Terms & Conditions

These standard terms are incorporated into, and form part of, the terms of any agreement (�Agreement�) made between Empower HR ABN: 99 428 193 016 and any of its relevant related bodies corporate (�Company�) and any person who seeks the services of the Company or any related body corporate, related entity or associate of that person (�Client�) for the introduction of a potential candidate or candidates to be employed on a permanent basis by the client (each, a �Candidate�).

1. Application and Acceptance
1.1 These Standard Terms apply to all transactions carried on between the Company and the Client, in respect of Candidates, unless the Client is advised in writing by an authorised representative of the Company of any additions, alterations or substitutions.
1.2 The Agreement (including these Standard Terms) is deemed to be accepted by the Client in consideration for the Company�s undertakings under the Agreement (including these Standard Terms) and a legally binding contract between the Company and the Client is thereby constituted upon the first occurrence of any of the following:
(i) The Client signs the Agreement or any other document referencing the Agreement or these Standard Terms, or indicating acceptance thereof (including receipt by the Company of a faxed transmission of such a document(s));
(ii) Receipt by the Company of electronic correspondence sent or purporting to be sent by the Client or sent from the Client�s server which indicates acceptance of the Agreement or these Standard Terms;
(iii) Receipt by the Company of oral or written instructions from the Client to locate, access and/or introduce a Candidate or Candidates given after the Agreement or these Standard Terms were supplied to the Client; or
(iv) The commencement of employment of any Candidate with the Client or any of its related bodies corporate, related entities or associates.

2. Fees
2.1 Remuneration Package
(a) In the Agreement, �Remuneration Package� means the total gross remuneration amount payable (or, where the Client cancels an assignment, that which would have been payable) to the Candidate in respect of the Candidate�s first year of employment with the Client which includes (but is not limited to) salary, estimated bonuses, allowances, superannuation, provision of a motor vehicle, and the value of any non-cash benefits (such as leave allowances and any options or other securities) or, if the package was not expressed in terms of annual remuneration, the remuneration the Candidate would receive if employed full time by the Client for a period of twelve months at the applicable rate.

(b) In calculating the Remuneration Package the provision of a motor vehicle to the Candidate shall be valued at $15,000.00, or at the actual cost to the Client, whichever is greater.

2.2 Non Executive Search
The Client must pay a fee to the Company (or as the Company directs) for the introduction of each Candidate for a permanent position, under an assignment that is agreed in writing to be, pursuant to clause 2.7 deemed to be, a �non executive search� (�Non Executive Search�) (and whether or not agreed to be a Retained Assignment (as defined in clause 2.4)), equal to the applicable percentage (�Applicable Percentage�) of the Remuneration Package of that Candidate, according to the following cost unless varied by the written agreement between the parties.

Remuneration Package	Applicable Percentage	Guarantee Period
Up to $99,999	10.00%	3 months
$100,000 and above	13.00%	3 months

These fees are based on Non Executive Search � General Assignment

2.3 Executive Search
Any assignment (whether or not agreed to be a Retained Assignment (as defined in clause 2.4)) may be agreed in writing between the parties to be an �executive search� (�Executive Search�). If an assignment is not agreed in writing to be an executive search�, it will be deemed to be a Non Executive Search, as set out in clause 2.2. The Client must pay a fee for an Executive Search of an amount equal to 25% of the Remuneration Package of the Candidate, unless varied by written agreement between the parties. In respect to an Executive Search, the Guarantee in clause 6.1 extends for a period of six (6) months (�Guarantee Period�).

2.4 Retained Assignments
An assignment that is agreed in writing to be, or pursuant to clause 2.7 deemed to be, a �retained assignment� will be a �retained assignment� (�Retained Assignment�). A Retained Assignment may or may not also be an Executive Search. The Client must pay the fee for a Retained Assignment in three instalments as follows:

(a) A commencement instalment equal to one third of the fee payable by the Client to the Company under:

(i) Clause 2.2, in respect of an assignment that is a Non Executive Search; and

(ii) Clause 2.3, in respect of an Executive Search.

