1. INTRODUCTION

1.1 Unless otherwise agreed in writing by Drake, these terms and conditions will apply to the supply by Drake of all recruitment services ("Services") to the Client in connection with Drake’s The Ultimate Job™ 2011 promotion ("Campaign").

1.2 Further information about the Campaign can be obtained from the www.theultimatejob.com.au website ("Campaign website").

2. DEFINITIONS

In these terms and conditions:

"Candidate" means a person located (whether by them submitting an application through the Campaign website or otherwise) and selected by Drake as potentially satisfying the Client’s Job/Person Description as being potentially suitable for employment by the Client, and includes a Drake employee.

"Client" includes each and every related corporation, office, branch and operation of the Client, whether located at the above mentioned address or elsewhere.

"Placement Fee" means an amount advised by Drake equal to no more than 15% of the Salary Package of the Candidate when employed by the Client plus GST.

"Salary Package" means each and every aspect and part of the salary to be paid to a Candidate upon commencement of employment with the Client and includes the cash component, superannuation, commencement commission/bonus, medical cover, education, car park, vehicle or other allowance. A specific dollar value must be attributed to all benefits and allowances for the purpose of these terms and conditions. Unless otherwise agreed in writing by Drake, the provision of a fully maintained vehicle shall be attributed the value of $15,000.

"Vacancy" means a vacant employment position with the Client. Words defined in bold in a clause have their defined meaning when used elsewhere in these and conditions.

3. CLIENT OBLIGATIONS

3.1 On each occasion the Client requests Drake to provide Services, the Client agrees to provide to Drake full details and particulars of the Vacancy in relation to which those Services are required including a job/person description, any special qualifications, skills or attributes that may be required, proposed commencement date and details of the Salary Package.

3.2 The Client acknowledges that Drake may decline to provide Services at its discretion.

3.3 The Client warrants that all information given to Drake (whether through the Campaign website or otherwise) relating to the assignment and the Vacancy, is complete, true and correct. If in Drake’s opinion an assignment or Vacancy or the information given to Drake in relation to an assignment or Vacancy is not genuine or real, Drake may, at its absolute discretion, withdraw and remove the material and Vacancy from the Campaign website.

3.4 The Client must immediately notify Drake when an employment agreement is entered into between it and a Candidate.

4. PLACEMENT FEE

4.1 Drake will invoice the Placement Fee to the Client when an employment agreement is entered into between the Client and the Candidate. Drake will issue a valid tax invoice for the Placement Fee.

4.2 The Client must pay Drake’s invoice within fourteen (14) days of the invoice date. Failure to pay Drake’s invoice within 14 days invalidates the replacement guarantee set out in clause 8.

4.3 Interest at the rate of 1.25% per month (15% per annum) shall be charged for invoices not paid in accordance with clause 4.2.

5. ADVERTISING COSTS AND OTHER EXPENSES

5.1 External advertising costs or other expenses chargeable to the Client will not be incurred by Drake without the prior written consent of the Client. Advertising and other expenses will be charged to the Client only where prior agreement has been obtained. Drake does not charge Clients for advertising positions on electronic job boards.

6. TERMINATION

6.1 Drake may terminate or suspend an assignment at any time by giving the Client notice in writing.

6.2 The Client may terminate an assignment at any time by giving written notice in writing to Drake. Termination will not affect Drake’s entitlement to receive payment of the Placement Fee in accordance with these terms and conditions.

6.3 Should the Client terminate an assignment and, within a period of twelve (12) months from the date Drake first referred a Candidate to the Client, engage the Candidate, either through its own resources or through another recruitment agency, the Placement Fee that would have been payable had the Client engaged the Candidate prior to the termination of the assignment will become immediately due and payable to Drake.

7. DEFERRED HIRINGS

7.1 Should the Client defer the hiring of a Candidate referred to it by Drake, and subsequently within a period of twelve (12) months from the date Drake first referred that Candidate to the Client, engage that Candidate, either through its own resources or through another recruitment agency, the Placement Fee that would have been payable had the Client not deferred the hiring of the Candidate will become immediately due and payable to Drake.

8. REPLACEMENT GUARANTEE

8.1 Should a Candidate leave or be terminated within a period of three (3) months from commencing employment with the Client, Drake will seek to find a replacement for the position held by that Candidate. Drake will not charge a Placement Fee for the replacement Candidate, unless the Salary Package of the replacement is greater than that of the Candidate being replaced whereupon an amount equal to 15% of the difference between the replacement Candidate’s Salary Package and the original Candidate’s Salary Package plus GST will be immediately due and payable to Drake. Only one replacement is available per Candidate.

8.2 The replacement guarantee shall not apply when:

1. The Placement Fee has not been paid within fourteen (14) days of date of invoice; or
2. The Candidate is retrenched or leaves as a direct result of the Client’s actions including a change in the original job description, the actual position failing to match the Client’s representations, bullying, discrimination or harassment, or any other unlawful act or omission of the Client or any person for whom the Client is responsible; or
3. The Client replaces the Candidate itself, or through another agency. To avoid doubt, and without limiting any other provision, no refund of the original Placement Fee will be provided in these circumstances; or
4. The Client has not invoked the replacement guarantee within a period of six (6) months from the date the Candidate’s employment ended; or
5. The Candidate leaves or is terminated due to a refusal to follow a request to perform illegal, unethical or deceptive acts or practices.

