Permanent and Fixed Term Placements
Fee for Service
- You will pay a fee to us where a Candidate is engaged in any capacity directly or indirectly to perform work with you (Placement Fee). The Placement Fee will unless otherwise agreed in writing between us and you, be determined based on the type of Placement the Candidate is engaged in as set out in these Terms of Business. GST will be added to each Placement Fee.
Permanent Placements
- The total Placement Fee payable by you for Permanent Placements will be a percentage based on the Candidate’s total Full Time Equivalent (FTE) annual remuneration. As at the date of this Agreement, the percentages are as set out in Item 1 of the Schedule.
- Permanent Fees will be invoiced as follows: In the case we are engaged in a Contingent capacity the total Placement Fee will be invoiced on the date the employment agreement for the Placement is signed by you and the candidate. In the case that we are engaged in a retained capacity the fees will instead be invoiced in stages based on the work undertaken at each stage as mutually agreed in writing between us and you. In which case, only the balance of the fee would be invoiced on the date the employment contract is signed, based on the final agreed FTE annual remuneration. All Permanent Fees will be payable within 14 days of the date of our invoice.
Fixed Term Placements
- The Placement Fee for Fixed Term Placements is a pro rata adjustment of the Placement Fee that would apply if the Placement was a Permanent Placement, with a minimum fee of six months. Where a Fixed Term Placement is extended (including by being made a Permanent Placement) from the agreed initial period, an additional pro rata Placement Fee will be charged for each additional month or part thereof up to a maximum of 12 months.
- You must immediately notify us if you decide to make an offer to any Candidate to:
- extend a Fixed Term Placement; or
- make any Assignment or Fixed Term Placement a Permanent Placement, and the terms of such offer.
Disbursements
- You will pay us for agreed disbursement expenses, including but not limited to:
- background and probity checks;
- advertising other than Standard Internet Advertising;
- project management or administrative costs
- a one-off payment or subscription for technology not already utilized by us;
- psychometric assessments; and
- room or equipment hire.
These expenses will be invoiced by us and paid by you regardless of the final outcome of the recruitment process. Subject to clause 36, no expenses will be incurred without your prior written consent.
Our Guarantee
- We guarantee:
- Permanent Placements for the period specified in Item 4 of the Schedule commencing on the start date of the Candidate’s Placement; and
- Fixed Term Placements for the periods specified in Item 5 of the Schedule commencing on the start date of the Candidate’s Placement.
- The guarantee becomes effective only in the following circumstances:
- you pay us the applicable Placement Fee within 14 days of the date of our invoice; and
- the job description and employment conditions during the Candidate’s employment with you are materially the same or similar to those described by you to us during the provision of the Services (i.e. there have not been substantial organisational or other changes in your business which are beyond our control, or you make the Candidate’s position redundant).
- If your employment of a Candidate is terminated for any reason, except for the exceptions in clause 13(b), we will provide a suitable replacement Candidate for the same role free of charge to you, as required, within 12 months of the Candidate’s termination. A maximum of one free of charge replacement will apply per role. For the avoidance of doubt, we do not offer a refund.
- If the replacement candidate’s FTE annual remuneration is higher than that of the original candidate, a fee is payable by you for the difference in fee in accordance with clause 7.
- Should a candidate withdraw their acceptance of an offer before their start date then this guarantee will also apply, subject to clause 13.
Offer
- You must give any Candidate to whom you make an offer of a Placement a reasonable period to accept or reject the offer.
Contractors and Temporary Assignments
Contractors
- We will, upon request by you, provide Temporary Employees and/or Independent Contractors (herein referred to jointly as Contractors) to perform work for your benefit. At all times a Temporary Employee is a PAYE employee of ours. An Independent Contractor is independently subcontracted through us.
Charge Rate
- The Charge Rate for a Contractor will be as agreed between us and you prior to each Assignment. GST will be added to each Charge Rate.
Confirmation of Assignment
- At the commencement or extension of each Assignment, we will provide you with a schedule confirming the Charge Rate, duration, and any special conditions agreed with you in relation to that Assignment (Confirmation of Assignment). Unless otherwise stated in the Confirmation of Assignment, these Terms of Business will apply to the Assignment.
