Terms of Business
Tomahawk Recruitment Terms of Business
This Agreement (“Agreement”) is between Tomahawk Recruitment Pty Ltd (ABN 63 633 205 393) (variously “Tomahawk” / ”we” / ”us” / ”our” in this Agreement), and the Client and their permitted successors and / or assigns (variously “the client”/ “‘you” / “your” in this Agreement) and specifies the terms upon which we will provide recruitment and / or consulting services (collectively “Services”) to you.
2. Acceptance and Variation of this Agreement
2.1 The acceptance of details relating to, interviewing or engagement of a candidate or independent contractor introduced by us, or the passing to any other person or organisation of personal information pertaining to a candidate or independent contractor introduced to you by us, will constitute acceptance of this Agreement.
2.2 This Agreement may only be varied by written Agreement between authorised representatives of each party.
3. Engagement of Candidates for Permanent or Fixed Term Recruitment Processes
3.1 You must notify us immediately where a candidate who we have introduced to you accepts an offer of employment or enters into a contract for personal services with you. Once you agree to engage a candidate introduced by us for any position within your organisation, even if the introduction is made indirectly, whether as an employee, contractor or in any other capacity, within 12 months of the initial introduction, you agree to pay us an amount calculated in accordance with the fee schedule in our Proposal and the provisions of clause 6 in this Agreement. A candidate introduced indirectly includes anyone introduced by another candidate who we had introduced to you in the previous 12 months prior to that introduction.
3.2 The client agrees to provide us with all information requested by us that is reasonably necessary for us to successfully carry out our services, which may include (but is not limited to), in the case of permanent or fixed term recruitment assignments, information regarding the identity of hiring managers, interviewers, reporting and functional relationships, position descriptions and HR policies and processes. We may request that candidates and hiring and / or reporting managers participate in assessments about their preferred work and management styles and candidates may also be requested to participate in aptitude tests. These investments assist us in finding the best possible candidate for our clients and maximising the likelihood that their hire will be successful.
3.3 The client agrees to sign off on a candidate induction checklist to ensure that permanent recruitment appointments have been provided with all reasonable support to be successful in their role. Failure by you to satisfy the requirements in the checklist may result in any guarantee terms that we offer being forfeited, at our sole discretion.
3.4 The client acknowledges that it can take varying amounts of time for us to identify and propose suitable recruitment candidates.
3.5 For the purposes of this Agreement, fixed term employment engagements refer to those which are for a period of one year or greater, include engagements where the candidate may be hired as a contractor by the client or by a third party and where fees are calculated in accordance with clause 6 in this Agreement.
4. Onward Referrals
4.1 All introductions made by us to you are strictly confidential, however should an introduction by us to you result in the engagement of a candidate or independent contractor, either as an employee, contractor or in any other capacity by any other party, you will be liable to pay us a fee calculated in accordance with the relevant fee per this Agreement, as if the candidate or independent contractor had been engaged by you, irrespective of whether or not you have a relationship with that party.
5. Suitability of Candidates and Independent Contractors
5.1 You will need to satisfy yourself as to the background, integrity, qualifications, right to work, value for money and where relevant, medical condition of any candidates or independent contractors that you employ, contract or otherwise engage, either directly or through a third party, and we do not provide any guarantees or warranties to you in relation to any of those matters. For the avoidance of doubt, all hiring and contracting decisions rest with you.
5.2 You understand and agree that you are ultimately responsible for your decision to employ or otherwise engage our candidates and independent contractors and that once they are employed or otherwise engaged by you (or by another party that you engage for that purpose) they work under your control, supervision and direction. Because of this, we will have no liability for any direct, indirect or consequential loss, claim, fine, penalty, expense, damage or delay (“Loss”) suffered by you or a third party arising out of or in connection with a candidate or independent contractor that we introduce to you, irrespective of how it may be caused or arise. You agree to indemnify and pay us on demand for any Loss (including but not limited to our own losses and any third party claims and costs) that we suffer or incur arising out of or in connection with (a) your decision to employ, contract or otherwise engage (or not to employ, contract or otherwise engage) any candidate or independent contractor introduced by us or (b) any act, error or omission of any candidate or independent contractor.
5.3 Our aggregate liability arising out of or in relation to this Agreement, however caused or arising, is limited to the fees already paid by you under this Agreement. This limitation of liability does not apply to the extent our liability cannot be limited or excluded at law.
5.4 Neither party will be liable to the other arising out of or in connection with this Agreement for indirect or consequential losses or damages, or any losses of revenue, profit, asset, right, data, use, contract, or business.
