Terms of Business
Role Ltd (Role) provides hour rate, fixed term contract, permanent, and executive, search level recruitment services to you (Client) on the following terms and conditions.
- To assist with successful placements, you must fully complete with Role a Success Profile (Role’s version of a job brief), before Role is obliged to take steps to identify suitable Candidates.
- Information for Permanent Recruitment can be found in clause 6.1 (a-c) and Fee Schedule A, and you can find a summary of the key information following: Role will invoice the Client the recruitment fee on the day in which the Candidate accepts the role. The fee will be payable 14 days from the invoice date. If you do not pay when due, then the Replacement Guarantee will be null and void and Role may charge default interest on amounts owing.
- If an Introduced Candidate terminates their permanent engagement with you within 90 days of their commencement (Guarantee Period), Role will take steps to identify a replacement Candidate or provide you with a credit amounting to the fee of the original placement (Replacement Guarantee), provided you notify Role promptly where you become aware of issues, promptly notify Role of termination, provided the Success Profile did not misrepresent the characteristics and requirements of a successful Candidate, and provided that the replacement services and/or credit must be used within 6 weeks of the termination. The Replacement Guarantee will also apply, with a modified Guarantee Period, to fixed term engagements of greater than 3 months.
1 WHERE THESE TERMS APPLY
1.1 Application: These general terms (General Terms) apply to all services provided to Client by Role (Services) and are incorporated into any agreement each an Agreement, including these General Terms) with the Client. By instructing Role (in any manner whatsoever), the Client accepts these General Terms.
1.2 Interpretation: Any reference to Client in the context of the engagement of any Candidate will include reference to any related party of the Client who may engage the Candidate.
1.3 Precedence: Each Agreement comprises the entire agreement between the parties and prevails over any other terms of business put forward by the Client or earlier arrangements. In the event of any inconsistency between the various parts of an Agreement, the following order of priority will apply:
(a) First, any specific terms or contract for Services;
(b) Then, the Success Profile;
(c) Then, these General Terms.
2 ROLE’S OBLIGATIONS
2.1 Provision of Services: Role will use all reasonable endeavours to introduce potentially suitable persons for engagement by the Client (each a Candidate) in response to Client instructions accepted by Role and the Success Profile, using professional standards of diligence, care and attention reasonably and ordinarily be expected of persons engaged in the same type of undertaking in similar circumstances.
2.2 Introduction: A person will be Introduced to the Client as a Candidate if:
(a) Role provides the Client with (whether verbally or in writing or by digital or electronic or any other means) of a curriculum vitæ or information which identifies that person;
(b) The Client interviews (whether in person, by telephone, or by other means) a person identified by Role as a potentially suitable Candidate following the Client’s instruction to Role to search for candidates; or
(c) A person identified by Role as a potentially suitable Candidate following the Client’s instruction to Role to search for candidates provides services to the Client.
2.3 Timelines: Role will use reasonable endeavours to provide the Services in accordance with any timelines or milestones agreed in writing by the parties but will not be liable for any loss or damage arising from any delay, however caused.
3 CLIENT’S OBLIGATIONS
3.1 Instruction: The Client must accurately complete the Success Profile and provide detailed and accurate information in respect of the Client’s requirements for Candidates (including, without limitation, as to required qualifications, skills, and experience) so as to provide Role sufficient information to identify suitable Candidates. Any decision to proceed with an instruction notwithstanding that the Client has not fully completed the Success Profile to Role’s satisfaction will be at Role’s sole discretion.
3.2 Communications: Where Role introduces a Candidate to the Client, all communication with the Candidate shall be through Role. The Client shall immediately notify Role of:
(a) Any interview offered to the Candidate by the Client;
(b) The terms of any offer of engagement made to the Candidate by the Client;
(c) The acceptance of an offer of engagement by the Candidate; and
(d) The total Annual Salary Package (ASP) (being the aggregate of salary, allowances, and 50% of any “at risk” component including bonus and/or commission, agreed with the Candidate where they accept an engagement, together with any documentary evidence as requested by Role.
(a) For Permanent Recruitment (Full Service): Where an Introduced Candidate is engaged by the Client (whether or not in a different capacity or on a different basis than initially contemplated) within 6 months of the Introduction, the applicable Fee (as specified in the Fee Schedule) is payable by the Client.
(b) The Client acknowledges that where an Introduced Candidate is engaged by the Client, the applicable Fee remains payable by the Client irrespective of whether the Client contends it is liable for fee(s) to a third party in respect of the same Candidate.