- Subject to clause 26, any subsequent changes to the Assignment, role and/or Charge Rate will be agreed with you in advance.
- We may withdraw any Contractor on Assignment with you at any time if you do not comply with these Terms of Business.
Payment Terms
- Your authorised representative will be responsible for approving all timesheets of Contractors (which will be submitted online). We will not be liable for any errors contained within a Contractor’s timesheet that have been approved by you or your authorised representative.
- We will invoice you weekly unless otherwise agreed between the parties in writing. You agree to pay all invoices within seven days of the date of our invoice. All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
- In the event that any invoice remains outstanding for more than seven days from the due date for payment you irrevocably authorise us to withdraw the services of any Contractor who is the subject of the invoice (without removing your obligation to pay the Contractor) until the invoice and any applicable costs and interest have been paid.
On-Costs and Expenses
- You acknowledge and agree that:
- the Charge Rate for Temporary Employees is inclusive of On-costs; and
- in the event that any legislative or other unforeseen change results in the amount of any On-cost being increased or any new On-cost being introduced, we will provide you with notice and charge the additional amount to you.
- We will invoice you all expenses associated with Independent Contractors in addition to the Charge Rate (which for the avoidance of doubt will not include On-Costs).
Public Holidays and Overtime
- Any legislative obligations relating to payment by us to a Temporary Employee for a public holiday may be charged to you if the public holiday falls within 1 month of the assignment starting.
- If the Temporary Employee works on a public holiday and it was on a day the Temporary Employee would normally work, the Temporary Employee will also be entitled to an alternate day in lieu of the public holiday (or to be paid for that day if the relevant Assignment ends before the Temporary Employee has taken that day in lieu). Any applicable charges in line with the holidays act will be applied to you.
- Overtime payments may apply where instructed by you.
- All rates and conditions are subject to change when affected by a variation in relevant statutory charges. Invoice charges will be adjusted from the date of the affected variation.
Buy-outs
- If you, directly or indirectly through a third party engage a Contractor in any temporary, fixed term or permanent position at any time during the course of the Assignment, or within 12 months following termination of the most recent Assignment, these Terms of Business will apply, and you will be liable, subject to clause 34, to pay us a Permanent Placement Fee in accordance with clause 7.
- These Terms of Business will also apply, and you will be liable to pay to us a Permanent Placement Fee in accordance with clause 7 (but subject to clause 34), if a Contractor is referred by you or any of your associates to any other third party and is employed or contracted by that third party in any capacity, at any time during the course of the Assignment, or within 12 months following termination of the most recent Assignment.
- If the duration of the Assignment is more than 6 months, we will discount the amount of the Permanent Placement Fee in accordance with Item 3 of the Schedule.
Cancellations
- You must notify us in writing of any cancellation of an Assignment at least two Business Days before the Assignment is due to commence or, if this is not practicable, as soon as possible thereafter.
- If you notify us of a cancellation less than two Business Days before an Assignment is due to commence, we will charge you a fee equivalent to four hours of work at the appropriate hourly or daily Charge Rate plus any additional costs incurred (for example, fees payable to third parties for carrying out a background check on a Candidate).
- Changes to confirmed shifts or hours while a contractor is on Assignment must be communicated with a minimum of 24 hours’ notice.
- During an Assignment, if you notify us of a shift change or cancellation in less than 24 hours of its scheduled start time the contractor shall be entitled to receive compensation equal to the total hours they would have expected to work on that day if not for the cancellation. This compensation shall be calculated at the agreed Charge Rate for the Assignment.
- Any notice period given but not required to be worked by the Contractor under clauses 35 or 36 will be invoiced by us to you at the normal daily or hourly Charge Rate for the Contractor. Any special adjustments to clauses 35 or 36 will be noted in the Confirmation of Assignment.
Ending an Assignment Early
- You may end an Assignment early by notice to us in writing.
- Unless otherwise agreed in writing, you must give us not less than:
- two business days’ notice to end a Temporary Employee Assignment with an agreed Assignment duration of one month or less; and
- five business days’ notice to end an Temporary Employee Assignment with an agreed Assignment duration of more than one month.
