1.1 “Consultancy” shall mean NAC Travel International Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of NAC Travel International Pty Ltd.
1.2 “Client” shall mean the person, firm or corporate body described as such on the invoices, application for credit, quotation, work authorisation or any other forms to which these terms and conditions apply, and shall mean any person acting on behalf of and with the authority of such person or firm or corporate body.
1.3 “Engagement” shall mean the engagement, employment or use of the Candidate by the Client.
1.4 “Fee” shall mean the percentage of the Remuneration, which is payable by the Client to the Consultancy for the Introduction of the Candidate in accordance with Clause 3 of this contract.
1.5 “Introduction(s)” shall mean the introduction of a Candidate to the Client by the Consultancy where the Fee is payable only upon the Candidate’s acceptance of the Client’s offer of an Engagement. No prior specific instruction from the Client is required to effect an Introduction.
1.6 “Remuneration” shall mean the aggregate gross annual taxable salary payable to or receivable by the Candidate pursuant to the Engagement.
1.7 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.8 “Services” shall mean all services supplied by the Consultancy to the Client whereby Candidates are recruited into temporary, contract or permanent employment in line with these terms and conditions and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.9 “Candidate” shall mean an applicant for a temporary, contract or permanent position of employment introduced to the Client by the Consultancy.
2.1 Any instructions received by the Consultancy from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Consultancy shall constitute acceptance of the terms and conditions contained herein.
2.2 Introductions are effected by the Consultancy and are deemed to be accepted by the Client upon the Client’s request for details of Candidates or interview with Candidates (whether by telephone or person).
2.3 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Fee.
2.4 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Consultancy.
2.5 The Client undertakes to give the Consultancy at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.
3.1 It is the responsibility of the Client to issue a relevant Purchase Order prior to the Candidate’s start date. Failure by the Client to do so will not, under any circumstances whatsoever, be accepted as grounds for failure to pay the Consultancy’s fees as per the payment terms agreed between the Consultancy and the Client.
3.2 The Consultancy may, at its sole discretion, delay rendering its invoice until the successful Candidate’s start date.
3.3 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due, at the Consultancy’s sole discretion:
(a) fourteen (14) days following the date of the invoice for Introduction services and out-of-pocket expenses; and
(b) seven (7) days following the date of the invoice for advertising services.
3.4 At the Consultancy’s sole discretion 100% of the Fee shall be due on the event of Introduction(s), upon the Candidate’s commencement of employment with the Client.
3.5 The Consultancy’s minimum Fee is R 1,500.
3.6 For the purpose of Fee calculation:
(a) remuneration DOES NOT include bonus/profit share, allowances and any signing-on payment or equivalent, payment of pension contributions (whether to the Client’s or Candidate’s own scheme), company car, or any housing or accommodation allowances.
(b) Where the salary offered to the Candidate is expressed to be net, (i.e. after deductions) then for the purposes of calculating the Remuneration this will be grossed up to reflect the value prior to tax or other deductions, by a percentage agreed between the Consultancy and the Client, or failing agreement, by a factor of 40%.
3.7 In the event where no set Remuneration has been agreed or is not payable, the Fee will be based either on the Candidate’s previous remuneration (if data is available for the last 12 months) or where no figures are available, a set Fee of R 5,000 will be payable.
3.8 In the event of a Candidate engaged by the Client as a consequence of or resulting from an Introduction by or through the Consultancy, during the preceding 12 months period, the Consultancy shall, at its own discretion, charge the Client with the relevant placement Fee.
3.9 In the event of a Candidate being employed for an agreed set period and having completed the initial contract if the Candidate is subsequently offered a permanent contract by the Client within a six (6) month period of the completion date of the initial contract, the Consultancy is entitled, in its
own discretion, to charge an additional Fee of up to 100% of the original placement Fee.
3.10 In the event of a Candidate successfully obtaining a position of employment subsequent to attending an interview organised by the Consultancy, but the Candidate does not take up the position within six (6) months from the date of the interview, or on the date mutually agreed by the Consultancy and the Client, the Consultancy shall, at its own discretion, charge the Client with the relevant placement Fee.
3.11 In the event of a Candidate attending an interview and not being offered a position immediately but subsequently being hired within six (6) months from the date of the interview, the Consultancy shall, at its own discretion, charge the Client with the relevant placement Fee.
