TERMS AND CONDITIONS FOR THE SUPPLY OF EXECUTIVE SEARCH SERVICES

These terms and conditions (Terms) are between Future Leadership Pty Ltd (ABN 20 614 292 974) (Future Leadership) and [#insert name of client] ([#insert ABN or ACN]) (Client) for the introduction by Future Leadership of personnel for employment or engagement by the Client on a permanent, casual or fixed term basis (Candidate).

 

1. Introduction

For the purposes of these Supply Terms:

a) The services to be provided by Future Leadership are specified in the attached Proposal. If anything in these Supply Terms is inconsistent with the proposal, these Supply Terms take precedence, unless the proposal specifically amends any of them.

b) the introduction of a Candidate by Future Leadership to the Client occurs:

i) if the Candidate is placed by Future Leadership with the Client to fill a position on a placement/labour hire basis pursuant to an agreement between the Client and Future Leadership (Placement);

ii) if the Client contacts Future Leadership (either verbally or in writing) and Future Leadership provides to or sends the Client a résumé or any other details of the Candidate;

iii) if Future Leadership contacts the Client (either verbally or in writing) and the Client agrees to accept a résumé or any other details of the Candidate, and Future Leadership then provides to or sends the Client that résumé or those other details; or

iv) if Future Leadership provides to or sends the Client a résumé or any other details of the Candidate and the Client interviews the Candidate;

c) all steps taken and work undertaken by Future Leadership in identifying a suitable candidate for Placement with, or employment or engagement by, the Client and which leads to or may lead to an introduction of a Candidate by Future Leadership to the Client constitutes the executive search services.

2. Candidates

a) Future Leadership will use all reasonable efforts to provide the Client accurate information about Candidates, including their qualifications and experience. However, the Client accepts that Future Leadership is reliant on the integrity and quality of information supplied to Future Leadership by Candidates and Future Leadership will not be liable for any false statements or misrepresentations made by a Candidate or for the accuracy or completeness of the information provided by a Candidate or a third party about a Candidate.

b) Except as required by any law, Future Leadership makes no representations and gives no warranties either express or implied as to the suitability of a Candidate for a particular position. The employment or engagement of a Candidate by the Client and the consequences that may follow from any introduction of a Candidate by Future Leadership to the Client, or the employment or engagement of a Candidate by the Client are entirely at the Client’s risk.

c) The Client indemnifies Future Leadership against any loss, damage, expense or claim suffered by Future Leadership that may arise due to any actions or omissions of a Candidate in any way arising from or associated with the executive search services, the introduction of the Candidate by Future Leadership to the Client or the employment or engagement of the Candidate by the Client. The Client accepts that when Future Leadership introduces a Candidate to the Client, Future Leadership is reliant on the details the Client provides to Future Leadership as to job description, position responsibilities, required experience and professional qualifications and any risks, including to health or safety which may be known to the Client.

3. Fees and costs

3.1 General

a) The Client agrees to pay Future Leadership the fees for the executive search services as specified in the attached proposal, plus GST (Fee).

b) Other than in clause 3.1(a), the Client agrees to pay Future Leadership a fee in respect of a Candidate who, following the introduction of the Candidate by Future Leadership to the Client, is employed or engaged by the Client within 6 months of the introduction, whether in the role in which the Candidate was originally submitted for placement under the attached proposal by Future Leadership or otherwise. For the avoidance of doubt, this includes any subsequent placement of Candidates referred to the Client through the executive search services.

c) The Candidate’s gross annual remuneration package or fee payable includes the base salary or base fee (as applicable) payable to the Candidate and any other remuneration or amounts such as superannuation, commission, bonuses, sign on payments, relocation allowance and the value of any other non-salary benefits.

d) Unless otherwise agreed in writing between the parties, the fees and costs payable by the Client will be calculated in accordance with this clause 3.

3.2 Permanent Fee (for additional placements after the initial placement)

Where the Client employs or engages, or a related entity of the Client employs or engages on the Client’s referral, a Candidate on a permanent basis, the fee payable by the Client to Future Leadership will be equivalent to 20% of the Candidate’s gross annual remuneration package or fee payable to the Candidate for the first year of the employment or engagement, plus GST (Fee).