- two weeks‘ notice to end an Independent Contractor assignment of any duration.
- Notwithstanding clause 39, you may end an Assignment:
- immediately in the event that a Contractor engages in serious misconduct (as agreed between both parties and notified to us in writing);
- You agree to consult with us before acting on any performance concerns and/or termination. All matters related to the performance evaluation and potential and actual termination of Contractors must be handled in accordance with applicable laws, regulations, and the terms of this agreement. Failure to adhere to this process may result in legal consequences for both parties.
- You agree that, where you fail to comply with clause 42(b) of this Agreement, we may apply to join you as a party to any legal proceedings connected to, or arising from, the Contractor’s termination and/or arising from your failure to conduct the process or termination in accordance with clause 42(b), including Employment Relations Authority proceedings.
- Any notice period given but not required to be worked by the Contractor will be invoiced by us to you at the normal daily or hourly Charge Rate for the Contractor.
- Any adjustments to the requirements of clauses 36 to 39 will be noted in the relevant Confirmation of Assignment.
Replacement
- We will endeavour to replace any Contractor you reasonably request to be replaced, but we do not guarantee the standard of work performed by any Contractor.
Responsibility
- You are responsible for supervising and managing the Contractor on a day-to-day basis and the Contractor’s performance in carrying out any Assignment. You acknowledge that we have no responsibility or liability for:
- the Contractor’s performance of such work; or
- any property (including laptops, phones or tablets) provided to the Contractor by you for the purposes of the Assignment.
- You will ensure that each Temporary Employee is adequately insured against any liability to third parties arising out of any act or omission of a Temporary Employee during an Assignment.
- You acknowledge and agree that:
- you are responsible for the protection of your own confidential information and intellectual property; and
- we will have no liability to you in the event that a claim arises in relation to your confidential information or intellectual property as a result of any act or omission by a Contractor.
Health and Safety
- You agree to provide a safe workplace for the Contractor and will comply with all relevant legislative and regulatory requirements, including but not limited to health and safety of workers in the workplace, discrimination, equal employment opportunity and employment legislation. You acknowledge that it is your responsibility to ensure that all safety measures have been taken to comply with the Health and Safety at Work Act 2015.
- Prior to any Contractor attending your premises to perform an Assignment you will notify and the Contractor:
- of all applicable health and safety rules and regulations that may apply at your premises and provide any necessary training for the Contractor to perform the Assignment; and
- promptly of any risk, safety issues or incidents that may arise or may have arisen at your premises that are relevant to the Assignment.
- Once a Contractor has started an Assignment, you will:
- instruct and supervise the Contractor in all necessary safe work practices; and
- promptly advise us as soon as you become aware of any accident, sickness or injury relating to the Contractor in respect of their performance of the Assignment. You will consult and seek authorisation from us if you wish the Contractor to perform work or work in an area alternate to the work or work area originally agreed to between us and you.
- You acknowledge that if we (acting reasonably) believe that the health and safety of a Contractor is unacceptably at risk by their carrying out an Assignment at your premises, we may withdraw the Contractor without releasing you from your obligation to pay the agreed Fee in relation to that Assignment. If the risk is not remedied within a reasonable time, we may terminate the Assignment by written notice to you.
Consulting and Supplemental Work
- We may from time to time agree to carry out consulting and/or supplemental work on your behalf. Any such work will be charged at either (as agreed):
- the fixed rate charged by us for the relevant consulting and/or supplemental work at that time; or
- the hourly rates charged by us for the relevant consulting and/or supplemental work at that time, which as at the date of this Agreement are as specified at Item 2 of the Schedule.
- Where the work is charged at an hourly rate, a Director or Associate Director will generally have oversight of the work, which may be delivered in conjunction with other staff, based on the level of expertise and experience required. Where practical, we will provide you with an estimate of the expected total cost.
- We will invoice you for consulting and supplemental work either at the completion of the work or otherwise as agreed. All such invoices will be payable within 14 days of the date of our invoice.
