TERMS and CONDITIONS of JUST AUTOMOTIVE RECRUITMENT, Cronulla, NSW, 2230 (“the Contractor”)
1. Introduction
1.1 Application of these Terms and Conditions
These Terms and Conditions are incorporated into any quotation or contract between the Contractor and Client for the supply of services by the Contractor to the Client.
1.2 Interpretation In these Terms and Conditions: “Business Day” means a day on which banks are open for general banking business in the State or Territory in which the Contractor’s premises are located; “Client’ shall mean the individual/s or company/trust as described on the Quotation to which these Terms and Conditions are attached and to whom the Contractor introduces candidates. “GST” means A New Tax System (Goods and Services Tax) Act, 1999; “interest Rate” means the aggregate of two percent (2%) and the rate of interest expressed as a percentage per annum charged by the Commonwealth Bank of Australia from time to time on Overdraft Accounts exceeding One Hundred Thousand Dollars; “Quote” means the quotation described in clause 3.1.“Services” means the work required to be done in order to fulfill the Client’s instructions as set out in the Quote. In the event of any inconsistency between two or more documents that constitute the agreement between the Contractor and the Client, the documents shall be interpreted in the following order of priority: These Standard Terms and Conditions; Written proposals, quotes or price lists issued by the Contractor; Covering letters, special terms or conditions or similar documents issued by the Contractor.
1.3 General In these Terms and Conditions, unless the context otherwise requires: a. the singular includes the plural and vice versa; b. a reference to a clause is a reference to a clause of these Terms and Conditions; c. a reference to a party to these Terms and Conditions or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns; d. a reference to a period of time (including, without limitation, a year, a quarter, a month and a day) is to a calendar period. e. headings are for convenient reference only and do not affect interpretation.
1.4 Business Day If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing: a. if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day, and; b. in all other cases, may be done on the next Business Day.
2. Services
The Contractor will provide the following Services inclusive of: a. the profiling of personnel and the job selection criteria, and; b. the process of selection of personnel including (where necessary) interviewing personnel, reviewing references of personnel, and selecting candidate personnel, and; c. the presentation of candidate personnel to enable the Client to make the final selection. d. Selected training as required by the Client.
3. Quotes/Supply of Quotation
3.1 The Contractor will provide the Client with a Quote specifying: a. the services to be provided in order to fulfil the Client’s instructions, and; b. the Contractor’s charge for the performance of such work.
3.2 Acceptance by Client. Where the Contractor has given the Client a Quote:
a. The Contractor need not commence the Services until the Quote has been accepted by the Client.
b. The Client must accept the Quote by signing and returning the Quote by post, facsimile, or scanned attachment to an electronic email) before the Contractor is to commence work.
c. Acceptance and signature by the Client of the Quote will constitute acceptance by the Client of these Terms and Conditions.
d. The interviewing, employing or passing on information of candidates presented by the Contractor, by the Client will also constitute acknowledgment of acceptance of these Terms and Conditions by both the Client and the Contractor.
3.3 Quote evidence of instructions If a written Quote is accepted by the Client, the Services, the subject of the Quote, shall be carried out and the Client shall pay for the Services in accordance with these Terms and Conditions
4. Fees and Charges
4.1 Invoice On the completion of the Services by the Contractor in terms of the Quote, the Contractor will issue an invoice to the Client for the amount of the Services.
4.2 Cancellation and Confidentiality
a. If a Quote is cancelled after the referral of the personnel, the Quote will be payable in full or, at the discretion of the Contractor, a percentage of the Quote shall be claimed by the Contractor calculated to date of cancellation.
b. The Contractor, in its absolute discretion, may halt and cease all further work upon written notice to the Client due to arising conflicts of interest and non-payment of accounts.
c. Introductions of candidates by the Contractor are confidential between the Contractor and their Client. Information on candidates presented by the Contractor must not be forwarded by Clients to third parties. If the Client in any way directly or indirectly assists third parties (including, without limitation forwarding the above confidential information to those third parties) to place the Contractor’s candidates, then the Client will be liable to the Contractor for the Contractor’s standard placement fees.
d. If a Quote is suspended for more than thirty (30) days at the request of the Client or as a result of something for which the Client is responsible, the Contractor may issue an invoice for a particular sum (to be specified by the Contractor) for the work already done and for other costs incurred by the Contractor and which shall not be greater than the Deposit referred to on the cover sheet to which these Terms and Conditions refer.
e. Invoices may, at the Contractor’s discretion, be sent electronically and will be payable by the Client within fourteen (14) days of the sending of such electronic invoice.
5. Payment
5.1 Time for payment
a. The Client must, within fourteen (14) days of the Client receiving the Contractor’s invoice, pay to the Contractor the total amount set out in the invoice.
b. If the Client fails to make payment due to the Contractor by the due date for payment or if the Client should breach any of the other Terms and Conditions, the Contractor can (without notice to the Client) suspend the further supply of Services to the Client or terminate the agreement between the Contractor and the Client and seek specific performance of these Terms and Conditions.
