Terms and Conditions

1. General Operation

These terms and conditions, together with a Proposal signed by the Customer and acknowledged in writing by the Company constitute the Contract for the delivery of Services to the Customer during the Term.

1.1 Definitions and Interpretations

Capitalised terms have the meanings specified in clause 22 of these terms and conditions.

1.2 Precedence of Documents

To the extent that there is any conflict or inconsistency between the documents comprising the Contract, the following order of priority applies to the extent of the inconsistency:

1. these terms and conditions;
2. schedules to these terms and conditions; then
3. the Proposal for Services signed by the Customer and acknowledged in writing by the Company.

2. Proposals

2.1 Proposal

1. A Proposal may be requested of the Company for Services at any time.
2. The Company may, at its discretion provide a Proposal for some or all of the Services requested.
3. Prices quoted by the Company are valid strictly for 14 days of the date of the Proposal.
4. The Customer may accept a Proposal by signing and returning to the Company within 14 days of the date of the Proposal.
5. The Company's written acknowledgement of receipt of a signed Proposal, together with these terms and conditions constitute the entire agreement of the parties in relation to the supply of Services.
6. The date of written acknowledgement by the Company in clause 2.1(e) is the Commencement Date of the Contract.
7. The Company is not bound by any conditions in a document prepared by the Customer, including any document attached by the Customer to a Proposal.

3. Provision of Services

3.1 Term

The Contract commences on the Commencement Date and continues until the earlier of:

1. termination;
2. expiry;
3. completion of all applicable Services,

in accordance with the Contract.

3.2 The Company's Obligations

The Company will provide the Services in accordance with the Contract.

3.3 The Customer's Obligations

1. The Customer must not within twelve (12) months of the termination or expiry of the Contract introduce Personnel supplied by the Company:
   1. to a competitor of the Company for the purpose of sourcing the competitor to provide services to the Customer; or
   2. hold out or represent Personnel supplied by the Company to be employees of the Customer or suitable to carry out any particular work.
2. The Customer agrees to notify us as soon as possible, of any Company Personnel or former Company Personnel who approach the Customer for the purpose of obtaining direct business for the respective individual or a third party in relation to the same or similar services provided by the Company:
   1. during the Term; and
   2. within twelve (12) months of termination or expiry of the Contract.
3. The Customer must not directly approach Personnel for the purpose of conducting an interview without the knowledge and consent of the Company.

4. Credit

4.1 Credit Application

1. The Company may, at its discretion request the Customer to complete a credit application.
2. Completion of a credit application does not infer, to any extent, the grant or guarantee of credit.
3. In granting credit the Company may, in its sole discretion impose any credit limit it considers appropriate. The Company will advise the Customer of the credit limit.
4. The Company may refuse to provide further Services if a credit limit is exceeded.
5. The Company reserves the right to refuse, suspend or withdraw credit facilities at any time without notice if the Customer is in breach of the Contract.
6. The Customer acknowledges that the Company may engage third-party providers to provide credit checks.
7. Subject to a credit facility being opened for the Customer, the Company may, at its discretion, offer credit terms to the Customer including but not limited to:
   1. payment due within 7 days from the date of an invoice;
   2. payment due within 14 days from the date of an invoice; or
   3. payment due within 30 days from the date of an invoice,
   and payment must be in a form acceptable to the Company and must not be made with any deduction or set-off.