Liability and Compensation
Indemnity
- You indemnify us against any loss, damage, cost, expense or liability incurred or suffered by us (including under the Health and Safety at Work Act 2015, the Employment Relations Act 2000 or the Human Rights Act 1993) arising from any:
- act or omission by you in relation to any Candidate or Contractor engaged under this Agreement;
- act or omission of any Candidate or Contractor engaged by you;
- any breach by you of any relevant laws, regulations, or the terms of this Agreement; and
- any legal proceedings brought against us in relation to the above (including any personal grievance proceedings, Employment Relations Authority and/or Employment Court proceedings).
Our Liability
- Subject to clauses 56 to 59, we will compensate you against:
- loss of or damage to your property; and
- claims by any person against you in respect of personal injury or death,
arising out of or as a consequence of our negligence in carrying out our obligations under this Agreement.
Limitation of Liability
- We will not be liable for any claim, loss, damage or expense suffered by you resulting from the acts or omissions of a Contractor or from any delay or failure by us to refer a Contractor (or a particular Contractor) to you. Any liability we do have to compensate you under this Agreement will be reduced proportionally to the extent that an act or omission of you, your employees or agents, has contributed to the loss, damage, death or injury.
- Our liability to you under contract (including any indemnity), common law, tort, equity, under statute or in restitution is limited, where legally capable of being restricted, in aggregate to the Fees paid by you to us in the prior 6 months payable to us by you under this Agreement. Each party will make all reasonable attempts to mitigate any loss or damage suffered.
- Our liability to compensate you or any third party, where our Contractors are driving any vehicle owned or leased by you, will be limited to your insurance excess on the particular vehicle the Contractor is being asked to drive. Notwithstanding this, the maximum amount payable by us in relation to any damage caused by or to a vehicle driven by the Contractor will be a maximum of $1,500. You will indemnify us for any loss, cost or expense more than $1,500 incurred or suffered by us.
Consequential Loss
- Notwithstanding any other provision of these Terms of Business and to the fullest extent permitted by law, in no circumstances will either party be liable to the other party under contract (including any indemnity), common law, tort, equity, under statute or in restitution of any indirect or consequential losses, or loss of profit, revenue, contract, use, goodwill or reputation or financing costs or increase in operational costs.
General Terms
Survival
- Your liability under this Agreement is a continuing obligation, separate and independent from any other obligation in this Agreement and survives termination of this Agreement
Paramountcy
- In the event of there being any conflict between these Terms of Business and any written agreement between us and you by which we agree to provide you with Services or carry out work on your behalf, the terms of that written agreement will prevail.
Consumer Guarantees Act
- If you hold yourself out as acquiring the Services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 will not apply to this Agreement and are expressly excluded.
Default
- We reserve the right to charge a late payment fee of 1.5% per month on any outstanding invoice.
- You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment.
Services
- We may refuse, in our sole discretion, to provide or refer to you any Candidate or Contractor for any Placement or Assignment.
Legal Compliance
- You will comply with all relevant laws in relation to their use or employment of any Candidate for a Placement or any Contractor for an Assignment, including (but not limited to) the Employment Relations Act 2000 and the Health and Safety at Work Act 2015 (or any replacement legislation).
Confidentiality
- We will keep confidential all information disclosed to us by you that relates to your business and which you declare is confidential. All information in respect of a Candidate or Contractor is confidential information disclosed to you for the sole purpose of enabling you to determine whether the Candidate or Contractor is suitable for employment. You will keep such information confidential and will not use it for any other purpose.
- You will not contact directly any Candidate or Contractor referred to you by us in relation to any offer of employment or work with you, except with our prior written consent.
Privacy
- You acknowledge that you will receive Personal Information about Candidates and Contractors from us. You will only collect, use, process and store Personal Information in compliance with all applicable laws including the Privacy Act 2020 (or any replacement legislation). Without limiting the above, you will:
- at all times take reasonable measures to ensure that the Personal Information is adequately protected including from unauthorised access or use;
- securely destroy the Personal Information when you no longer have a lawful purpose for retaining the information;
- immediately notify us of any actual or suspected Privacy Breach in respect of the Personal Information, and co-operate with us fully in connection with the investigation and notification of a Privacy Breach;
- cooperate with us fully in the resolution of any complaint, access request, correction request, or response to a compliance notice or access direction received by either us or you in respect of the Personal Information;
- only disclose Personal Information to a third party if you have entered into a written agreement with that third party requiring the third party to protect the Personal Information to at least the standard required by the Privacy Act 2020;
- ensure that you (or any third party you transfer Personal Information to under clause 69(e)) do not transfer or store the Personal Information outside of New Zealand unless with our prior written consent; and
- on request, advise us where the Personal Information is currently being stored (including where any third parties you have disclosed Personal Information to under clause 69(e) are storing Personal Information).
