3 refund of the Placement Fees.
5.1. The Client is responsible for reimbursing all expenses incurred by a Candidate in relation to the performance of the Work. The Client must make appropriate arrangements with the Candidate for authorising and reimbursing these expenses.
5.2. The Client must reimburse Working Spirit for all disbursements or expenses incurred by Working Spirit in relation to providing its Services, including but not limited to advertising expenses.
6.1. Invoices for the Services will be issued by Working Spirit once a Candidate has been offered Work.
6.2. Invoices are payable within 14 days from the date of invoice and the Client is not entitled to deduct or set-off any monies that it claims are owed by Working Spirit.
6.3. If the Client fails to pay any invoice before its due date, Working Spirit is entitled to charge interest of 5% per annum (compounded daily at such a rate after as well as before any judgement) on any overdue amounts, payable by the Client immediately on demand from the due date up to the date of payment.
7.1. The Client agrees to notify Working Spirit within one business day in the event of the Work engagement of the Candidate. If the Client does not notify Working Spirit within one business day, the Client will be subject to late notice fees as defined in Schedule 1.
7.2. The Client must comply with any legal requirements and the statutory conditions associated with the engagement of the Candidate including, where an employment relationship is to be established, enterprise agreements and awards (if applicable).
7.3. The Client must provide the Candidate with a suitable and safe workplace that complies with the relevant occupational health and safety laws and workplace laws.
7.4. The Client is responsible for ensuring that the Candidate is adequately covered by insurance policy(ies) held or required to be held by the Client in respect of the Client’s business and in relation to the Work (including but not limited to public liability and third party motor vehicle insurance).
7.5. The Client must not disclose the Placement Fees (or any changes) to the Candidate.
8.1. Working Spirit will use all reasonable efforts to provide a Candidate to the Client with the requisite skills and qualifications to fulfil the Client’s requirements.
8.2. Working Spirit will endeavour to supply a Candidate in a timely fashion to meet the Client’s needs.
9.1. When requesting Working Spirit to supply a suitable Candidate, the Client must provide Working Spirit with the following information:
(a) the identity of the Client and the nature of its business;
(b) the commencement date of the Work;
(c) whether the role is one of full- time employment or for a contractor for a specified period or for the completion of a specified task;
(d) the type of work (including the location, hours of work, any potential occupational health and safety risks together with the steps taken to prevent or control such risks);
(e) the training, skills, qualifications, attributes or authorisations required;
(f) any other information which the Client considers necessary or relevant to enable Working Spirit to identify and assess the suitability of potential Candidates.
9.2. On receipt of the Client’s instructions, Working Spirit will endeavour to take steps as soon as reasonably practicable to provide the following information to the Client:
(a) obtain confirmation of the Candidate’s identity; and
(b) confirm that the Candidate has the requisite experience, training, qualifications and any authorisations.
9.3. The Client may instruct Working Spirit to advertise (in any appropriate manner) in relation to the Work.
9.4. In the event that any information or documents supplied to Working Spirit by a Candidate including, but without limitation to, past employers or personal referees, are found to be inaccurate or misleading, Working Spirit will not be liable to the Client for any loss, damage or cost which may thereby be occasioned. For the avoidance of doubt, Working Spirit is not responsible for ensuring any information or document concerning the Candidate is accurate or genuine.
10.1. Whilst Working Spirit will exercise reasonable skill and care in the selection of a suitable Candidate, Working Spirit is not liable for any Candidate’s negligence, dishonesty, misconduct or lack of skill during the Work.
10.2. Working Spirit gives no warranty (either expressed or implied) in respect of any Candidate introduced or supplied, and accepts no liability for any failure of a Candidate to perform or to comply with his or her terms of engagement with the Client or for any loss, expense, damage or delay howsoever arising from the supply of the Candidate to the Client or as a result of the Candidate’s Employment.
10.3. Except as required under the Competition and Consumer Act 2010 (Cth), Working Spirit makes no representations and give no warranties expressly or impliedly as to the suitability of a Candidate for a particular Employment.
11.1. The Client must advise Working Spirit in writing as soon as is practical if the Client is not satisfied with the services provided or the Candidate’s performance or conduct.
12.1. The responsibility for protecting the Client’s confidential information and intellectual property lies solely with the Client. Working Spirit is not liable for any claim arising from any breach of the Client’s confidentiality or infringement of its intellectual property rights.
13.1. The Client acknowledges that Working Spirit is not engaged to perform the services required for the Work but are instead the supplier of Candidates to perform the work required. The Client agrees that Working Spirit will not be liable in respect of any damage, loss or injury of whatsoever nature or kind, however caused, whether by Working Spirit’s negligence (or a positive act) or the negligence (or a positive act) of the Candidate, which may be suffered or incurred, whether directly or indirectly, in respect of the services provided. The Client agrees to indemnify Working Spirit against any claim made against Working Spirit by any person as a result of such acts or negligence of the Candidate.