The Client must pay this instalment immediately upon commencement by the Company of the assignment. This instalment is non refundable, including if the Client does not ultimately employ any Candidate.

(b) A shortlist instalment equal to the commencement instalment payable to the Company under clause 2.4(a). The Client must pay this instalment immediately upon presentation of a shortlist of Candidates to the Client. This instalment is non refundable, including if the Client does not ultimately employ any candidate.

(i) Clause 2.2, in respect of an assignment that is a Non Executive Search; and

(ii) Clause 2.3, in respect of an Executive Search.

The Client must pay this instalment immediately upon acceptance by the Candidate of an offer of employment made by the Client or any of its related bodies corporate, related entities or associates. This instalment is non-refundable.

2.5 Assignments Other Than Retained Assignments
The Client must pay the fee for each assignment other than a Retained Assignment (�General Assignment�) (as per clause 2.2, in respect of an assignment that is a Non Executive Search and as per clause 2.3 in respect of an Executive Search) in a single instalment immediately upon the acceptance by the Candidate of an offer of employment made by the Client or any of its related bodies corporate, related entities or associates. The fee is non-refundable. If an assignment is not agreed in writing to be a �general assignment�, it will be deemed to be a Retained Assignment, as set out in clause 2.4.

2.6 Service Fee
Should the Client resolve to cancel an assignment, it must immediately notify the Company of that decision. For each General Assignment (that is, other than a Retained Assignment) that is cancelled by the Client (including but not limited to due to the filling of the position internally or from another source or the cancellation of the position itself), the Client must pay a fee to the Company within 7 days of the cancellation of the assignment. The Client must pay a fee equal to 5% of the Remuneration Package of the Candidate if notification occurs prior to the preparation by the Company of a shortlist of Candidates, but otherwise, if notification takes place after the preparation of a shortlist of Candidates, the Client must pay a fee equal to 10% of the Remuneration Package of the Candidate.

2.7 Status
Unless otherwise indicated under section 2.2, each assignment will be, and be deemed to be, a Non Executive Search and a Retained Assignment.

3. Advertising & Interviewing Expenses
3.1 The Client must pay all costs with respect to advertisements approved by the Client, and the Client hereby indemnifies the Company with respect to any expense incurred by the Company with respect to such advertisements. The Client cannot require the Company to use any form of advertisement that in the Company�s opinion may breach anti-discrimination or other laws in the course of performing work under the Agreement.

3.2 All reasonable and/or prior agreed costs, disbursements and expenses incurred by the Company in the course of performing work under the Agreement, including but not limited to telephone and travel expenses, must be paid by the Client immediately upon issue to the Client by the Company of an invoice setting out such costs.

4. Payments
4.1 The Client must pay all fees, expenses and charges as required under the Agreement, and in any event, within 14 days of the date of any invoice. Where the Client does not pay all fees in accordance with the Agreement, the Client will forfeit any claim under clause 6 of these Standard Terms.

4.2 In the event of late payment or non payment, the Company reserves the right to charge interest at a flat rate of 2% per month on unpaid invoices from the due date to the receipt of payment, which interest the Client must pay immediately upon demand.

4.3 The Client indemnifies the Company with respect to any and all Liabilities incurred by the Company, legal or otherwise incurred with respect to enforcement of the Agreement.

4.4 All fees, expenses and charges under the Agreement will be invoiced in Australian dollars and are to be paid in Australian dollars. Any and all costs associated with exchange fluctuations must be borne by the Client.

4.5 The Client agrees and acknowledges that any estimate or quote of fees, disbursements or expenses which the Company may provide to the Client, verbally or in writing is an estimate only and will not be binding upon the Company and will in no way affect or impact any of the Client�s obligations under the Agreement.

4.6 The Client must pay all taxes (other than income tax), levies and other charges payable by the Company with respect to the Agreement, and must immediately reimburse the Company with respect to any such amounts paid by the Company.

4.7 In this clause, expressions that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (�GST Act�) have the same meaning.

