TERMS OF BUSINESS

PARTIES

These Terms of Business, effective date being (Effective Date), (Terms of Business) between Thirdway Advisory Pty Ltd (ABN 60 688 412 151), of 111 Manson Road, Hendra, QLD, 4011 hereafter known as Thirdway, and known hereafter as Client, set out the terms and conditions on which Thirdway will provide the Recruitment Services described in clause 2 to the Client.

1. ACCEPTANCE OF TERMS AND CONDITIONS: 

1.1 These Terms of Business commence on the Effective Date, and are accepted by the Client upon the earlier of the Client:

• (a) returning a signed copy of the Terms of Business to Thirdway;
• (b) accepting a candidate on assignment from Thirdway; 
• (c) formally offering employment to a candidate introduced to the client by Thirdway; or
• (d) Interviewing or passing any Thirdway presented candidate to any other person or organisation.

1.2 These Terms of Business will remain in force until terminated by either party in accordance with clause 8.

2. RECRUITMENT SERVICES

2.1 From the Effective Date, Thirdway agrees to provide recruitment services to the Client, being the search for and identification of candidates for roles nominated by the Client from time to time (Recruitment Services).

2.2 Nothing in this Agreement constitutes a guarantee by Thirdway that it will successfully introduce a Candidate that is ultimately engaged by the Client as a result of the Recruitment Services.

3. FEES 

3.1 The Engagement Fee, calculated in accordance with the fees schedule contained at Schedule 1, is payable by the Client to Thirdway upon each engagement by the Client of Thirdway’s Recruitment Services for a particular role, and is non-refundable.

3.2 Should the Client engage a candidate introduced to it by Thirdway (Candidate) for any position whether as an employee or contractor of the Client (or a related entity of the Client, as that term is defined in section 9 of the Corporations Act 2001 (Cth) (Related Entity)) within (12) months of the initial introduction, the Client agrees to pay the placement fee to Thirdway at an amount calculated in accordance with the fees schedule contained at Schedule 1 to these Terms of Business (Placement Fee).

4. OBLIGATIONS OF THE CLIENT

4.1. The Client must:

• (a) notify Thirdway, in writing, if it has engaged a Candidate, as soon as practicable after the occurrence of the event;
• (b) keep Thirdway informed as to the progress of employment of any Candidate throughout any probationary period; and
• (c) refer all direct applicants and internal applicants to Thirdway.
  
  

4.2. If the Client defers a hiring decision in respect of a recruitment assignment performed by Thirdway and a Candidate is hired within 12 months of the date of the initial introduction by Thirdway or the first interview, whichever is later, the Client must pay to Thirdway the appropriate Placement Fee in accordance with these Terms of Business.

4.3 The Client must comply with all laws, including, but not limited to, state or federal industrial and employment laws, workers compensation laws and work health and safety laws (Workplace Laws). The Client undertakes and covenants in favour of Thirdway that it must take all necessary steps and procedures which it is obliged to take to ensure due compliance.

5. CONFIDENTIALITY AND PRIVACY

5.1 The Client must keep confidential the Confidential Information of a Candidate and may only disclose it to personnel of the Client who:

• (a) have a need to know (and only to the extent that each has a need to know); and
• (b) have been directed and have agreed to keep confidential the Confidential Information on terms consistent with these Terms of Business.
  
  

5.2 The Client agrees to comply with the Privacy Laws regarding Personal Information collected, used or disclosed by the Client in connection with these Terms of Business. The Client agrees not to use or disclose any Personal Information provided by Thirdway except for the purpose of receiving Thirdway’s services. The Client must ensure that before disclosing any Personal Information to Thirdway the Client is entitled to disclose that information under the Privacy Laws and has obtained any required consents or authorisations and/or provided any required notifications. If the Client becomes aware of any actual or alleged breach of the Privacy Laws concerning information disclosed by Thirdway to the Client or by the Client to Thirdway, then the Client must notify Thirdway immediately and comply with any reasonable directions of Thirdway with respect to such breach.