6. Fees for Permanent and Fixed Term Recruitment Services
6.1 The fee payable to us will generally be calculated as a percentage of the employed, contracted or otherwise engaged candidate’s annualised fixed remuneration package (“Package”) excluding any taxes that may be deducted, which will be taken to include gross salary before deductions for any salary sacrifices that may be made, and all other employment benefits or allowances, including but not limited to superannuation, subsidised housing, education and expense payment benefits, car parking, motor vehicle, travel and / or living away from home allowances, meal benefits, and guaranteed incentives or commissions. Motor vehicle benefits will be valued at the higher of the remuneration benefit calculated by you or $15,000 per annum, excluding GST. For part-time placements, the Package will be prorated up using the average full-time equivalent percentage or ratio worked by the candidate during the guarantee period.
6.2 Our Proposal to provide Permanent and Fixed Term Recruitment Services will include details of all Fees, based on the Proposed Scope of Work.
6.3 All invoices for Recruitment Services fees that include GST will be issued as Tax Invoices.
6.4 An invoice for permanent and fixed term recruitment services will be raised on the day that the employed, contracted or otherwise engaged candidate commences working for you or any other employer where a fee is payable for our services in accordance with this Agreement.
6.5 Our fees are to be paid on or before the date specified in any invoice we issue to you, or if no date is stated, within 14 calendar days from the issue date.
6.6 We may agree with you to provide recruitment services on a retained basis, where the opportunity to recruit for the proposed role has been exclusively provided to us. Retained recruitment services fees will be invoiced in accordance with our Proposal and are non-refundable if the assignment is suspended, terminated or unsuccessful, for whatever reason.
6.7 We may otherwise agree with you to provide recruitment services on a contingent basis, where you are seeking candidates but not necessarily awarding an exclusive supplier relationship. These fees will be invoiced in full on the commencement date. A minimum fee may apply to any contingent permanent or fixed term recruitment placement. We reserve the right to charge a pro rata fee if work is undertaken by us, acting in good faith, on an assignment that is subsequently withdrawn or cancelled by you after a short list of candidates has been presented to you.
6.8 Time is of the essence in relation to payment and we may require earlier payment or payment prior to the performance of our services if your creditworthiness is compromised after we commence our services, as may be reasonably determined by us. All payments must be made in full without any set off or deduction whatsoever. If you fail to pay on time then we may, without prejudice to any other remedy available to us:
6.8.1 Cancel this Agreement or suspend supply; and / or
6.8.2 Set off any other payments you have made against amounts that now fall due; and/or
6.8.3 Charge you penalty interest calculated daily in accordance with the maximum rate permitted by legislation and any costs of recovery (including legal costs on a full indemnity basis).
6.9 Our fees will be invoiced and payable in Australian dollars. Where the remuneration is expressed in a different currency the fee will be based on the Australian dollar equivalent calculated according to the exchange rate published by the Reserve Bank of Australia website on the day that the invoice is issued. If you are required to make a deduction under any tax law from the payment due to us (for example, because of Withholding Tax laws) the amount of the payment due shall be increased to an amount which after making any tax deduction made leaves an amount equal to the payment that would have been due if no tax deduction had been required.
7. Special Terms and Fees for Independent Contractor Engagements
7.1 We may source, screen or shortlist independent contractors for roles that are not permanent or fixed term roles or advise you regarding their selection by you (“Independent Contractor Services”). For the avoidance of doubt, these services are not recruitment or placement services. If you select, employ, contract or otherwise engage with an independent contractor that we have introduced to you, you do so entirely at your own risk and we do not provide any guarantees or warranties regarding our Independent Contractor Services or the services provided to you by an independent contractor other than those imposed by legislation.
7.2 Our Proposal to provide Independent Contractor Engagement Services will include details of all Fees, based on the Proposed Scope of Work.
7.3 We will not employ, contract with, manage, supervise or otherwise engage independent contractors on your behalf, or on behalf of any other party that you may contract with or otherwise engage. We will not be responsible for taxation, superannuation, payroll tax, insurances or other employment related liabilities or obligations relating to independent contractors, in any circumstances.
7.4 We may suggest other parties to you that you may contract with to employ or otherwise engage with an independent contractor on your behalf, on terms to be agreed solely between you and those parties. We provide no guarantees, warranties or other assurances regarding those parties that we may suggest to you and accept no responsibility of any kind for any losses that you may incur as a consequence of you contracting with or otherwise dealing with those parties. For the avoidance of doubt, if you choose to contract with or otherwise deal with any parties that we suggest to you or that you otherwise procure, you do so entirely at your own risk.
7.5 Our fees for Independent Contractor Services may be proposed and calculated using either a periodical rate or fixed fee whether independent contractors are employed, contracted or otherwise engaged and paid by you or by a third party that you contract or otherwise engage to provide those services to you.