3.12 In the event where the Client introduces a Candidate, that has been previously introduced to them by the Consultancy, to a third party and subsequently the third party engages the Candidate within employment within 12 months of the date of the Introduction, the Consultancy shall, at its own discretion, charge the Client with a placement Fee in respect of that Candidate.
3.13 In the event where a Candidate introduced by the Consultancy to the Client is already known to the Client as a result of direct contact or contact through another consultancy, the Client shall notify the Consultancy of that fact within four (4) working days from the Introduction. Failure to comply will result with the Client liability to pay a placement Fee in the event of its Engagement of that Candidate within 12 months of the Introduction. In each case the Fee will be equal to the sum which would have been payable if the original Introduction had resulted in an Engagement.
3.14 All out-of-pocket expenses incurred by the Consultancy including, but not limited to, research, traveling expenses, interview expenses, will be invoiced in addition to the Fee(s), where such expenses have been agreed in advance between the Consultancy and the Client. International phone calls and courier charges (within reason) are included in the Consultancy’s Fee.
3.15 All advertising services provided by the Consultancy to the Client will be invoiced at cost, where such expenses, artwork and space costs have been agreed in advance between the Consultancy and the Client.
3.16 The services of Candidates taking up contract employment with the Client will be invoiced at an agreed hourly/weekly rate.
3.17 Invoices for contract employment will be raised monthly and are payable on receipt.
3.18 Payment will be made by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Consultancy.
3.19 The Fee(s) will be invoiced and are payable in Rand (R). Where the Remuneration is expressed in as non Rand (R), the Fee will be based on the Rand (R) equivalent, calculated according to the mid-point price for such currencies published in the Irish Times on the relevant Trigger Date.
3.20 VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Fee.
3.21 Receipt by the Consultancy of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Consultancy’s ownership or rights in respect of the Services shall continue.
4.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Consultancy and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
5.1 In the event of a Candidate ceasing employment within three (3) months of the commencement date, the Client shall notify the Consultancy in writing within seven (7) days of termination. The Consultancy shall, at its own discretion, undertake to supply a replacement at no additional cost.
5.2 Guarantees do not apply to replacement Candidates and are dependent on invoices and all moneys due from the Client being paid by the due date.
5.3 The guarantee in Clause 5.1 shall not cover any termination of employment which may be caused or partly caused by or arise through reasons beyond the Consultancy’s control including, but not limited to:
(a) redundancy, consultancy closure, restructuring, change of management or significant change in job description; or
(b) employment termination not in accordance with any applicable code of practice.
5.4 In the event that the Consultancy is unable to find a suitable replacement Candidate within six (6) weeks of notification, then providing that the Client does not employ the services of other agencies or any other alternative methods or causes unreasonable delay in the interviewing process, the Consultancy shall refund a proportion of the Fee(s) as follows:
(a) 80% of the Fee(s) where the termination occurs within the first month from commencement; or
(b) 50% of the Fee(s) where the termination occurs within no less than 4 weeks and not more than 8 weeks from commencement; or
(c) 25% of the Fee(s) where the termination occurs within no less than 8 weeks and not more than 12 weeks from commencement; or
(d) no refund where the termination occurs after three (3) months from commencement.
6.1 This agreement is subject to the provisions of the Sale of Goods and Supply of Services Act 1980 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).
6.2 Notwithstanding clause 6.1 nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Sale of Goods and Supply of Services Act 1980, or any laws or legislation governing the rights of consumers, except to the extent permitted by those Acts laws or legislation.
6.3 In particular where the Client buys Goods as a consumer the provisions of Clause 5 above shall be subject to any laws or legislation governing the rights of consumers.
7.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
7.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Consultancy from and against all costs and disbursements incurred by the Consultancy in pursuing the debt including legal costs on a solicitor and own client basis and the Consultancy’s collection agency costs.
7.3 Without prejudice to any other remedies the Consultancy may have, if at any time the Client is in breach of any obligation (including those relating to payment); the Consultancy may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Consultancy will not be liable to the Client for any loss or damage the Client suffers because the Consultancy exercised its rights under this clause.