5. Director(s)/Personal Guarantee

1. The Director(s) of the Customer (the Guarantor(s)) unconditionally guarantee the performance of the Customer with regards to the payment of all monies payable now and in future, from time to time, to the Company pursuant to the agreement between them.
2. If the Customer fails to make any payment to the Company or fails to perform any of its obligations under an agreement between them, the Guarantor will make all payments punctually and on time per the due date specified, to the Company as if they were party to the agreement.
3. The Guarantor indemnifies the Company against any losses, charges, liabilities, and expenses which the Company may incur in connection with any default by the Customer, including in respect of payment of Fees, costs, charges, a credit facility, or the enforcement of this Guarantee, including but not limited to the costs of collection and legal costs.
4. The Guarantor acknowledges that the Guarantor's obligations are continuing and are unaffected by:
   1. the grant of any extension, waiver, or indulgence to the Customer;
   2. variations to the credit facility or amount of credit available to the Customer;
   3. the Customer becoming subject to external administration;
   4. the refusal by the Company to supply further credit to the Customer; and
   5. the credit limit determined by the Company.

If there is more than one Guarantor, the terms of the guarantee are binding on all Guarantors jointly and severally.

The Company may exercise rights without first having exercised or exhausted all its legal rights against the Customer or any other guarantor.

6. Fees and Payment

6.1 Fees

1. Fees in a Proposal are:
   1. in AUD;
   2. exclusive of GST; and
   3. may be corrected in the event of an error.
2. The Customer must pay the Fees for the Services invoiced by the Company in accordance with these terms and conditions.
   1. Including all overtime, penalty rates and allowances in line with the schedule set out in the rates document accompanying this. Overtime and penalty rates are usually charged at 140% and 180% of the base hourly rate. Travel allowance is applicable every day that a Worker starts a shift on a construction site; and meal allowance is only applicable when the worker surpasses 9.5 hours on any given day. Unless stated otherwise in the rates agreement accompanying this document.
3. The Customer acknowledges and agrees hourly hire rates are subject to a 3.75% increase on a bi-annual basis in accordance with the relevant enterprise agreement.
4. If the Customer does not agree to the increase in the hourly hire rates the Customer may elect in writing to:
   1. Terminate the Contract;
   2. enter into a new Contract;
   3. negotiate an alternative with the Company.

6.2 Invoicing

The Company must issue to the Customer a valid tax invoice in respect of any Fees charged by the Company to the Customer for the provision of Services.

6.3 Payment

The Customer must pay any Fees invoiced by the Company:

1. by cash, EFT, direct debit or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the total Fees), or by any other method agreed to between the Customer and the Company in writing; and
2. by the due date specified in the invoice, or if no due date is specified, then by no later than 7 days from the date of the invoice (Invoice Due Date).

6.4 Interest and Levy for Late Payment

1. Where the Customer fails to pay any invoiced Fees by an Invoice Due Date, the Company shall be entitled to charge the Customer interest on any overdue amount at a rate of 8 percent (8%) per annum above the Australian Reserve Bank cash rate. Interest shall accrue daily and compound monthly.
2. Where the Customer fails to pay Fees by an Invoice Due Date, the Company incurs costs. The Parties agree and acknowledge that a genuine pre-estimate of the costs incurred by the Company (Liquidated Damages) is $386.40 per day until the Invoice is paid. The Customer agrees to pay the Liquidated Damages in compensation for, and not as a penalty, for the costs incurred by the Company in this clause.

7. GST

1. Terms in this clause have the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. The Company and the Customer acknowledge that Goods and Services Tax (GST) applies to the Services.
3. This clause 7 is not applicable for clients being supplied in New Zealand.

8. Default and Debts

8.1 Default

If the Customer defaults in payment of any invoice (or instalment) when due, the Customer indemnifies the Company from and against all costs and disbursements incurred by the Company in pursuing the debt, including all legal costs and the Company's collection agency costs.

8.2 Remedies

1. Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Customer and any of its other obligations under the Contract. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
2. Without prejudice to the Company's other remedies at law, all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
   1. an amount payable to the Company becomes overdue; or
   2. in the Company's reasonable opinion, the Customer will be unable to meet its payments when they become due; or
   3. the Customer becomes insolvent, convenes a meeting with its creditors, proposes or enters into an arrangement with its creditors,
   and the Company is entitled to cancel all or any part of a Service which remains unfulfilled.