3.4 Disbursements: In addition to the Fee, the Client must pay any other expenses incurred by Role in undertaking the Services, for example (without limitation) psychometric testing, undertaking credit checks, criminal checks or other such investigations, medical checks, and so on, which will be invoiced at cost generally with the balance Fee invoice and payable at the time the balance of the Fee is due.
3.5 Advertising: Without limiting the generality of clause 3.4, all customised or campaign advertising will be subject to prior approval by the Client. The costs will be payable by the Client at cost and will be invoiced on final approval of the advertising and payable within 7 days of the date of invoice.
3.6 Updates: The Client must promptly notify Role if at any time during the Guarantee Period it has concerns about the engagement of a Candidate (whether or not it has determined to take any action in respect of the same), and must respond to Role’s queries from time to time (anticipated, but not limited to, check-ins during 1st week, 1st month, and 2nd month) regarding the same.
3.7 Termination: If the Client terminates an Introduced Candidate during or at the conclusion of the 90 day period the Client must provide Role with written notice of the termination within 2 working days.
4.1 Assessment: The Client’s engagement or offer to engage a Candidate are entirely at the Client’s own risk. The Client must satisfy itself as to the competence, qualifications and integrity of any Candidates which it offers to engage, and to assess their suitability for the position. Role will exercise reasonable skill and care in the selection of Candidates, but will not be liable for the negligence, dishonesty, misconduct or lack of skill of any Candidate, or for the failure of a Candidate to perform or to comply with their terms of engagement. Role will not be liable to the Client for ensuring the accuracy of any Candidate’s medical history, present state of health, previous terms and conditions of employment, names and addresses of previous employers, periods of employment, circumstances in which previous employment has been terminated, criminal convictions, personal details, ability to work in New Zealand, visas, work permits, qualifications, or education generally. Role makes no representations and gives no warranties (except to the extent required by law) express or implied as to the suitability of a Candidate for a particular position.
4.2 Permits: The Client is responsible for obtaining all work or other permits or visas, or other licenses or approvals, required by law in relation to any specific Candidate.
4.3 Employer Obligations: The Client is responsible for meeting employer obligations required by law in respect of Candidates they engage, including payment of superannuation contributions and fringe benefit tax, as applicable.
5.1 Replacement Guarantee – Permanent: If an Introduced Candidate terminates their permanent engagement with you within 90 days of their commencement (Guarantee Period), Role will take steps to identify a replacement Candidate or provide you with a credit amounting to the fee of the original placement (Replacement Guarantee), provided:
(a) The Client paid all amounts owing to Role in connection with the terminated Candidate on or before the relevant due date for payment;
(b) The Success Profile was fully completed by the Client and did not misrepresent the characteristics and requirements of a successful Candidate;
(c) The Client promptly notified Role upon becoming aware of issues with the terminated Candidate (whether or not termination was considered likely at that stage);
(d) The Client promptly notified Role of the Introduced Candidate’s termination (and in any event no later than 2 working days of termination);
(e) The termination did not arise in connection with redundancy, merger, restructuring, change of management or job specification, or Client relocation;
(f) The termination was not the result of the Client checking the Candidate’s references after the Candidate commenced the engagement;
(g) The Candidate had not been previously engaged by the Client;
(h) The Client fully completes a further Success Profile for the replacement Candidate;
(i) Role is provided with exclusivity to find a replacement Candidate, and not less than 3 weeks to provide suitable Candidates;
(j) The Client does not independently advertise or otherwise find a replacement candidate without Role’s assistance;
(k) The replacement services and/or credit are used within 6 weeks of the termination; and
(l) The Replacement Guarantee applies strictly to the provision of a single replacement Candidate for any original Candidate, and will not apply again to any person replacing the original Candidate.
5.2 Limitation: To the extent any of the matters in clauses 5.1(a)-(l) are not complied with, the Replacement Guarantee will cease to apply and Role will have no liability in respect of any replacement services.
5.3 Replacement Guarantee – Fixed Term Contracts: The Replacement Guarantee (and its limitations) will also apply to fixed term engagements of greater than 3 months, provided that the Guarantee Period will be:
(a) 3 months and less: No Replacement Guarantee;
(b) 3 – 6 months: 2 week Guarantee Period;
(c) 6 – 12 months: 4 week Guarantee Period.
5.4 Hourly Rate Contracts: There will be no Replacement Guarantee in respect of Introduced Candidates engaged as hourly rate contractors.
5.5 Difference in Annual Salary Package: If a replacement Candidate is provided at a higher total Annual Salary Package, an adjustment of the applicable initial Introduction fee will be made and invoiced to the Client accordingly.