5.2 Interest The Contractor may charge interest at the Interest Rate on amounts not paid within the time specified in clause 5.1. 5.3 Payment Terms
a. The Contractor may, in its absolute discretion, agree payment terms (“the Payment Terms”) of any outstanding Invoice with the Client.
b. In this event the amount of the capital on the balance owing from time to time shall bear interest at the Interest Rate calculated as from the date of the Invoice to date of payment.
c. Instalments will be dictated by the Contractor to the Client.
d. The Client shall have the right to anticipate payment of any part or the whole of the capital and interest to the Contractor at any time without notice.
e. The whole amount due under the Payment Terms shall become due and payable if –
i. The Client fails to make payment to the Contractor of any amount due on due date; or
ii. The Client commits any other breach of his, her, its obligations in terms of the Payment Terms; or
iii. Any judgment or order of any court is granted against the Contractor; or
iv. The Client compromise or attempt to compromise with any of his, her, its creditors; or
v. The Client attempts to pass any mortgage or other encumbrance, or should the Client in any way pledge or assign any of his, her, its rights to any of his, her, its assets or offer to dispose of any of his, her, its assets (other than in the ordinary course of my business); or
vi. The Client ceases to carry on his, her, its business or notify any person of his, her, its intention to do so; or
vii. The Client applies for the surrender of his, her estate as insolvent or if the Client is a company, it applies for liquidation Order; or
viii. The Client, if an individual, dies.
f. If the Contractor instructs a Solicitor to enforce the Contractor´s rights hereunder, the Client shall pay all legal costs as between Solicitor and own client, whether or not such costs are incurred in legal proceedings.
6. Liability
6.1 Non-excludable Rights The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”)
6.2 Disclaimer of Liability The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Contractor for a breach of a Non-excludable Right is limited, at the Contractor’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Services supplied again.
6.3 Indirect losses Notwithstanding any other provision of these Terms and Conditions, the Contractor is in no circumstance (whatever the cause) liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Client for:
a. any increased costs or expenses;
b. any loss of profit, revenue, business, contracts or anticipated savings;
c. any loss or expense resulting from a claim by a third party; or
d. any special, indirect or consequential loss or damage of any nature whatsoever caused by the Contractor’s failure to complete or delay in completing the Services.
6.4 Electronic data Without limiting the generality of the foregoing clauses, the Contractor will not be liable to the Client for loss, however caused, of any data stored on disks tapes, compact disks (CD, DVD, USB), or other media supplied by the Client to the Contractor.
6.5 Client’s property Subject to clause 6.4, the Contractor will not be liable for the damage, loss or destruction of any property of the Client in the Contractor’s possession unless the loss or damage is due to the failure of the Contractor to exercise due care and skill in handling the property.
6.6 Force Majeure The Contractor will have no liability to the Client in relation to any loss, damage or expense caused by the Contractor’s failure to complete the Services as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war or any other matter beyond the Contractor’s control.
7. General Matters
7.1 Advertising The cost of advertising and Internet advertising will be borne by the Contractor as part of its service offered to Clients.
7.2 Electronic/magnetic media All disks, tapes, compact disks or other media (other than media supplied by the Client) used by the Contractor to store data for the purposes of completing the Services are the property of the Contractor. The Client cannot require the Contractor to supply to the Client any data so stored. In the event that the Contractor does supply any data so stored or created the Contractor may charge for supplying such data to the Client.
7.3 No Waiver A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
7.4 Severability Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
7.5 Governing law and jurisdiction These Terms and Conditions are governed by the law in force in the State or Territory in which the Contractor’s premises are located and the parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms and Conditions.
7.6 Non-disclosure and confidentiality agreements The parties hereby agree that all communication (written, oral or otherwise) is presumed to be confidential and the parties shall treat with the utmost confidence all matters between them. The Contractor will not be liable for any accidental disclosure or loss of any information imparted to it by the Client at any time.
7.7 Relationship The relationship between the Client and the Contractor is neither principal and agent nor employer and employee nor constitutes a partnership between the parties.
7.8 Service of Notices The respective addresses for the service of notices under these Terms and Conditions ("the notice address") shall be respectively the registered offices of the Contractor and the Client provided that either of the parties may by written notice to the other party substitute another address that will then become the notice address. Notices may be given by being:
a. left at the notice address;
b. sent to the notice address by post, e-mail or facsimile;
c. delivered by hand to either of the parties to the Agreement. Any notice posted shall be deemed to have been received seven (7) Business Days after the date of posting and any notice given in any other manner shall be deemed to have been received at the time when in the ordinary course it may be expected to have been received.
8. Goods and Services Tax (GST)
Unless otherwise stated, all amounts expressed or described in these Terms and Conditions are GST inclusive amounts as stated on the Quote.
9. Company Client
Where the Client is a Company, the Officers of the Client agree that they will do whatever may be necessary from time to time to give effect to these Terms and Conditions and they agree to be bound by the guarantee and indemnity provisions set out in Clause 11 hereof.
10. Special Conditions
The Contractor can impose upon the Client special conditions which can be set out in a schedule or attachment hereto. If any term of a special condition is inconsistent with these Terms and Conditions, the special condition shall prevail to the extent of the inconsistency.