5.3 For the purposes of this clause 5:

• (a) Confidential Information means information and material relating to a party which comes into the possession or knowledge of the other party, whether orally, in writing or electronically, directly or indirectly, including strategic, corporate, information about the financial and labour needs of a party, and information relating to the business, clients, members, sales, knowhow and operations of a party that is marked as “confidential”, or information which the recipient knows or should reasonably know is confidential, which includes all Personal Information provided by Thirdway to the Client in relation to a Candidate; and
• (b) Personal Information means has the meaning given to that term in the Privacy Act 1988 (Cth) (and any equivalent term/s under other applicable privacy or data protection laws).
• (c) Privacy Laws means Privacy Act 1988 (Cth) and any other applicable privacy or data protection laws.
  

6. WARRANTIES BY THE CLIENT

6.1 The Client warrants that:

• (a) equal employment opportunity principles shall be adhered to by the Client in so far as no unlawful discrimination shall take place in job advertisements, job interviews, and the selection process;
• (b) the Candidate will not be required to work in a position inconsistent with the position for which the Candidate was recruited;
• (c) the Candidate will not be required to perform unpaid, trial work;
• (d) the Candidate will be properly remunerated at all times during the employment relationship, including for work completed during any trial period;
• (e) during a probationary period involving a Candidate, the Client will endeavour to provide counselling and guidance to improve performance if necessary. The Client acknowledges that the probationary period allows both the Client and the Candidate with a chance to assess each other and the position and decide whether to continue the relationship;
• (f) the Client, or any principal of the business of the Client, has not been found in breach of Workplace Laws and is not awaiting the outcome of any proceedings involving any alleged breach of Workplace Laws; and
• (g) the Client shall be solely liable for the costs of maintaining the Candidate, including, but not limited to, wages, leave entitlements, superannuation, and insurances.
  

7. INDEMNITY AND LIMITATION OF LIABILITY

7.1 The Client indemnifies Thirdway against all Losses that Thirdway may sustain or incur as a result, whether directly or indirectly, of any breach of these Terms of Business by the Client, and any other Claims arising out of, or in connection with, the operation of these Terms of Business, caused by any negligent act or omission or wilful misconduct of the Client or its Personnel, except to the extent that such Losses arose, or were caused by, the acts or omissions of Thirdway.

7.2 The Client agrees that none of Thirdway's officers, employees, agents or contractors shall be personally liable in respect of Thirdway's obligations or any liabilities under these Terms of Business. The Client expressly releases Thirdway's Personnel from all and any liability that may arise.

7.3 Thirdway indemnifies the Client against all Losses that the Client may sustain or incur as a result, whether directly or indirectly, of any breach of these Terms of Business by the Thirdway, and any other Claims arising out of, or in connection with, the operation of these Terms of Business, caused by any negligent act or omission or wilful misconduct of the Thirdway or its Personnel, except to the extent that such Losses arose, or were caused by, the acts or omissions of the Client.

7.4 For the purposes of this clause 7, Losses means all the losses, liabilities, damages and claims (including taxes), and all related costs and expenses (including any and all reasonable legal fees and reasonable costs of investigation, litigation, settlement, judgment, interest and penalties).

8. TERMINATION

8.1 Either party may terminate these Terms of Business if the other party commits any material breach of these Terms of Business that is not capable of being rectified or is capable of being rectified but has not been rectified within 10 Business Days after the defaulting party receives a notice in writing from the other party requiring it to do so.

8.2 Either party may terminate these Terms of Business by giving 1 months’ written notice to the other.

8.3 Termination of these Terms of Business does not relieve the Client of its obligation to pay Thirdway any outstanding Placement Fees due and payable pursuant to clause 3 of these Terms of Business, arising either before or after the termination.

9. FIXED TERM CONTRACTS

In the event that a Candidate is engaged by the Client for a fixed term, the Placement Fee is calculated in line with the fee schedule in Schedule 1, however:

9.1 In circumstances where a Thirdway presented Candidate is employed for a fixed term that is greater than 12 months Thirdway’s fee will be capped at the total remuneration for the initial 12 month period. 

9.2 In circumstances where a Thirdway presented Candidate is employed for a fixed term that is less than 12 months Thirdway’s fee will be pro-rata to the whole month of employment. With the minimum fee being 6 months. 

9.3 Any extension of a fixed term contract by the Client will incur additional charges at the rate set out in Schedule 1 up to a total combined value of the relevant fee percentage of 12 months’ remuneration.

