TERMS OF TRADE FOR CANDIDATES
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1. Definitions
1.1 “Agent” means Miriam Boyens, her successors and assigns or any person acting on behalf of and with her authority.
1.2 “Candidate” or “you" or “yours” means the person/s requesting the Agent to provide the Services.
1.3 “Employer” shall mean any individual or entity who has engaged the Agent to provide recommendations of suitable Candidates.
1.4 “Fee” shall mean the price payable for the Services (which includes any additional charges and disbursements associated with the Services) as agreed between the Agent and the Candidate in accordance with clause 5 of this contract.
1.5 “GST” means “GST” means Goods and Services Tax arising pursuant to the Goods and Services Tax Act 1985 and includes any tax charged in substitution for that tax.
1.6 “Services” means the recruitment of Candidates and matching of Candidates to suitable Employers and any other work undertaken or services provided by the Agent to or for or on behalf of the Candidate.
2. Acceptance
2.1 The Candidate is deemed to have accepted and is immediately bound, jointly and severally, by these terms and conditions if the Candidate requests or accepts Services provided by the Agent.
2.2 These terms and conditions may only be amended with the Agent’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Candidate and the Agent.
3. Provision of the Services
3.1 The Agent undertakes to use its best endeavours to provide reliable Services, and to assess and recommend Candidates to suitable Employers based on the Candidate’s attributes. The Candidate agrees to clearly instruct the Agent of their attributes and experience and any requirements the Agent should consider in their assessment of suitability of Candidates for Employers, and to notify the Agent immediately if there is any change in those matters.
3.2 Upon completion of its initial screening process including an interview with the Candidate via video call, and provided that the Agent considers the Candidate to be suitable, the Agent will seek to match the Candidate with a suitable Employer. Once an introduction is made, the Candidate must liaise directly with the Employer to finalise their employment arrangements, including their employment contract. The Employer is solely responsible for all aspects of the Candidate’s employment, including, without limitation, remuneration and employment conditions. The Candidate agrees to comply with the Employer’s requirements and policies.
3.3 The Candidate warrants that they have the legal right to work in New Zealand or Australia.
4. Terms and Conditions of Employment
4.1 The Candidate must commit to a minimum of three (3) months work for the Employer. Should the Candidate leave their employment earlier than the expiry of three (3) months from their start date, they are required to suggest suitable replacement Candidates to the Employer and the Agent, or to pay the Fee to the Agent to find a replacement Candidate.
4.2 Should the Candidate leave their employment due to factors outside of their control, the Agent may, at her sole discretion, attempt to match the Candidate with a new Employer, however the Agent gives no guarantees and shall have no liability to the Candidate in this respect.
4.3 Should any act or omission of the Candidate result in the Candidate being unable to fulfil their duties in the course of their employment with the Employer, including, but not limited to, being disqualified from driving for any reason the Candidate is required to pay to the Agent the Fee for the Agent to find a new Candidate for the Employer.
5. Fee and Payment
5.1 Unless otherwise agreed the Fee shall be a one-off Fee as quoted to the Candidate for each placement with an Employer.
5.2 The Agent reserves the right to change the Fee if any material change to the specifications of the Services is requested which requires the Agent to perform additional or varied work. This includes cancellation in clauses 6.1 and 6.2.
5.3 The Candidate shall be liable to pay the Agent the appropriate Fee on completion of the initial screening process as described in clause 3.2.
5.4 The Candidate shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Candidate by the Agent nor to withhold payment of any invoice because part of that invoice is in dispute.
5.5 In the event that the Agent is unable to match the Candidate with a suitable Employer within six (6) months, the Agent will refund the Fee to the Candidate.
6. Cancellation
6.1 The Agent may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services are provided by giving written notice to the Candidate. On giving such notice the Agent shall repay to the Candidate any sums paid in respect of the Fee. The Agent shall not be liable for any loss or damage whatsoever arising from such cancellation.
6.2 Service Fee: In the event that the Candidate cancels provision of the Services the Agent shall not be required to repay the Fee. If a refund of the placement fee is applicable under clause 5.5, an administrative fee will be deducted from the refund before processing. In the event that the Candidate cancels their application after a job has been secured for them, the administrative fee applies in addition to the Fee. This administrative fee is payable as per the issued invoice.
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7. Default and Consequences of Default
7.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) plus GST per calendar month (and at the Agent’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
7.2 Without prejudice to any other remedies the Agent may have, if at any time the Candidate is in breach of any obligation (including those relating to payment) under these terms and conditions the Agent may suspend or terminate the provision of Services to the Candidate and no refund will be given. The Agent will not be liable to the Candidate for any loss or damage the Candidate suffers because the Agent has exercised its rights under this clause.