9. Interest in Property

9.1 Security

As security for the payment of the Fees, and any other amounts payable by the Customer to the Company in relation to the provision of the Services, the Customer grants to the Company:

1. a mortgage over any interest the Customer has, jointly or severally, in any real property wherever such property is located;
2. a fixed and floating charge, or security interest, over any personal property, of the Customer, wherever such property is located, and regardless of whether such property is currently existing or acquired in the future; and/or
3. any entitlement of the Customer in any winding up of a company, or any other thing or matter.

9.2 Notice

The Customer agrees that, to the extent the Company must give the Customer notice a certain amount of time prior to doing anything to enforce the security interest, that notice period is waived, or if it cannot be waived by operation of any law, is reduced to the minimum amount permissible under the relevant law.

10. Security Interest

10.1 Registration and Enforcement

In consideration of the Company supplying Services to the Customer, the Customer agrees and acknowledges that the Company may:

1. register a caveat and/or a mortgage against the title to any real property that the Customer, jointly or severally, has an interest in, with the relevant land titles office;
2. register a security interest in any personal property on the Personal Property Securities Register;
3. register any interest granted by the Customer to us on any applicable register whatsoever; and/or
4. exercise any enforcement power granted to us by any relevant law in relation to a security interest including the appointment of a receiver.

10.2 Notice

The Customer agrees that, to the extent that we must give notice a certain amount of time prior to doing anything to enforce a security interest, that notice period is waived, or if it cannot be waived by operation of any law, is reduced to the minimum amount permissible under the relevant Law.

11. Consumer Guarantee

In respect of a breach of a Consumer Guarantee under the Australian Consumer Law, without limiting the Customer's statutory rights, the Company may offer the Customer one or more of the following:

1. re-performance of the Services; or
2. pay the Customer the cost of re-acquiring the Services.

12. Intellectual Property

1. Each party retains all rights, titles, and interests in their respective Background IP.
2. The Company grants the Customer a limited, non-exclusive, non-transferrable and non-sublicensable licence to use the Company's IP for the sole purpose of the Customer deriving the benefit of the Services.
3. The Customer must not copy, publish, distribute, sell, resell, transfer, assign, licence, modify, alter, or reverse engineer the Company's Intellectual Property, or use it to create any derivative works.

13. Limitation of Liability

13.1 Limitation of Liability

The Company's (including any of its Related Entities') Liability to the Customer arising under or in connection with the Contract is limited to the lesser of:

1. the Fees paid by the Customer for the Services; or
2. the Fees payable by the Customer for the Services (if no fees yet paid).

13.2 Exclusion of Consequential Loss

Neither Party shall be liable to each other Party for any Consequential Loss.

13.3 Release

To the maximum extent permitted by law, the Company has no Liability for, and the Customer releases the Company from Liability, or in connection with:

1. acts or omissions of the Customer or the Customer's personnel;
2. a Candidate.

13.4 No Exclusions to Statutory Rights

1. The Company acknowledges that the Customer has statutory rights under the Laws, including, without limitations, the rights contained in the Australian Consumer Law.
2. Nothing in the Contract seeks to limit any right or remedy, or exclude Liability, as may be available for or relied upon by the Customer under the Laws, including the Australian Consumer Law, which cannot be limited.

14. Termination

14.1 Mutual Termination

The Customer and the Company may mutually agree in writing to terminate the Contract. Any such termination will be subject to the terms of that agreement.

14.2 Termination with Notice

Either Party may terminate the Contract by giving the other party fourteen (14) days' written notice.

14.3 Termination for Default

A Party (Non-Breaching Party) may immediately terminate the Contract if the other Party (Breaching Party):

1. has breached the Contract and the breach:
   1. is not remedied by the Breaching Party within fifteen (15) Business Days' notice given by the Non-Breaching Party to the Breaching Party to remedy the Breach; or
   2. is not capable to be remedied;
   3. is of such seriousness or materiality that termination is warranted, having regard to the nature, extent, and impact of the breach;
2. experiences an Insolvency Event;
3. has a change of control in the Customer as defined by the Corporations Act 2001 (Cth).