3.3 Casual/Fixed Term Fee (for interim placements)

Where the Client employs or engages, or a related entity of the Client employs or engages on the Client’s referral, a Candidate on a casual or fixed term contract following the introduction of the Candidate by Future Leadership to the Client, the fee payable by the Client to Future Leadership is 20% of the Candidate’s gross equivalent annual remuneration package or fee payable to the Candidate during the casual of fixed term period, plus GST (Fee).

3.4 Unpaid position (for unpaid Board placements)

If the position to which the Client appoints the Candidate following the introduction of the Candidate by Future Leadership to the Client, is unpaid, the Client will pay Future Leadership a fee of $20,000, plus GST (Fee).

3.5 Miscellaneous recruitment related expenses

a) All out of pocket, recruitment related expenses incurred by Future Leadership in providing the executive search services to the Client (such as travel/accommodation/meals for Candidates, Future Leadership employees, contractors or agents, and prospective Candidate meetings, etc.) (recruitment related expenses), plus GST, will be invoiced to the Client subject to clause 3.5(b).

b) In the event any recruitment related expenses are likely to be in excess of $1,000 excluding GST per item, Future Leadership will seek the prior written consent of the Client to the expenses before they are incurred.

3.6 Advertising costs

a) A digital advertising package of $1,000 will be invoiced to the Client for each position, listing the position on the Future Leadership website, LinkedIn and one Seek advertisement, unless otherwise stated in the proposal.

b) Any advertisements to be posted in respect of the executive search services will be discussed between Future Leadership and the Client prior to being posted to confirm details including content, size, position, media coverage and cost.

c) All costs associated with the digital advertising package and such advertisements (advertising costs) will be invoiced to the Client and payable in accordance with clause

3.7 Assessment costs

a) Application of the Future Leadership Capability Framework (assessment costs) is included in the executive search services as specified in the attached proposal.

b) Additional assessment costs will be agreed with the Client and are payable in accordance with clause 4.

3.8 Executive search services delay

Where the executive search services are delayed at the Client’s request for a period greater than 60 days from the agreed search strategy, an amount equal to one third of the Fee (delay fee), plus GST, will be invoiced and is payable in accordance with clause 4.

4. Invoicing and payment terms

a) Future Leadership is entitled to invoice the Client for the Fee, the recruitment related expenses, the advertising costs, the assessment costs, delay fee or other relevant amounts in accordance with the proposal or from the date the Candidate commences employment or engagement with the Client, or with a related entity of the Client to whom the Client has referred the Candidate.

b) Unless otherwise agreed in writing, the Client must pay Future Leadership within 30 days following receipt by the Client of a tax invoice from Future Leadership in respect of:

i) the applicable Fee as set out in clause 3 above;

ii) the recruitment related expenses;

iii) any advertising costs.

c) Future Leadership will charge GST in respect of the Fee, the recruitment related expenses and the advertising costs in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

d) If the Client is in default of making a payment under clause 4(a), Future Leadership may charge interest at the rate for the time being fixed under section 2 of the Penalty Interest Rate Act 1983 until the overdue amount is paid.

5. Replacement services

a) Where a Candidate, who is employed or engaged by the Client following the introduction of the Candidate by Future Leadership to the Client, remains employed or engaged by the Client for less than six months, Future Leadership will provide further executive search services to the Client without additional charge (other than assessment costs, advertising costs and recruitment related expenses which will be charged) in order to replace that person with another Candidate acceptable to the Client.

b) Clause 5(a) shall only apply if:

i) the Candidate employed or engaged by the Client was terminated for poor performance in the role or serious misconduct; or

ii) the Candidate resigned from their employment or terminated the engagement for reasons other than the actions or behaviour of the Client; and

iii) all amounts payable by the Client have been paid within 30 days of an invoice being issued by Future Leadership; and

iv) the Client’s specifications for the role do not change significantly, and

v) the Client has notified Future Leadership of the requirement to perform the replacements services within one month of the Candidate’s termination date and the replacement services must have commenced within three months of the termination date.

c) Clause 5(a) shall not apply if the Candidate employed or engaged by the Client was terminated or unable to commence due to illness, total and permanent disability, or death of the candidate, or immediate family member.

d) Future Leadership will only provide further executive search services for a replacement Candidate under this clause 5 once.