(a) Any consideration to be paid or provided for a supply made under or in connection with the Agreement, unless specifically described in the Agreement as �GST inclusive�, does not include an amount of account of GST.

(b) Despite any other provision in the Agreement, if the Company makes a supply under or in connection with the Agreement on which GST is payable (not being a supply the consideration for which is specifically described in the Agreement as �GST inclusive�):

(i) the consideration payable or to be provided for that supply under the Agreement but for the application of this clause (�GST exclusive consideration�) is increased by, and the Client must also pay to the Company, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST (�GST amount�); and

(ii) the GST Amount must be paid to the Company by the Client without set off, deduction or requirement for demand at the same time as the GST exclusive consideration is payable or to be provided.

(c) If a payment to a party under the Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

(d) The Company will give the Client a tax invoice in respect of a taxable supply made under or in connection with the Agreement.

4.8 In the absence of manifest error, the Client must pay each invoice in accordance with its payment obligations as set out in the Agreement regardless of whether the Client disputes any amount under the invoice or considers it to have been rendered incorrectly.

5. Subsequent Employment
5.1 In the event that the Candidate is not employed by the Client in the position with respect to which that Candidate was introduced, but is employed, retained or otherwise engaged (whether directly or indirectly, permanently or on a casual basis, and in any position or as a provider of any services whatsoever) by the Client or any of the related bodies corporate, related entities or associates within 12 months from the date of introduction by the Company, in any other position whatsoever or as a provider of services, or the same position for which the Candidate was introduced to the Client is offered again to that Candidate within the said 12 months, then upon occurrence of the said employment, retainer or engagement, the Client must pay the Company the same fee that the Client would have been liable to pay the Company had the Candidate been employed by the Client in the position for which the Candidate was originally introduced by the Company. For the avoidance of doubt, no Guarantee (as per clause 6) is applicable in this case.

5.2 In the event that the Candidate is not employed by the Client in the position with respect to which that Candidate was introduced, but the Candidate is introduced b the Client to a third party and the Candidate is employed retained or otherwise engaged (whether directly or indirectly, permanently or on casual basis, and in any position to as a provider of any services whatsoever) by that third party within 12 months from the date of the introduction by the Company, then upon the occurrence of the said employment, retainer or engagement, the Client must pay to the Company the same fee that the Client would have been liable to pay to the Company has the Candidate been employed by the Client in the position for which the Candidate was originally introduced by the Company. For the avoidance of doubt, no Guarantee (as per clause 6) is applicable in this case.

6. Guarantee
6.1 In the event that either the Candidate or the Client terminated the employment of the Candidate within the Guarantee Period (as defined in, in respect of a Non Executive Search, clause 2.2 or in respect of an Executive Search, clause 2.3) which period commences upon the commencement of the Candidate�s employment with the Client, and only provided that:

(i) the Client within seven (7) days notifies the Company, in writing of the termination of employment with the Candidate;

(ii) the termination of employment is not due to redundancy, business rationalisation (including due to Company takeover), change in job description, closure of a business or a division, the desire of the Client (or a related body corporate, related entity or associate of the Client) to employ the Candidate in another capacity, or breach of any law or contract by the Client (including but not limited to constructive, unfair or wrongful dismissal); and

(iii) all fees, expenses and charges due to the Company have been paid by the Client within the time period required under the Agreement (time being of the essence with respect to obligation), then the Company shall, to the extent it is requested so to do by the Client, use its best endeavours to find a new person to fill the position vacated by the Candidate without further charge to the Client, other than with respect to expenses and disbursements including those described in clause 3 (�Guarantee�). For the avoidance of doubt, the Guarantee does not incorporate, and does not require the Company to provide, any refund of fees paid or payable under clause 2.

6.2 The Guarantee in clause 6.1 applies only to a Candidate employed by the Client as a member of its permanent staff. For the avoidance of doubt, the Guarantee does not extend to employees of the Client employed on a casual basis, or those employed for a specific period or specific task(s).