7.6 Our fees for Independent Contractor Services may be paid to us by you or by a third party that you contract or otherwise engage in connection with your engagement of an independent contractor introduced by us. If a third party fails to pay our fees on your behalf we reserve the right to demand payment of those fees directly from you, irrespective of your contract or dealings with that third party. If you contract with or otherwise engage a third party to pay our fees we may, at our sole discretion, enter into a contract or deed with that third party in relation to those matters on terms that are “commercial in confidence” between us and that third party.
7.7 All invoices for Independent Contractor Services fees that include GST will be issued as Tax Invoices.
7.8 Time is of the essence in relation to payment and we may require earlier payment or payment prior to the performance of our services if your creditworthiness is compromised after we commence our services, as may be reasonably determined by us. All payments must be made in full without any set off or deduction whatsoever. If you fail to pay on time then we may, without prejudice to any other remedy available to us:
7.8.1 Cancel this Agreement or suspend supply; and / or
7.8.2 Set off any other payments you have made against amounts that now fall due; and/or
7.8.3 Charge you penalty interest calculated daily in accordance with the maximum rate permitted by legislation and any costs of recovery (including legal costs on a full indemnity basis).
7.9 Our fees will be invoiced and payable in Australian dollars. Where the basis of calculating our fees for Independent Contractor Services is expressed in a different currency the fees will be based on the Australian dollar equivalent calculated according to the exchange rate published by the Reserve Bank of Australia website on the day that the invoice is issued. If you are required to make a deduction under any tax law from the payment due to us (for example, because of Withholding Tax laws) the amount of the payment due shall be increased to an amount which after making any tax deduction made leaves an amount equal to the payment that would have been due if no tax deduction had been required.
8. Advertising & Additional Costs
8.1 Where agreed, we may advertise your position(s) where we are engaged to recruit candidates or to source independent contractors in agreed printed and / or digital newspapers, magazines, specialist journals or job boards, news websites, newsletter and / or other e-mail campaigns, social media channels, professional and other digital communities or any other media, and you agree to reimburse us for related out of pocket costs within 7 days of us issuing the invoice for those costs.
8.2 You agree to reimburse us for any out-of-pocket expenses agreed between the parties or otherwise reasonably required to be incurred by us in connection with the Services within 7 days of issue of our invoice.
9. Replacement Guarantee for Permanent and Fixed Term Recruitment Engagements
9.1 If a candidate you have employed, contracted or otherwise engaged, either directly or by another party, as a result of our Services leaves your employment within the lesser of (i) 6 months from date of commencement or (ii) the agreed probation period for the placed candidate, we will use our reasonable endeavours to find a replacement candidate for you free of charge. This replacement guarantee only applies when all of our fees have been paid within agreed terms and we have been notified in writing of your request and the full circumstances of the termination within 7 days of termination occurring. The Replacement Guarantee will not apply if the termination is because of redundancy, retrenchment, the death or incapacitation of the employee because of a matter that is subject to a workplace health and safety investigation or material changes to the candidate’s position description or working conditions including (but not limited to) reporting relationships. This replacement guarantee is valid for a period up to six months from the placed employee’s commencement date and, as the replacement guarantee relates to a candidate placement with a specific position description, we reserve the right to negotiate our replacement guarantee terms should material role changes occur compared to the role originally recruited for. Where a replacement is recruited there will be no guarantee period applicable for that replacement. For the avoidance of doubt there is no replacement guarantee on a fixed term contract of employment or similar limited period hire where the fixed term is less than one year.
10. Re-engagement of Candidates for Permanent and Fixed Term Roles
10.1 Should you, or any subsidiary, associated company, or related body corporate of yours subsequently re-engage the candidate, or otherwise use the candidate, within the period of one year from the date of termination and you have called on our Replacement Guarantee, a full fee calculated in accordance with clause 6 above will become payable for the Replacement Guarantee candidate (with no entitlement to a refund).
11. Consulting Services
11.1 Our Proposal to provide Consulting Services will include details of all Fees, based on the Proposed Scope of Work.
11.2 Both parties may postpone or cancel meetings, workshops, calls, conferences, exchanges of information or other interactions required for us to provide you with Consulting Services by prior e-mail notice. In such cases, you and we will work in good faith to reschedule those interactions to ensure that the Consulting Services can still be provided as agreed, and any payments already made or payable by you relating to those interactions will be applied by us to the rescheduled interactions. Where interactions are postponed or cancelled by you and cannot be practically rescheduled, we are entitled to charge you for that portion of the Consulting Services and retain any payments already made without having to provide the part of the Consulting Services that related to the affected interactions. We will also charge you for any out of pocket travel and other costs incurred as a direct result of your postponement or cancellation of any interactions, to the extent that we are unable to recoup those costs.
12.1 Either party may terminate this Agreement if: (a) the other party commits a material breach of this Agreement and such breach is not remedied within 14 calendar days, or (b) any proceedings related to insolvency is taken against the other party or the other party makes any arrangement or composition with creditors.