9. THE ULTIMATE JOBTM 2010 CAMPAIGN

9.1 The Client may request Drake to supply Services in relation to a Vacancy by posting details of the Vacancy through the portal provided on the Campaign website. However, the Client acknowledges that Drake will not provide any Services in relation to any such posting unless and until the Client has formally engaged Drake, and Drake has accepted that engagement, by the parties signing and exchanging a copy of these terms and conditions.

9.2 Drake reserves the right to remove any material posted on the Campaign website by or on behalf of the Client at any time without notice to the Client.

9.3 Upon request by Drake, the Client agrees to cooperate reasonably with Drake in relation to the conduct of the Campaign. In particular, the Client agrees to make any Candidate employed by the Client available to Drake for its reasonable promotional purposes.

9.4 The Client acknowledges that Drake has appointed Mission Australia as its charity partner for the Campaign and that Drake will pay Mission Australia an amount equal to 30 per cent of Drake’s net profit from Services supplied to the Client in respect of each Vacancy.

10. LIABILITY & INDEMNITY

10.1 The Client acknowledges that final selection of a Candidate for employment by the Client is a decision to be made by the Client. It is the responsibility of the Client to satisfy itself as to the Candidate’s qualifications, competency, integrity and suitability for the Vacancy and Drake accepts no responsibility whatsoever in that regard.

10.2 Drake will not be liable to the Client or any third party for:

1. any loss, damages, cost or expenses arising, directly or indirectly, from or in connection with any act or omission (whether negligent, dishonest, fraudulent or otherwise) of any Candidate(s) irrespective of whether that act or omission occurs before, during or after any engagement of the Candidate by the Client;
2. any loss, damages, cost or expense arising, directly or indirectly, from or in connection with any failure by Drake to supply any Candidate for any reason;
3. any loss, damage, cost or expense arising, directly or indirectly, from or in connection with the supply of the Services by Drake (including as a result of Drake’s negligence) or the Campaign;
4. any death, injury, loss or damage arising out of or caused by any act or omission of any Candidate(s), whether or not such act or omission is negligent, wrongful or unlawful;
5. any misleading, incomplete or inaccurate information supplied to the Client about a Candidate.

10.3 The Client agrees to indemnify and hold Drake harmless against any and all claims, costs (including legal costs on a solicitor and client basis), actions, suits or demands:

1. that may be made against Drake in respect of the matters set out in clause 10.2;
2. arising from or in connection with any failure by the Client to comply with its obligations under these terms and conditions or any wilful, unlawful or negligent act, error or omission by the Client.

10.4 Drake will not be liable to the Client (nor to any person claiming rights derived from the Client’s rights) for any indirect, incidental, consequential, special, punitive, or exemplary damages of any kind (including lost profits, loss of business, damage to reputation, or other economic damage), regardless of whether Drake was advised, had other reason to know, or in fact knew of the possibility thereof.

10.5 In no circumstances will Drake’s aggregate liability to the Client (including liability to any person or person whose claim or claims are based on or derived from a right or rights claimed by such other party) with respect to any and all claims at any and all times arising from or related to the subject matter of these terms and conditions, whether based in contract, tort (including negligence), or otherwise exceed the aggregate total of the amount actually paid by the Client to Drake for the Services provided hereunder.

11. PRIVACY

11.1 Both parties agree to observe the Privacy Act 1988 (Clth) and other applicable privacy laws in respect of all personal information (as defined in the Privacy Act), and to keep personal information secure and confidential, even if the Client is exempt from the application of the Privacy Act as a "Small Business Operator" (as defined in the Privacy Act). Drake’s privacy policy can be viewed at www.drakeintl.com.

12. CONFIDENTIALITY

12.1 Information provided by the Client to Drake in respect to the business affairs and operations of the Client, and information provided by Drake to the Client in respect to Candidates, shall be treated by the parties as confidential information.

12.2 The parties agree not to disclose the confidential information to any person and to only use the confidential information for the purposes of enabling Drake to supply the Services.

12.3 Upon the expiry or termination of Drake’s engagement, the confidential information shall either be destroyed or returned, as directed by the owner of the confidential information.

13. NO WAIVER

13.1 No failure by Drake to exercise or delay in exercising any right given to it constitutes a waiver and Drake may still exercise that right in the future.

14. SEVERABILITY

14.1 If any provision of these terms and conditions is void, voidable by a party, unenforceable, invalid or illegal and would not be so if a word or words were omitted, then that word or those words are to be severed and if this cannot be done, the entire provision is to be severed without affecting the validity or enforceability of the remaining provisions of these terms and conditions.

15. DISPUTE RESOLUTION

15.1 The parties must before resorting to court proceedings, refer any dispute between the parties under or relating to these terms and conditions initially to a nominated representative of each party to endeavour to resolve the dispute within 10 business days. If the dispute is not resolved, then either party may, in its sole discretion, initiate court proceedings. Nothing in this clause prevents a party seeking urgent interlocutory relief. Notwithstanding the existence of a dispute, each party must continue to perform its obligations under these terms and conditions.

16. ENTIRE AGREEMENT

16.1 The parties agree that these terms and conditions embody their entire understanding and agreement in relation to their subject matter.

17. ACKNOWLEDGMENT AND ACCEPTANCE

17.1 The Client acknowledges that it has read, understood and accepted these terms and conditions and that it has had the opportunity to seek independent professional advice.

17.2 The person who signs these terms and conditions on behalf of the Client represents that they have full power and authority to do so on behalf of the Client.

18. GOVERNING LAW

18.1 These terms & conditions are to be governed by the laws of the State or Territory in which the position the subject of the Vacancy in respect of which Services are provided is based.