6.3 The Company is not liable to supply a person as a replacement for an employee of the Client if that employee was provided as a replacement under the Guarantee in clause 6.1.

7. Company�s Responsibility
7.1 The Client acknowledges that the Company�s responsibility is limited to the introduction to the Client of a Candidate or Candidates that the Client may wish to consider for employment, and that the Company�s responsibility does not extend to advising the Client which (if any) of the Candidates introduced by the Company would be likely to perform to the Client�s satisfaction if employed in the position offered. The Client acknowledges that the decision to employ any Candidate is the Client�s decision alone, and that it is the Client�s responsibility to ensure that any Candidate employed by the Client meets the standards required by the Client and possesses any relevant qualifications or experience. The Company makes no warranty that any Candidate introduced by the Company will perform to any particular standard if employed by the Client, and is not responsible for any loss the Client may incur as a result of the employment (or non-employment) of any Candidate by the Client.

8. Liability and Indemnity
8.1 The Client agrees to release and indemnify the Company from and against any Claim or Liability suffered by the Client resulting from the failure on the part of any Candidate to perform work to the Client�s satisfaction, or arising from or in connection with any act or omission of any Candidate, or from any delay or failure by the Company to refer a Candidate to the Client.

8.2 If the Company is liable for the breach of a warranty implied by section 74 of the Trade Practices Act 1974 in respect of services not of a kind ordinarily acquired for perusal, domestic or household use or consumption, the Company�s liability under that section is limited to the supplying of services again or the payment of the cost of having the services supplied again, in the Company�s discretion.

8.3 The Client acknowledges and agrees that:
(i) It has not relied on, and does not rely on any representation, warranty, condition or other conduct which may have been made by the Company or any of its officers, employees, agents or advisers, except as set out in the Agreement;

(ii) to the extent permitted by law, other than as expressly set out in the Agreement, all warranties, representations and undertakings (whether express or implied and whether oral or in writing) made or given by the Company or any of its officers, employees, agents or advisers in connection with any matters related to or connected with the Agreement and the transactions or arrangements contemplated by the Agreement are expressly excluded, have no force or affect and have not been relied on by the Client; and

(iii) notwithstanding any other provision of the Agreement, the Company will not under any circumstances be liable to the Client under, arising out of or in any way connected with, the Agreement for any indirect or consequential loss or damage whether arising in contract or tort (including negligence or breach of any statutory duty).

8.4 The Client indemnifies the Company in full against any claims or liabilities arising from or in connection with:

(a) the referral of or any acts or omissions of, any Candidate (including, while being interviewed by or performing work for or on behalf of the Client or travelling to or from such interview or work);

(b) any Claims or Liabilities for personal injury or death suffered by the Candidate including under applicable workers� compensation or occupational health and safety legislation (including subordinate legislation);

(c) any Claim made by a party in relation to an obligation to obtain insurance coverage or the inadequacy of that insurance coverage; or

(d) any breach of the Agreement by the Client.

8.5 If at any time the Client is in breach of any of the provisions of the Agreement, including but not limited to being in arrears in making any payments, then the Company may by notice in writing to the Client require the Client to remedy such breach or breaches as the Company specifies in that notice, and if the Client has not remedied those breaches within 7 days of receipt of the notice then teh Company may immediately terminate the Agreement, or suspend performance of the Agreement, as the Company in its absolute discretion sees fit.

9. Confidentiality
9.1 All information provided by the Company to the Client (including resumes and personal information) in respect of a Candidate or any other person (�Confidential Information�) is confidential information provided to the Client for the sole purpose of enabling the Client to determine the suitability of that person for employment with the Client or providing of services to the Client. Subject to this clause, the Client must keep such Confidential Information confidential and must not use it for any purpose other than the purpose for which it was provided.

9.2 The Client must not use or disclose any Confidential Information except for the purpose of considering the suitability of that person for employment or for providing services as contemplated in the Agreement.

9.3 The Client must destroy all Confidential Information provided by the Company with respect to any person immediately upon the Client deciding not to employ the services of that person and the Client must immediately notify the Company of that destruction.