6.1 Invoices and Payment:
(a) For Permanent Recruitment: Role will invoice 100% of the Fee (based on estimated Annual Salary Package) on the date on which the Candidate accepts the role, and that amount is due within 14 days of the date of that invoice.
(b) For Fixed Term Recruitment: Fixed term placements of less than six months are charged at 65% of the standard fee. If a fixed term appointment continues or is extended into a different role after six month, the remaining 35% of the fee is payable. Fixed term placements of six months and above are calculated pro rata from 50% of the standard fee for a 6-month contract upwards to 100% of the standard fee for a full 12-month fixed term contract. If a fixed term contract of 12 months in duration is then converted into a permanent appointment and all invoices across the duration of the contract have been paid on time then no fee applies for the temporary to permanent change. If an Introduced Candidate placed on a fixed term contract accepts a permanent position with the client (regardless of role) either during or at the conclusion of their contract or during the first 6-month period following conclusion of the contract a ‘Permanent Placement Fee’ is payable.
(c) For Hour Rate Recruitment: For hour rate contracts, payment is of the essence in a manner agreed between the individual parties. In the case of an hourly rate contract with or without a fixed term, if the candidate has been employed on an hourly rate contract for any period of time less than 12 months and is then moved into a fixed term contract or a permanent role then a 100% standard fee is payable.
(d) Time for payment for all services is of the essence.
6.2 GST: If any GST is payable on any supply made by a party (“supplier”) to another party (“recipient”) under or in connection with an Agreement, the recipient must pay to the supplier the amount of such GST (to the extent that it is not already specifically included) in addition to the consideration otherwise payable for the supply.
6.3 Interest on Late Payment: If any Charge is in arrears, the Client will pay to Role interest calculated and compounded daily on the outstanding sum from the date payment was due until the actual date of payment at the rate of 5% per annum above the then current interest rate on business overdraft facilities charged by Role’s trading bank. If any late payment is the subject of a genuine dispute then the Client will only pay interest under this clause on the amount ultimately determined to be payable by the Client.
6.4 Disputed Invoices: Role will make all reasonable efforts to ensure billing accuracy and in the event that an error occurs, Role will use reasonable efforts to correct any billing inaccuracies in a timely manner. If the Client has a genuine dispute in relation to all or any portion of an invoice submitted by Role, it must pay the undisputed amount, but may withhold payment of the amount subject to the dispute. Either party may refer the disputed payment for dispute resolution set out in these General Terms.
6.5 No Set Off: The Client may not set off any monies claimed to be owed by Role to the Client against sums due to Role.
6.6 Costs: All fees and expenses incurred by Role (including solicitor-client legal fees) in connection with the enforcement of any Agreement because of a default of any provision of an Agreement by the Client are payable by the Client.
7 CLIENT’S WARRANTY AND ACKNOWLEDGEMENT
7.1 The Client warrants that it is acquiring the Services in trade for the purposes of a business, and acknowledges that the Consumer Guarantees Act 1993 does not apply.
7.2 The Client acknowledges that the Services are purchased relying solely upon the Client’s skill and judgment and not on Role’s representations or other conduct, except those provided by Role in writing. The purpose of this clause 7.2 is to expressly contract out of the Fair Trading Act 1986 to the maximum extent possible, and the parties agree that it is fair and reasonable to do so.
8.1 Exclusion of Warranties: All representations, terms, warranties, guarantees or conditions (whether implied or by statute, common law or custom of the trade or otherwise) in respect of any Services supplied or to be supplied in accordance with any Agreement, not expressly included in the Agreement, are expressly excluded to the maximum extent permitted by law, including implied warranties, guarantees or conditions of merchantability and fitness for a particular purpose.
8.2 Exclusion of Liability: In no event will the measure of damages against Role for any breach of any Agreement, or any negligence or other action or contravention of any statutory or common law include, nor will Role be liable for:
(a) Any damages suffered by or expenses incurred by the Client as a result of the acts or omissions of a Candidate in performing services for the Client (whether wilful, dishonest, reckless, negligent or otherwise, and whether or not occurring at the premises of the Client or any other place where services are performed for the Client or an engagement is performed); or
(b) Any breach of any Agreement to the extent that the breach is attributable to the negligence, misconduct or breach of the Client; or
(c) Any indirect or consequential loss or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
8.3 Limitation of Liability: If Role’s liability is not excluded under an Agreement, to the extent permitted by law, Role’s liability in relation to the supply of Services is limited to (at Role’s sole discretion) supply of the Services again or the cost of having the Services supplied again.
