These terms and conditions of business (TOB) regulate the basis upon which Candidates are introduced by HCM to Clients. The Client may accept the terms and conditions of this contract either (a) in writing (i.e. email) or (b) by its conduct; by contacting or meeting with the candidate(s) or passing on the Candidate(s) information to a third Party.
Definitions:
- “HCM” means HCM Australia Pty Ltd (ABN 43 117 435 373) whose registered office is: Level 1, 56 Clarence Street, Sydney NSW 2000;
- “The Candidate” means the individual (including any member of HCM’s own staff) introduced to the Client by HCM for an Engagement;
- “The Client” means a person, firm or corporate body requiring the services of the candidate;
- “Engagement” means the utilisation or employment of the Candidate, directly or indirectly, whether under a contract of service or for services, or in partnership or under a license or franchise agreement or otherwise, arising from an introduction, retained assignment or otherwise;
- “Introduction” means the introduction to the Client by HCM of a Candidate arising from a database, contingent search or any other means.
- “TOB” means the Terms and Conditions of Business.
1. Introduction Fees:
1.1 Fees for the Permanent Employment of a candidate introduced by HCM are calculated as 18% of the candidate’s anticipated first year’s gross annual remuneration package, including superannuation.
1.2 Fees for engaging a Candidate on a Fixed Term Contract (a salaried position for a finite time period) are calculated as per Permanent Fees, and pro-rata’d to the term of the initial engagement, up to a maximum of 12 months (the full annual salary package). For initial engagement durations of less than 12 months, any extension or re-engagement within 12 months of the end of the initial engagement, will incur the remaining pro-rata’d portion of the fee. No further fee is payable once a total of 12 months’ fee has been paid.
1.4 Fees for Temps / Contractors are agreed in advance with the Client on a case by case basis and a separate contract for each engagement will be issued. Fees for Temps / Contractors placed by HCM and converted by the Client to Permanent Employment will be consistent with HCM’s fees for permanent employment in Clause 1.1 during the first 3 months of a contractor’s engagement. For each subsequent calendar month worked beyond three months, the Percentage Fee will be reduced by 1% per month, subject to a minimum fee of 5%.
1.6 HCM reserves the right to charge interest on any amounts overdue past the agreed payment terms. HCM will not unreasonably exercise this right. However, in these circumstances, the Client shall be liable to pay the full fee as stated on the invoice together with interest at the current Westpac overdraft rate on any overdue amount from the date which payment was due to the date of actual payment (whether before or after judgement) and all costs and expenses (including all legal costs, disbursements, and fees) incurred in the collection or attempted collection of any sums due.
1.7 All fees and charges quoted by us are exclusive of GST. GST at the prevailing rate will be added to our tax invoices.
2. Guarantee Provision:
2.1 In the event that a Permanent Engagement terminates within 13 weeks of its commencement date, HCM will provide a free replacement (subject to any fee adjustments for differences in remuneration) or a credit note against future permanent recruitment valid for 12 months, provided that:
- HCM has received payment of all invoices arising from the Engagement in accordance with the TOB and received payment by the invoice due date in Clause 1.5.
- HCM receives written notification from the client of the termination of the engagement within seven days of such termination.
- The termination is not due to:
- redundancy, changes in operational requirements, work shortage or the relocation of the client.
- any action on the Client’s part which might make the termination of the successful candidate’s employment or engagement unlawful, harsh, unjust or unreasonable
- any false or misleading representation made during the recruitment process to the successful candidate in connection with the engagement
3. Termination
3.1 Either party may terminate this Agreement forthwith if:
- the other party commits a breach of this Agreement or is in default of any warranty; and
- the defaulting party fails to correct such breach or default within 14 days of receiving notice from the other party specifying such breach or default.
3.2 Either party may terminate the agreement with 1 month’s written notice at any time.
3.3 Termination of this Agreement does not affect the payment by the Client of any outstanding fees that are owed to HCM
3.4 Termination of this Agreement will not end those provisions that are capable of surviving the ending of this Agreement, including (without limitation) Clauses 1, 4, 5, 6, 7 and 8.