9.4 The Client must securely store all Confidential Information provided by the Company until destroying it in accordance with clause 9.3 above.

9.5 The Client must keep written records of any and all permitted disclosures, which it must permit the Company to access and review (and must provide the Company with a copy of, upon its request) which records must include:

(a) an indication of the party to whom each disclosure was made;

(b) an indication that the disclosure was made for the purpose of considering the person to whom the information relates for employment or the provision of services such as contemplated in the Agreement; and

(c) an indication that the relevant person�s written consent to each disclosure was obtained, when required, and a copy of that consent.

9.6 The Client will, from time to time, collect personal information from a Candidate. To the extent that the Agreement contemplates, or required the Client to collect and disclose personal information of a Candidate to the Company, the Client must advise the Candidate that the personal information will be collected and disclosed to the Company. The Company may require the Client to disclose such personal information to it at any time.

10. Privacy
The Client must comply with any obligations it has under the Privacy Act 1998 (Cth) or any other privacy legislation in respect of the personal information of any Candidate but to the extent that the Agreement imposes greater obligations on the Client than applicable from time to time.

11. General
11.1 The Company is entitled to set off against any amount which the Company owes the Client under the Agreement or otherwise, any amount which the Client owes the Company from time to time.

11.2 The Company may, without limiting clause 8.5, terminate the Agreement without having any liability to the Client, immediately without notice or reason if the Client is in breach of the Agreement and either:
(i) the breach is incapable of remedy; or
(ii) the breach is capable of remedy and has not been remedied within 7 days of the Company notifying the Client of the breach.

11.3 A notice or certificate from the Company stating that a specified sum of money is owing or payable by the Client under the Agreement, or stating any other fact, event, or circumstance or determination relevant to the rights or obligations of the Company or the Client under the Agreement, is taken to be correct unless proved incorrect.

11.4 The Agreement is governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the courts of Victoria, Australia.

11.5 Any amendment of the Agreement (including these Standard Terms) must be in writing, and each of the provisions of the Agreement (including these Standard Terms) will continue in force unless and until it is expressly stated in writing to be varied.

11.6 The Agreement (including these Standard Terms) does not create a relationship of employment, agency or partnership or joint venture between the parties.

11.7 Waiver of any provision of or right under the Agreement (including these Standard Terms) must be in writing signed by the party entitled to benefit of that provision or right and is effective only to the extent set out in a written waiver.

11.8 No provision of the Agreement (including these Standard Terms) will be construed adversely against a party solely because that party was responsibile for drafting that particular provision.

11.9 The Client must not assign or otherwise deal with the Agreement (including these Standard Terms) without the prior consent of the Company. The Company may assign the Agreement (including these Standard Terms) to any party without the prior consent of the Client.

11.10 Part or all of any provision of the Agreement (including these Standard Terms) that is illegal or unenforceable may be severed from the Agreement (including these Standard Terms) and the remaining provisions will continue in force.

11.11 The Agreement (including these Standard Terms) constitutes the entire agreement between the parties as to its subject matter and in relation to that subject matter, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.

11.12 Any indemnity or obligation under the Agreement (including these Standard Terms) is independent and survives termination of the Agreement (including these Standard Terms). Any other term which by its nature is intended to survive termination of the Agreement (Including these Standard Terms) survives the termination of the Agreement.

11.13 Headings are for ease of reference only and do not affect the meaning of the Agreement.

11.14 The Agreement may be executed in any number of counterparts.

11.15 In the Agreement (including these Standard Terms):

(a) �Claims� includes all claims, notices, complaints, demands, actions, proceedings, litigation, investigations or judgements whether based in contract, tort, statute or otherwise;

(b) �Liabilities� includes all liabilities (whether actual, contingent or prospective), losses, damages, fines, outgoings, costs and expenses of whatever description; and

(c) �related body corporate�, �related entity� and �associate� each has the meaning given under the Corporations Act 2001 (Cth).