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8. Limitation of Liability
8.1 The Agent endeavours to provide accurate information on Employers and their operations. However, these details are based on information made available by Employers. Therefore, no responsibility can be accepted by the Agent for errors, omissions, or incorrect conclusions.
8.2 Correctness of information: the Agent shall use reasonable endeavours to ensure all information provided to the Candidate is correct. No guarantee is given by the Agent as to the correctness of such information and the Agent shall not be liable to the Candidate for the provision of any incorrect or inaccurate information.
8.3 In no circumstances shall the Agent be liable for any personal injury resulting in injury or death, loss and/or damage or expense arising out of or caused by the Candidate undertaking its role as an employee of the Employer or otherwise. The Candidate must have their own insurance which is suitable and sufficient to cover them and their possessions while in New Zealand.
8.4 The Candidate hereby disclaims any right to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Candidate by the Agent.
8.5 The Agent shall not be liable in relation to any issues regarding working conditions, harassment or discrimination allegations, or any other issue arising out of the workplace managed by the Employer.
8.6 The Agent will not be liable for any indirect or consequential loss of any kind, including, without limitation, loss of income or profits.
8.7 If the Agent is found to be liable notwithstanding any limitation or exclusion in these Terms, except where expressly stated otherwise in these Terms and subject to any mandatorily applicable law to the contrary, the liability of the Agent shall be limited to damages which under no circumstances shall exceed the Fee.
9.Privacy Act 1993
9.1 The Candidate authorises the Agent to
a. access, collect, retain, and use any information about the Candidate from any source the Agent considers appropriate, to be used for the purpose of providing the Services to the Candidate and for the Agent’s own marketing purposes.
b. disclose information about the Candidate, whether collected by the Agent from the Candidate directly or obtained by the Agent from any other source, to Employers for the purpose of providing the Services.
9.2 The Candidate shall have the right to request the Agent for a copy of the information about the Candidate retained by the Agent and the right to request the Agent to correct any incorrect information about the Candidate held by the Agent.
10. Confidentiality
10.1 All information supplied to the Candidate in the course of the provision of Services, including but not limited to information contained in the Agent’s information guide “Leitfaden” and information regarding Employers, whether written or verbal, is supplied to the Candidate in confidence and is not to be disclosed to any other party without the express written consent of the Agent.
10.2 The introduction to the Employer is strictly confidential between the Candidate and the Agent. The Candidate shall not disclose any information, including but not limited to contact details of the Employer and particulars of employment, to any other person and shall not under any circumstances act or purport to act in an introductory role between the Employer and any other person at any time now or in the future Should a Candidate breach this clause they shall be required to pay to the Agent the Fee for each person they introduce.
10.3 All information will be subject to the provisions of the Privacy Act 1993, and its variations as determined.
11. General
11.1 Assignment: You may not transfer any right or benefit under these Terms without the prior written consent of the Agent. The Agent may transfer its rights and obligations under these Terms by notifying you in writing.
11.2 Typographical errors: the Agent reserves the right to correct any typographical errors or clerical errors in any prices quoted or contained in an order or quotation.
11.3 Enforcement: You will pay on demand all costs (including legal costs on a solicitor/client basis) incurred by the Agent in connection with any default by you or enforcement action taken by the Agent.
11.4 Disputes:
a. Any dispute between you and the Agent will be discussed between both parties in the spirit of goodwill. In the event that the dispute cannot be resolved, the parties will refer the dispute to the Disputes Tribunal if the value of the dispute is less than $30,000.00. In the event the dispute exceeds $30,000.00, the parties may agree to refer the matter to mediation. If the parties cannot agree on a mediator to hear the dispute, the parties will request that the President of the New Zealand Law Society or their nominee appoint a mediator.
b. The parties must act in good faith and cooperate with each other to try to quickly resolve any dispute.
11.5 Severability: The failure by the Agent to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Agent’s right to subsequently enforce that provision. If any part of these Terms is illegal, unenforceable, or invalid, the remaining terms are not affected.
11.6 Variation: The Agent may in its absolute discretion change these Terms at any time by publication distributed by mail or email to the last postal or email address that you provided. The change will take effect from the time specified.
11.7 Legislation: A reference to any legislation in these Terms includes a reference to any amended or substitute legislation and any regulations enacted under that legislation.
11.8 Force Majeure: Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, dire, flood, storm, or other event beyond the reasonable control of either party.
11.9 Candidate Warranty: The Candidate warrants that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent, and that this agreement creates binding and valid legal obligations on them.
11.10 Governing Law: This Agreement is subject to, governed by and interpreted in accordance with New Zealand law and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute in relation to the Agreement.
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