9.4 In the event that the Client offers at any time during the first twelve (12) months of a fixed term contract to employ the Candidate on a permanent basis, the remainder of a full permanent Placement Fee will apply.

10. PAYMENT TERMS: 

10.1 All Placement Fees are payable within 14 days of the date of invoice.

10.2 Invoices are issued as follows:

• (a) Engagement Fee invoices issued on Thirdway’s acceptance of an engagement by the Client as described in clause 3.1; and
• (b) Placement Fee invoices issued on the date on which the Candidate signs acceptance of employment offer or contract..
  
  

10.3 Thirdway reserve the right to charge you interest calculated daily and compounded monthly at 2% above the base rate of Bank of Queensland at the date of payment and the costs of recovery.

11. GUARANTEE 

If a Candidate recruited by Thirdway leaves the Client’s organisation within the relevant guarantee period, as stipulated under the Fee Proposal contained in Schedule 1, Thirdway endeavours to replace the Candidate free of charge. If Thirdway are unsuccessful in securing a replacement, we will hold a credit note to the equivalent value of the Placement Fee, to be 

exercised across Thirdway within a 12 month period. This guarantee only applies when the original Placement Fee has been paid within the agreed upon payment terms, and Thirdway has been notified in writing within seven (7) days of the occurrence of a termination, providing the termination is for reasons other than retrenchment, change of job description or working conditions. 

For the avoidance of doubt there is no financial guarantee on a fixed term placement or the initial upfront portion of an engaged assignment. 

12. RE-ENGAGEMENT OF CANDIDATE 

Should the Client or any Related Entity or associated company of the Client subsequently re-engage the candidate, or the use of the candidate, within the period of twelve (12) calendar months from the date of termination of the Candidate, a full Placement Fee becomes payable by the Client (with no entitlement to a refund).

13. ADDITIONAL COSTS: 

The Client agrees to reimburse Thirdway for out-of-pocket expenses if previously agreed in writing. These may include print advertising, specific internet advertising, travel, flights, accommodation and teleconference or boardroom facilities.

15. MARKETING

Thirdway may in its sole discretion and expense use any reasonable means to advertise, promote or notify potential Candidates of the Client’s requirements.

16. FORCE MAJEURE

Under no circumstances shall Thirdway be liable for any loss of profit or consequential or other loss of whatever nature and Thirdway shall have no liability in contract or in tort for any injury, loss or expense in each case however attributable to the Services. If, despite the limitations contained herein or made elsewhere, Thirdway shall be held and found liable for damages or any loss of profit or consequential or other loss, the aggregate sum of compensation shall be limited to the actual damages proved and shall under no circumstances exceed the value of the Recruitment Services contracted to be provided by Thirdway.

17. DURATION OF THIS AGREEMENT

These terms and conditions are effective from the Effective Date until terminated in accordance with clause 8. In the event that they are not terminated or reviewed and additional work is carried out, these terms and conditions will remain in place until a new agreement is agreed and signed.

18. GENERAL PROVISIONS

18.1 These Terms of Business may be varied by agreement between the parties in writing.

18.2 Each party represents and warrants to the other party that it has the power and authority to enter into and perform these Terms of Business and to execute the obligations assumed or imposed upon it under these Terms of Business.

18.3 These Terms of Business are governed by the laws of Queensland, Australia. The parties irrevocably submit to the jurisdiction of the courts of Queensland, Australia.

18.4 Unenforceability of a provision of these Terms of Business does not affect the enforceability of any other provision. If any provision is void, voidable or unenforceable, it will be severed from these Terms of Business to the extent of the inconsistency.
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18.5 Nothing in these Terms of Business, or any circumstances associated with it or its performance, gives rise to any agency or partnership between Thirdway and the Client. Nothing in these Terms of Business, or any circumstances associated with it or its performance, gives rise to an employment relationship between Thirdway and any Candidate.

18.6 This agreement and the schedules form the entirety of the agreement between the parties.

19. GST

19.1 For the purpose of this clause, GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law, and the GST Law has the same meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

19.2 Any consideration or amount payable under this these Terms of Business is exclusive of GST.

19.3 GST is payable by the Client upon provision of a tax invoice by Thirdway.