4. Confidentiality and Non-Solicitation
4.1 HCM will always request the Candidate’s written approval to represent them to the Client’s organization.
4.2 By requesting HCM to submit applicants, the Client confirms that they have already considered all their 'internal database' candidates, or candidates known to them through advertising or social media networks, for the role. As a result, any candidate referred by HCM, who is then hired, incurs the introduction fee, regardless of whether the candidate is subsequently found in the Client’s internal database or networks after being referred. A candidate that is already on the Client’s database or networks does not negate the obligation to pay HCM the fee for any ethically referred candidate who is hired by the client.
4.3 Where any Candidate introduced to the Client by HCM is already known to the Client and has been recently contacted by the Client, the Client must inform HCM in writing of how the Candidate is known to them and when they were contacted. HCM will not unreasonably pursue a fee for any candidate who has been recently contacted directly by the Client about the role, prior to submission by HCM.
4.4 Candidates presented to the Client remain a candidate of HCM’s for six months from the date introduced. This period is extended in specific circumstances especially where ongoing contact continues. If hired by the Client for any position, whether temporary or permanent, within this period, the normal fee schedule as set out in Clause 1. Introduction Fees and Clause 2. Fee Structure will apply.
4.5 All Candidate details are confidential. The passing of any information regarding the Candidate by the Client to another person, firm or corporation which results in an Engagement within six months of such information having been made available to the Client renders the Client liable to payment of HCM’s introduction fees, as set out in Clause 1.
4.6 After the 6 month period has expired, if the Candidate is not hired, HCM Australia requires that the information HCM has provided, including the candidate’s resume, be deleted or destroyed and not stored for future use. If the candidate is hired by your organisation, at the Client’s request, HCM will provide original copies of the resume along with reference checks for your records.
4.7 The Client agrees that if the Client, or a third party at the instigation of the Client, employs any Consultant employed by HCM within a period of 12 months after the Client has last had dealings with that Consultant, then the Client will pay a fee to HCM in accordance with the fee schedule as set out in Clause 1.
4.8 The Client agrees to keep confidential all the terms and conditions of this agreement.
5. Suitability of the Candidate
5.1 HCM will use its best endeavours to ensure the suitability of any Candidate introduced the Client and to provide the highest standards of recruitment service. HCM agrees to interview and pre-screen each Candidate before introduction to the Client. HCM will use its best endeavours to verify Employment History and Technical Certifications prior to introduction to the Client.
5.2 However, the Client acknowledges that HCM is reliant on information provided to it by the Candidate and, as such, gives no warranty for such suitability or for the accuracy of information obtained from either the Candidate or from any other person in connection with the Candidate. HCM shall not be liable under any circumstances for any loss, damage, expense or delay arising from or in any connected with the recruitment, engagement or use of the Candidate, from the failure to provide a Candidate for all or part of the period of the Engagement, or from the negligence, dishonesty, misconduct or lack of skill of the Candidate.
5.3 The Client accepts that the final recruitment decision rests with the Client and it is the Client’s sole responsibility to satisfy itself as to the candidate’s suitability for any engagement.
5.4 Any Candidate’s reference (or information relating to a reference) which HCM may provide during the recruitment process, or at any time thereafter, is provided without liability and in strict confidence for the Client’s information only. The Client agrees not to disclose such information to any other party.
6. Liability
6.1 The Client agrees to fully indemnify and hold HCM harmless against any and all claims, demands, damage, loss, payments, liability and expenses, (including legal fees and court costs on a full indemnity basis) of every nature and howsoever arising as a result of any:
- breach by the Client of the warranties and undertakings in this Agreement; or
- negligent act or omission of the Client, or any employee of the Client.
7. Jurisdiction
7.1 Wherever possible, the provisions of this Agreement may be read down so far as may be necessary to avoid the provisions being declared invalid, illegal or void.
7.2 If a provision of this Agreement is declared to be invalid, illegal or void, such provision will be severed from the Agreement and the remainder of the Agreement will remain in force.
7.3 This Agreement will not be rendered unenforceable by reason of the unenforceability of any of its terms.
8. Jurisdiction
8.1 The TOB shall be governed by and construed in accordance with New South Wales law, and all involved parties submit to the exclusive jurisdiction of the courts of New South Wales.
8.2 No variation may be made to the TOB without the written consent of a Director of HCM Australia.