6. Confidentiality, intellectual property, privacy and data security

a) Any information supplied by Future Leadership to the Client (including any of the Client’s employees, contractors or agents) regarding a Candidate is supplied on a strictly confidential basis to enable the Client to assess the Candidate’s suitability for employment or engagement by the Client and shall not be disclosed to any third party without Future Leadership’s express written consent except where the Client is required to do so by law.

b) Any confidential information provided by the Client to Future Leadership will be available to any agent, employee or affiliate of Future Leadership in order that Future Leadership may provide the executive search services and otherwise as relevant to these Supply Terms.

c) Neither party has any rights whatsoever in the intellectual property of the other. For the purposes of this clause, “intellectual property” includes but is not limited to in-house software, methodology, report formats, psychometric programs, questionnaires and other recruitment tools, subject to copyright and branding.

d) The Client must at all times comply with all applicable privacy laws, including the Privacy Act 1988 (Cth) (Privacy Laws) in relation to the personal information (as defined in the Privacy Act 1988 (Cth)) of any Candidate disclosed by Future Leadership to the Client (Personal Information). In particular, the Client:

i) will not do, or omit to do, anything in respect of the Personal Information which results, or could reasonably result, in the Client being in breach of the Privacy Laws;

ii) will not use or disclose the Personal Information other than for the purposes for which Future Leadership discloses the Personal Information to the Client, unless with Future Leadership’s prior written consent or otherwise in accordance with law;

iii) will protect the Personal Information from misuse, interference and loss and from unauthorised access, modification or disclosure;

iv) will ensure that only the Client’s employees/agents (if any) who need to have access to any Personal Information have access to the particular Personal Information;

v) will immediately notify Future Leadership if the Client become aware of a breach, or potential breach, of its obligations under these Supply Terms, the Privacy Laws or any other law, with regard to the Personal Information, including if the Personal Information is the subject of unauthorised access or disclosure or is lost;

vi) will co-operate with any of Future Leadership’s reasonable requests or directions arising from or in connection with Future Leadership’s or the Client’s obligations under the Privacy Laws;

vii) will return or destroy the Personal Information upon Future Leadership’s request or otherwise upon the termination of these Supply Terms; and

viii) will not transfer or disclose the Personal Information to any other person or entity, including a person or entity located in a country other than Australia, without:

• A) requiring the recipient person or entity to enter into similar contractual arrangements with regards to the handling of the Personal Information; and
• B) obtaining Future Leadership’s prior written consent.

e) Without limiting clause 6(d), the Client indemnifies Future Leadership from and against any action, claim, suit, demand, loss, expense, damage, cost or liability incurred by Future Leadership arising out of the Client’s failure to comply with its obligations under clause 6(d) or the Privacy Laws.

7. Termination

a) These Supply Terms may be terminated by either party at any time by giving notice in writing to the other party.

b) Termination of these Supply Terms will not affect, limit, reduce or bring to an end any liability of the Client to pay any amount to Future Leadership that is or becomes due and payable to Future Leadership prior to or on termination.

8. General

8.1 Currency

References to $, AUD or Australian dollars in these Supply Terms are to the currency of Australia.

8.2 Subcontracting

Future Leadership may subcontract any of its rights or obligations under these Supply Terms.

8.3 No Assignment

Neither party may assign these Supply Terms or their rights or obligations under these Supply Terms without the prior written consent of the other party.

8.4 Relationship of the parties

Nothing expressed or implied in these Supply Terms shall constitute either party as the partner, agent,      employee, or officer of, or as the joint venturer with, the other party, and neither party shall make any    contrary representation to any other person.

8.5 Entire Agreement

These Supply Terms comprise the entire agreement between Future Leadership and the Client.  Any amendments or variation must be in writing signed by both parties.

8.6 Governing Law

These Supply Terms are governed by the laws of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria, Australia.