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").
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
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.
6.1 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:
- The Placement Fee has not been paid within fourteen (14) days of date of invoice; or
- 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
- 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
- The Client has not invoked the replacement guarantee within a period of six (6) months from the date
the Candidate’s employment ended; or
- 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:
- 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
- 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;
- 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;
- 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;
- 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:
- that may be made against Drake in respect of the matters set out in clause 10.2;
- 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
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
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.
14.1 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.