14.4 Effect of Termination

Upon termination of the Contract:

1. the Company will cease providing any further Services to the Customer under the Contract;
2. the Customer must pay to the Company all Fees and costs payable by the Customer to the Company including for Services which have been provided and not yet invoiced;
3. each Party must promptly return any property, including Confidential Information, in its possession owned or procured by the other Party; and
4. each Party must cooperate with each other Party in good faith with respect to promptly effecting the following:
   1. the assignment or licensing of any Intellectual Property in favour of the relevant Party pursuant to the Contract;
   2. the return or disposal of any Confidential Information in any Party's possession or control pursuant to each Party's obligations; and
   3. complying with any other obligations due upon the Party respectively in connection with the termination of the Contract.

14.5 Survival of Terms

Terms which are capable or expressed as:

1. having effect after the Contract ends or by their nature intended to survive termination; or
2. imposing an obligation on or granting a right to a person or entity after they cease to be a Party to the Contract,

continue to have full force after the termination of the Contract, including clauses in relation to:

1. protection of Confidential Information;
2. payment of outstanding Fees;
3. warranties and indemnities; and
4. obligations to make good or return property.

15. Confidential Information

Each party must ensure that Confidential Information is not disclosed by the party, except to the extent that:

1. the other party provides its prior written consent to the disclosure;
2. the disclosure is required by law;
3. the disclosure is to a legal adviser, insurer, financier, auditor, or accountant of a party to the extent required to enable them to perform those roles; or
4. the disclosure is to a related body corporate for internal management purposes.

16. Privacy

1. The Customer must comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if the Customer were an “APP entity” as defined in the Privacy Act 1988 (Cth)) and any other applicable legislation or privacy guidelines that may apply.
2. The Company may provide the Customer with access to Candidates' personal information in the provision of the Services. The Customer must only use such information in accordance with instructions and for the sole purpose of receiving the Services, and to keep the information safe and secure at all times.

17. Dispute Resolution

17.1 Disputes

1. The dispute resolution process under this clause 17 does not apply to debt recovery and the enforcement of unpaid monies.
2. Nothing in this clause 17 prevents a Party from applying for an urgent injunctive, declaratory, or other interlocutory or equitable relief before an appropriate court.

17.2 Dispute Resolution Processes

1. If any Party believes that there is a Dispute, that Party must notify the other Party to the Dispute in writing, specifying the nature and substance of the Dispute (Dispute Notice).
2. Upon an issue of a Dispute Notice pursuant to clause 17.2(a), the Parties must respectively appoint a senior representative to resolve the Dispute by good faith negotiations within 7 days.

17.3 Continuity of Service Provision

The Parties agree that the obligations of the Parties in the Contract continue notwithstanding the existence of any Dispute.

18. Force Majeure

18.1 Exclusion

Force majeure relief in this clause 18 does not apply to any obligation relating to:

1. the payment of monies; and
2. the protection of Confidential Information.

18.2 Force Majeure

On the occurrence of a Force Majeure Event:

1. the affected Party must, as soon as reasonably practicable, notify the other Party of any delay or failure in the performance of any obligation under the Contract as a result of the Force Majeure Event;
2. the affected Party must use all reasonable endeavours to mitigate the effects of the Force Majeure Event and to resume the performance of their obligations under the Contract as soon as reasonably practicable; and
3. any delivery date shall be extended to the extent of any delay caused by the Force Majeure Event.

18.3 No Liability

Neither Party shall be liable to the other Party for any delay or failure in the performance of any obligation under the Contract as a result of a Force Majeure Event.