8.4 Where Inapplicable or Ineffective: To the extent the limitation in clause 8.3 does not apply or is not effective in accordance with its terms, then in no event will the aggregate liability of Role to the Client arising from all breaches of any Agreement, tort (including negligence) or other action or contravention of any statute or otherwise, exceed the total amounts paid by the Client to Role under the applicable Agreement to which the breach or action relates over the 12 months preceding the Client’s claim.
8.5 No Third Party Claim: Role is not liable to any party other than Client in connection with any Agreement or the Services.
9 DISPUTE RESOLUTION
9.1 Stay Of Proceedings: If a dispute arises out of or relates to any Agreement (Dispute), a party may not commence any proceedings relating to the Dispute unless it has complied with the provisions of this clause 9, except where the party seeks urgent interlocutory relief.
9.2 Dispute Resolution: A party to an Agreement claiming that a Dispute has arisen must give written notice to the other party specifying the subject matter and details of the Dispute and the relief sought. After written notice of Dispute being given, the parties must then for a period of 20 working days endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques (such as negotiation, mediation, expert evaluation or determination or similar techniques) as agreed by them.
9.3 Other Remedies: If the Dispute is not resolved within 20 working days of the written notice of Dispute being given the parties are free to pursue their legal remedies as they choose.
10.1 Compliance: Each party shall comply with the Privacy Act 1993 and any applicable Code of Practice relating to privacy in respect of any Personal Information (as that term is defined in the Privacy Act) that a party receives pursuant to an Agreement.
10.2 Client Consent: The Client consents and shall procure the consent of any of its directors, employees, or agents who provide information to the Agency, to allow the Agency to access, collect, retain and use any such information about the Client for the purpose of assessing the Client’s creditworthiness, providing, and marketing, products and services to the Client, and enforcing Role’s rights under these General Terms.
10.3 Access to and Correction of Information: The Client may ask Role to show the Client the Personal Information it holds about the Client and to make corrections to it.
10.4 Candidate Information: All information in respect of a Candidate is confidential information imparted to the Client for the sole purpose of enabling the Client to determine if the Candidate is suitable for engagement, and shall not be used for any other purpose, or distributed, made known or otherwise published by the Client to any other person or persons without Role’s prior written consent unless an employment or engagement contract is entered into between the Client and the relevant Candidate. If requested, the Client must return any confidential information relating to a Candidate to Role.
11.1 Amendments: Role may review these General Terms from time to time (including the Fee Schedule) and will notify the Client of any changes. If the Client makes a further request for Role to provide Services after being notified of the changed terms, the Client will be deemed to have accepted those changes and the General Terms (as amended) will apply to each subsequent supply of Services. No other amendment to an Agreement will be effective unless it is in writing and signed by the parties.
11.2 Assignment by Consent: Neither party may assign any of its rights or obligations under any Agreement without the prior written consent of the other party (not to be unreasonably delayed or withheld). A change in control of the legal or beneficial ownership of a party will be deemed to be an assignment.
11.3 Waiver: No waiver of any breach of any Agreement by either party will be effective except an express waiver in writing signed by the party against whom enforcement of the waiver is sought. A waiver of either party’s rights or remedies due to any particular breach of any provision of any Agreement will not be construed as a waiver of any other breach of the same or any other provision. Termination of an Agreement will not operate as a waiver of any rights, powers or remedies of either party in respect of any breach giving rise to such termination or otherwise arising under that Agreement prior to termination.
11.4 Unenforceability: If any provision of these General Terms or any Agreement is held to be unenforceable under any law, that provision will be deemed modified to the extent necessary to comply with such law, or if the modification would be impracticable, will be deemed deleted and none of the other rights or obligations in these General Terms or the Agreement (as the case may be) will be affected or prejudiced.
11.5 Termination for Insolvency Event: Either party may terminate an Agreement immediately by notice in writing if the other party is subject to an insolvency event. The expiry or termination of all or any part of an Agreement will be without prejudice to the rights of the parties accrued up to the date of such expiry or termination.
11.6 Survival: All the obligations contained in these General Terms or any Agreement which are by their nature intended to and are capable of surviving the termination of an Agreement will continue in full force and effect according to their terms.
11.7 Counterpart Copies: An Agreement that requires signature may be signed in two or more counterparts (including scanned email copies), all of which when taken together will constitute one and the same document and a binding and enforceable agreement between the parties.
11.8 Governing Law: Each Agreement is governed by and construed in all respects in accordance with the laws of New Zealand. Subject to clause 9, the parties submit to the exclusive jurisdiction of the Courts of New Zealand.