- We will treat any Personal Information received by us in accordance with our current Privacy Policy, available at https://www.cultivate.co.nz/privacy.
Termination
- Unless agreed otherwise in writing, this Agreement may be terminated by either party providing 30 days’ written notice of termination to the other party. Where either party gives written notice of termination, we will be entitled to payment of all fees incurred in accordance with these Terms of Business up to the effective date of termination.
Entire Agreement
- This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties, negotiations and arrangements of any nature whatsoever, whether or not in writing, between the parties in relation to the subject matter of this Agreement.
Waiver
- Any failure or delay in exercising any right, power, privilege or remedy under this Agreement by us will not operate as a waiver. We will not be deemed to have waived any right, power, privilege or remedy unless such waiver is in writing, and such waiver will only apply to the particular transaction to which it refers.
Variation
- This Agreement may only be varied by the written agreement of the parties.
Force Majeure
- Neither party will be responsible to the other party for any delay in performance or non-performance of any obligation under this Agreement (except a payment obligation) due to Force Majeure, but the party relying on Force Majeure (Party) will promptly on the occurrence of any such cause notify the other party, stating that such cause has delayed or prevented its performance of its obligations under this Agreement and thereafter the Party must take all action within its power to comply with the terms of this Agreement as fully and promptly as possible.
Definitions
- Unless the context otherwise requires, defined terms in these Terms of Business have the following meanings:
Agreement means the agreement comprising:
- any written agreement between us and you by which we agree to provide you with Services or carry out work on your behalf; and
- these Terms of Business.
Assignment means our placement of a Contractor with you for a short term temporary or contract role.
Business Day means any day(other than a Saturday, Sunday, a day a public holiday is observed in Auckland, New Zealand or any day during the period of 24 December to 5 January(inclusive).
Candidate means any person referred by us to you for an Assignment or Placement.
Charge Rate means the total fee charged by us to you for a Contractor.
Contractor has the meaning given in clause 18.
Fixed Term Placement means a role for a Candidate to be employed by you for a fixed period of time.
Force Majeure means any cause beyond the reasonable control of a party, including any order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring goods, embargo, accident, emergency, outbreak of disease or epidemic or restrictions imposed to prevent or restrict an outbreak of disease or epidemic, or act of God, but excludes an industrial dispute involving any of its own employees or any reasonably foreseeable event to the extent that its effects could reasonably have been mitigated.
GST means goods and services tax levied under the Goods and Services Tax Act 1985, together with any sales or other tax relating to turnover or similar such tax which may be imposed subsequently.
Independent Contractor means a person we subcontract to you in accordance with clause 18.
On-Costs means any costs and expenses for which we are or may be liable as an employer, such as leave entitlements, KiwiSaver, ACC levies and PAYE.
Permanent Placement means a role for a Candidate to be employed by you as a permanent employee.
Personal Information has the meaning given to it in the Privacy Act 2020.
Placement means our placement of a Candidate with you on a permanent or fixed term basis.
Privacy Breach means any actual or attempted unauthorized or accidental access to, or disclosure, alteration, loss, or destruction of, Personal Information or any action that prevents you (orany applicable sub-contractor) from accessing Personal Information on a temporary or permanent basis.
Services means our searching, locating, identifying, and referring to you suitably skilled candidates for Placements and Assignments as required by you from time to time.
Standard Internet Advertising means internet advertisements on the major job sites.
Temporary Employee means a PAYE employee of ours who is contracted to you in accordance with clause 18.
Total Full Time Equivalent(FTE) Annual Remuneration means the annual total value of a Candidate’s base salary, commission, Kiwisaver, performance related bonus and all other benefits as agreed between you and the Candidate based on full time hours. A company car is valued at $18,000 for the purposes of these Terms of Business.