12.2 We may terminate this Agreement and retain any funds already paid to us if any invoice that we issue to you is overdue by more than 30 days.
12.3 This Agreement may also be terminated at any time with the consent of both parties, or by either party where a Force Majeure event (including but not limited to acts of war, terrorism, civil unrest, outbreaks of disease, natural disasters, industrial action, loss of key staff or production equipment or supplies and actions of governments or regulators adversely affecting that party's operations) prevents that party from fulfilling its obligations.
12.4 Termination of this Agreement for whatever cause shall be without prejudice to any rights or obligations that have accrued or were owed prior to such termination, including but not limited to payments of money.
12.5 We will not be required to refund any part of payments already made by you in connection with our services if you terminate the Agreement before the completion of the services or, through your own acts or omissions, practically prevents us from providing the services.
13. Privacy and Confidentiality
13.1 You agree to preserve the privacy of personal information concerning any of our candidates or independent contractors that has been provided to you, or accessed by you, to a standard not less than that prescribed by the Privacy Act 1988 (Cth) as amended.
13.2 A party (“Receiving Party”) must maintain the confidentiality of any information that is communicated to it by the other party (“Disclosing Party”) that a reasonable person would consider confidential (including the fact that a candidate or independent contractor may be seeking a position). The Receiving Party must not use or disclose confidential information disclosed by the Disclosing Party without the Disclosing Party’s prior written consent, except if using or disclosing (a) to such officers, employees, contractors and affiliates as are strictly necessary to provide the services, (b) as required to enforce a party’s rights under this Agreement, or (c) as otherwise permitted by law.
14. No Guarantees or Warranties
14.1 All guarantees, warranties and representations, whether express or implied by law, trade, custom or otherwise, are excluded to the extent permitted by law unless they are expressly given by us under this Agreement.
15. Intellectual Property
15.1 This Agreement shall not affect either party’s existing intellectual property rights. Each party acknowledges and agrees that no intellectual property is conveyed or vests in the other party or in any other person through our delivery of Services or any other matter that is the subject of this Agreement.
16. Governing Law
16.1 This Agreement and the supply of the Services will be governed and construed in accordance with the laws of the State of Victoria and the parties hereby agree to submit to the exclusive jurisdiction of a competent court in that State or Territory of Australia.
17.1 No express or implied waiver by either party of any term of this Agreement will constitute a waiver unless in writing and signed by the party providing the waiver.
17.2 This Agreement and any invoice issued by us, or other documents that we attach to or reference by this Agreement will constitute the entire Agreement and supersede all prior Agreements, representations or statements whether oral or written made by or on behalf of you or us. You acknowledge and agree that the subsequent provision of any other terms by you are not accepted by us and that such terms will not supersede or interrupt the operation of this Agreement in whole or in part until those terms are formally accepted in writing by our authorised representative. You acknowledge that, except as set out in this Agreement, you do not enter into this Agreement as a result of or in reliance on any promise, representation, advice, statement or information of any kind given or offered by us, whether in answer to any enquiry or not.
17.3 If any provision of this Agreement is determined by a court to be invalid or void or voidable then the remaining provisions shall not be affected.
17.4 The parties exclude all implied terms to the extent permitted by law.
17.5 You may not subcontract, assign or otherwise transfer this Agreement in whole or in part, without our prior written consent, which may not be unreasonably withheld or delayed. We may subcontract, assign or otherwise transfer this Agreement in whole or in part to another legal entity provided that this entity is controlled and managed by the same persons as control and manage us and that entity is legally capable of delivering the Services.
17.6 If the unfair contract terms laws under the Australian Consumer Law apply to this Agreement because you are a small business and the Agreement is considered a standard form contract, the following provisions will apply:
17.6.1 Your indemnity obligation and our liability exclusion are reduced to the extent caused by our fraud, negligence or deliberately wrongful act or omission in connection with our provision of recruitment services to you under this Agreement with respect to the relevant placement; and
17.6.2 Your total aggregate liability is limited to the annual fees paid or payable by you to us under this Agreement, however this limitation does not apply to our entitlements to indemnities or your liability to pay any fees or interest to us under this Agreement.
17.7 This Agreement is not required to be executed under signature or common seal and you acknowledge that any officers, employees, agents or other persons connected with you who engage with us to deliver the Services have the capacity to contract with us on your behalf.
17.8 Any notices required to be served under this Agreement may be served by e-mail from and to your and our acknowledged representatives on a business day in the State of Victoria.
17.9 The parties agree that any disputes in relation to this Agreement will be resolved through direct negotiation before sequentially proceeding to mediation, arbitration or litigation, with both parties agreeing to act in good faith at all times through that process.