19. Notice

1. A notice or communication is only effective if it is:
   1. in writing, signed by or on behalf of the person giving it (including an electronic signature or statement);
   2. addressed to the person to whom it is to be given; and
   3. given as follows:
      1. delivered by hand to that person's address;
      2. sent to that person's address by prepaid mail;
      3. sent by email to that person's email address.
2. A notice, consent or communication given under this clause is deemed given and received:
   1. if delivered by hand to the recipient's address, when left at the person's address;
   2. if delivered by mail, three (3) Business Days after posting; or
   3. if sent by email, at the time and on the day shown in the sender's delivery report,
   but if the notice is deemed to be received on a day which is not a Business Day or after 5pm, it is deemed to be received at 9am on the next Business Day.
3. A Party's address for notice is set out in a Proposal, or as otherwise notified by that Party in writing to the other Party from time to time.

20. Related Entity Guarantee

If the Customer has one or more Related Entities then within 14 days of the Commencement Date the Customer must deliver a performance guarantee from at least one of the Customer's Related Entities in a form acceptable to the Company and which guarantees payment and performance of the Customer's obligations in the Contract.

A failure by the Customer to deliver the performance guarantee in accordance with this clause is grounds for immediate termination of the agreement by the Company.

21. General

21.1 Variation

The Contract may only be varied by written agreement between the Parties.

21.2 General Representations

Each Party represents and warrants to each other Party that:

1. it has all necessary powers, capacity, and consents necessary to enter into the Contract; and
2. it has not experienced an Insolvency Event and is not aware of any facts or circumstances which may lead to it experiencing an Insolvency Event.

21.3 Assignment

A Party may only assign its rights under the Contract with the written consent of all Parties.

21.4 No Merger

The rights and obligations of the Parties under the Contract do not merge on completion of any transaction contemplated by the Contract.

21.5 Rights Cumulative

The rights, powers and remedies of each Party under the Contract are cumulative and additional to, and do not prevent, the exercise of any rights, powers, or remedies available to that Party at Law.

21.6 No Waiver

1. The failure of a Party to require full or partial performance of a provision of the Contract does not affect the right of that Party to require performance subsequently.
2. A right under the Contract may only be waived in writing signed by the Party granting the waiver, and is effective only to the extent specifically set out in that waiver.

21.7 Severability

A provision or part of a provision in the Contract that is illegal or unenforceable:

1. must be read down to the extent necessary to remove the cause of the illegality or unenforceability; or
2. if clause 21.7(a) is not possible, that provision or part thereof may be severed to the extent necessary to remove the illegality or unenforceability such that the remaining provisions shall remain fully effective in accordance with its terms.

21.8 Governing Law and Jurisdiction

The Contract is governed by the laws of New South Wales, Australia.

21.9 Entire Agreement

The Contract embodies the entire agreement between the Parties and supersedes all previous agreements, warranties, quotes or guarantees about its subject matter and any agreements collateral to those agreements.

22. Definitions

In these terms and conditions unless the context otherwise requires:

23. Interpretation

23.1 Rules of Interpretation

In these terms and conditions, the following rules of interpretation apply:

1. headings are for convenience only and do not affect the interpretation of the Contract;
2. the singular includes the plural and vice versa;
3. words that are gender neutral or gender specific include each gender;
4. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
5. a monetary amount is in Australian dollars;
6. the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are intended to be, interpreted as words of limitation;
7. a reference to:
   1. a person includes a natural person, partnership, joint venture, government agency, association, corporation, or other body corporate;
   2. a thing includes a part of that thing;
   3. a party includes its successors and permitted assigns;
   4. a document includes all amendments or supplements to that document;
8. a clause, term, party, schedule, or attachment is a reference to a clause or term of, or party, schedule, or attachment to the Contract;
9. no provision will be interpreted to the disadvantage of a particular Party merely because that Party prepared the provision or would benefit under it;
10. when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; and
11. the relevant time of day is: for the purposes of giving or receiving notices the time of day where a party receiving a notice is located; and the time of day in the place the obligation is located.

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