7.4 If any account remains overdue after thirty (30) days then an amount of the greater of R500.00 or 10.00% of the amount overdue (up to a maximum of R5000) shall be levied for administration Fees which sum shall become immediately due and payable.
7.5 Without prejudice to the Consultancy’s other remedies at law the Consultancy shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Consultancy shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Consultancy becomes overdue, or in the Consultancy’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
8.1 Despite anything to the contrary contained herein or any other rights which the Consultancy may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Consultancy or the Consultancy’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Consultancy (or the Consultancy’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should the Consultancy elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Consultancy from and against all the Consultancy’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Consultancy or the Consultancy’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.1.
9.1 The Client and the Guarantor/s (if separate to the Client) authorises the Consultancy to:
(a) collect, retain and use any information about the Client, for the purpose of assessing the Client’s creditworthiness or marketing products and services to the Client; and
(b) to disclose information about the Client, whether collected by the Consultancy from the Client directly or obtained by the Consultancy from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or of listing (whether before or after judgement) a default by the Client on publicly accessible credit reporting databases.
9.2 Where the Client is an individual the authorities under (clause 9.1) are authorities or consents for the purposes of the Data Protection Act 1988 & Data Protection Act 2003.
9.3 The Client shall have the right to request the Consultancy for a copy of the information about the Client retained by the Consultancy and the right to request the Consultancy to correct any incorrect information about the Client held by the Consultancy.
10.1 All correspondence forwarded by the Consultancy to the Client and relating to any and all Candidates shall be considered to be strictly private and confidential between the parties involved and cannot be forwarded to any other party unless formal written permission is given, in advance, by the Consultancy.
10.2 Should these conditions be breached by the Client the Consultancy reserves the right to charge the Client a penalty Fee equivalent to the value of the original placement Fee for the Candidate.
11.1 It is the Client’s responsibility to:
(a) ensure that all future communication with Candidates is performed with the consent of the Consultancy; and
(b) treat the initial 12 weeks of employment as a “mutual responsibility” period and ensure that the new employee is given a robust induction and all necessary training and support during the early stages of their tenure; and
(c) ensure at the time of interview with a Candidate that they are satisfied with the Candidate’s qualifications, capability, integrity and suitability to the position specification; and
(d) take up any references (including the confirmation of any professional or academic qualifications); and
(e) arrange all medical examinations and investigations of the Candidate; and
(f) obtain any work or other permits; and
(g) familiarise themselves with all relevant legislation regarding employment of Candidates.
12.1 The Consultancy interviews Candidates and obtains details from them of their qualifications, skills and experience, which the Consultancy records and retains. The information contained in the Consultancy’s assessment and report is therefore based on details supplied to the Consultancy and is correct to the best of the Consultancy’s knowledge. The Consultancy accepts no responsibility whatsoever for errors, omissions or incorrect conclusions.
12.2 Whilst the Consultancy endeavors to select Candidates which, in the Consultancy’s opinion, are most suitable to the Client’s needs, the Consultancy shall accept no liability on behalf of themselves, the Consultancy’s employees, agents or assigns for any loss or damage, costs of compensation, howsoever caused, which the Client may suffer or for which the Client may become liable arising out of, or in connection with, or as a result of, the introduction by the Consultancy to the Client, of any Candidate.
12.3 The Consultancy cannot accept responsibility for any loss or expense incurred due to the Client’s lack of familiarity with any relevant legislation regarding employment of Candidates, or as a result of any infringement.
13.1 Each clause of this contract is severable and distinct from the others. If any provision of these terms and conditions is or becomes invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.2 After an initial interview with the Candidate any and all direct communication by the Client with the Candidate will be solely with the written consent of the Consultancy.
13.3 These terms and conditions and any contract to which they apply shall be governed by the laws of South Africa and are subject to the jurisdiction of the courts of South Africa.
13.4 The Consultancy shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Consultancy of these terms and conditions.
13.5 In the event of any breach of this contract by the Consultancy the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Consultancy exceed the Fee of the Services.
13.6 The Client shall not be entitled to set off against or deduct from the Fee any sums owed or claimed to be owed to the Client by the Consultancy.
13.7 The Consultancy reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Consultancy notifies the Client of such change. Except where the Consultancy supplies further Services to the Client and the Client accepts such Services, the Client shall be under no obligation to accept such changes.
13.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.