14.1. The Client agrees to indemnify Working Spirit against any loss, damages, claims, expenses, costs incurred by Working Spirit arising out of a breach of these Terms and Conditions by the Client.
14.2. The Client warrants that it will not cause Working Spirit to be in breach of any conditions of any insurance held by Working Spirit or on its behalf for the Candidate or in connection with the Candidate’s performance of the Employment. The Client indemnifies Working Spirit for any loss, expense or costs incurred by Working Spirit arising from such a breach of its insurance policy.
15.1. This Agreement shall terminate:
(a) if either Party gives the other party a written notice of any breach of these Terms and Conditions and if the breach can be remedied, the party in breach fails to remedy the breach within seven (7) business days commencing from the date of the notice; or
(b) if both Parties agree in writing to terminate the Agreement.
15.2. Notwithstanding the provisions of sub-clause 15.1, Working Spirit may terminate the Agreement immediately in writing:
(a) if the Client breaches any of these Terms and Conditions and such breach is not remedied within 7 days of written notice of the breach given by Working Spirit;
(b) if the Client is insolvent, enters into a deed of arrangement or an order is made for it to be wound up or it is declared bankrupt, enters into receivership or has a trustee in bankruptcy appointed or is placed under administration; or
(c) the Client fails to comply with any legal or statutory requirements.
15.3 Working Spirit is not liable to the Client for any loss whatever arising from exercising its rights under these Terms and Condition to terminate the Agreement.
16.1. If Working Spirit is delayed, hindered, or otherwise prevented from performing its obligations under these Terms and Conditions by reason of events or circumstances beyond the reasonable control of Working Spirit including but not limited to acts of God, wars, riots, strikes, lock-outs, trade disputes or labour disturbances, accidents, storm, fire, floods, transport or labour or any other circumstances, Working Spirit is not liable to the Client for any loss or damage which is or may be suffered by the Client whether as a direct or indirect result of any such events or circumstances.
17.1. The Parties hereby associate themselves as principal (the Client) and contractor (Working Spirit).
17.2. Nothing in this Agreement will make:
(a) a Party the partner of any other Party;
(b) except as expressly agreed in writing between the Parties from time to time, a Party the agent of any other Party;
(c) a Party the legal representative of any other Party; nor
(d) a fiduciary relationship between the Parties.
17.3. Where a Party acts on behalf of any other without authority, such Party will indemnify the other against any losses and/or claims arising out of any such act.
18.1. Unless otherwise agreed to by the Client and Working Spirit, during the Term, Working Spirit may disclose the Client’s name as a customer of Working Spirit. The Client hereby grants Working Spirit the right to display the Client’s name, company, and logo in Working Spirit’s marketing materials and on Working Spirit’s public website, in each case, in accordance with any branding guidelines the Client may provide to Definitiv.
18.2. The Client may request that Working Spirit stop disclosing the Client as a customer by submitting an email to email@example.com at any time. Please note that it may take Working Spirit up to 30 days to process the request.
19.1. This Agreement constitutes the sole and entire agreement between the parties and a warranty, representation, guarantee or other term or condition of any nature not contained or recorded in these Terms and Conditions is of no force or effect
20.1. If any of these Terms and Conditions is invalid, void, illegal or unenforceable then that clause is severed to the minimum extent required and the validity, existence, legality and enforceability of the remaining clauses are not affected, prejudiced or impaired.
20.2. These Terms and Conditions are governed by and construed in accordance with the laws of the State of Western Australia and the Commonwealth of Australia (as applicable). These Terms and Conditions are subject to the jurisdiction of the courts of the State of Western Australia and the Commonwealth of Australia.
20.3. Working Spirit is under no liability whatever to the Client for any loss suffered by the Client arising out of a breach by Working Spirit of these Terms and Conditions.
20.4. The Client is not entitled to set-off against or deduct from the Fees any sums owed or claimed to be owed to the Client by Working Spirit.
20.5. Working Spirit reserves the right to these Terms and Conditions at any time. If following any such review, there is any change to these Terms and Conditions, then that change takes effect from the date on which Working Spirit notifies the Client of such change in writing.
20.6. The failure by Working Spirit to enforce any of these Terms and Conditions is not a waiver of that clause (unless specifically waived in writing and signed by Working Spirit) nor does it affect Working Spirit’s right to subsequently enforce that clause.
Fees for the placement of a Candidate are as follows:
$50 per business day for every business day the Client is late in notifying Working Spirit of the Work engagement of a Candidate.
The Client will be charged upon the signing by the Candidate of an employment contract with the Client.
Payment is due 14 days from the date of invoice.
Published: 28 January 2020
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