Terms of Business

Permanent Recruitment Assignments Exclusive Permanent Recruitment Assignments Contingent Permanent Recruitment Contracting Services Engagement Agreement

Permanent Recruitment Assignments

1. ENGAGING EMMBR

Emmbr takes the business of partnering with our clients to recruit both permanent and temporary/contract workers seriously. We understand the impact that we have on both our clients and the candidates that we engage with, along with the engagement and commercial laws that govern these engagements. Our Terms of Business detail the rights and obligations of the organisations we partner with.

2. PARTIES

These Terms of Business are agreed between Emmbr ABN 43 138226 016 and Emmbr NSW ABN73 164 042 460 (“our”/“we”/“us”) and the client (“you”/”your”) and specify the terms and conditions upon which we will provide Services to you.

3. ACCEPTANCE OF TERMS

You are deemed to have accepted these Terms of Business in any and all of the following circumstances:

i. You receive from us, and accept a candidate resume, or your interview or engage any candidate represented by us for any role, and whether directly or through a third party;

ii. You provide instructions to us that specify your requirements for the recruitment of a specific position within your organisation;

iii. Your provide your approval in writing, in the form of a signed Engagement Commencement Authority or any other written form;

iv. You provide written instruction to us to extend an offer of engagement to a candidate we have represented to you.

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4. DEFINITION OF SERVICES

i. You are engaging us to conduct a recruitment process (the “Services”) on your behalf with the sole purpose of identifying, assessing, and engaging an appropriately qualified candidate or candidates who will be engaged by you in a capacity specified by you when engaging our services and confirmed at the time of the engagement of the candidate.

ii. If we provide Services to your Associated Entity (as defined in the Corporations Act 2001 (Cth)), you will be liable to us at all times as if you received those Services directly.

5. OUR (EMMBR'S) OBLIGATIONS

You should reasonably expect that we will fulfill the following obligations in the course of delivering the Services to you:
i. We will endeavor to ensure that our Services have been carried out in accordance with the professional standards of the highest professional body in our industry, the Recruitment and Consulting Services Association (“RCSA”).
ii. Notwithstanding this, as our representation of a candidate is based on information provided to us by the candidate, their referees, and other third parties, we do not accept liability for the accuracy of any information supplied in relation to candidates, including information regarding engagement history, qualifications, achievements, personal circumstances, or any other matter whatsoever. We have delivered our Services with due care and skill and otherwise to the extent permitted by law.
iii. We will not solicit or approach any candidate placed by us with you for a period of at least 12 months. This does not preclude us from dealing with a candidate working with you who directly approaches us or responds to our advertisement.

6. YOUR (THE CLIENT'S) OBLIGATIONS

We expect that you will fulfill the following obligations in the course of engaging us to deliver the Services and throughout the duration of the execution of the Services:

i. Either provide a position description or an adequate opportunity to develop an assignment briefing in person with you prior to the delivery of the Services;
ii. You agree to make the ultimate selection and engagement decision based on a combination of the information we have provided to you and your own efforts to assess the suitability of the candidate’s skills, knowledge, and experience;
iii. You are responsible for carrying out the necessary reference checking and testing (including the confirmation of academic and professional qualifications), although, on request, we will undertake this task on your behalf.
iv. You agree to comply with the terms of the Privacy Act (Cth) 1988 (and amendments, including the Privacy Amendment (Private Sector) Act 2000 (Cth)), when receiving, handling, and utilizing any information provided to you by us or any third party in writing or any other form regarding the candidate and their eligibility and suitability for engagement with you; and
v. You must not forward or refer any details of a candidate represented by us to you to any third party (including an Associated Entity) without our express written agreement. Where such action by you results in a third party interviewing or engaging the candidate, you will be liable to pay us the Service Fee that would have been payable had you engaged the candidate directly as a result of our representation; and
vi. You must not directly communicate/engage with any candidates represented by Emmbr without our express permission to do so.

7. SERVICE FEES – ENGAGED ASSIGNMENT

Where you engage Emmbr to conduct an Exclusive and/or Search Assignment – i.e., you engage Emmbr exclusively and/or candidate sourcing relies primarily on actively researching and approaching passive candidates:

i. Service Fees will be agreed on a case-by-case basis in an Assignment Confirmation Agreement; and
ii. We have eight weeks from your appointment date to source a candidate for you. If during this exclusivity period you engage a candidate other than through us, we reserve the right to treat that as an introduction and invoice you 50% of the applicable Service Fee (as we determine, acting reasonably) and our expenses. You agree this is a genuine pre-estimate of the costs we have incurred, including as a result of dedicating time, expertise, and resources based on your promise of exclusivity.

These Terms will otherwise continue to apply to an Exclusive and/or Search Assignment.

8. SERVICE FEES FOR CONTINGENT / NON-EXCLUSIVE RECRUITMENT ASSIGNMENTS

Where you engage Emmbr to identify candidates for a given requirement the service fee will be calculated using this table (“Service Fee”):

Total SalaryPackage Service Fees %(ex GST)

up to $99,999 18%

$100,000 to $149,999 22%

$150,000 to $199,999 25%

$200,000+ POA

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i. All Service Fees are calculated as a percentage (%) of the total annual remuneration package of the successful candidate or candidates engaged by you, including base salary, superannuation, company car, and any other benefits documented in your offer of engagement to the candidate.
ii. Service Fees will apply regardless of the original source of the candidate. All third-party (on an engaged basis) and internal referrals that result in an appointment will incur a fee.
iii. Regardless of whether the candidate is engaged by you on a full-time or part-time basis or for a fixed term of six months or more, our Service Fee will be calculated on the full-time annual remuneration package.
iv. For fixed and maximum term assignments of less than 6 months, the Service Fee will be discounted by 50%. Should you subsequently engage the candidate beyond the 6 months (by extending the fixed or maximum term engagement, or engaging the candidate directly or indirectly permanently or in another capacity), the 50% balance is charged.
v. Our replacement terms only apply to fixed or maximum term assignments where you have paid a full Service Fee.
vi. Service Fees will apply to any candidate.
vii. Represented by us and engaged by you or a third party to whom you have referred the candidate within twelve (12) months of the last communication regarding the recruitment assignment engagement.

9. CONTRACT ENGAGEMENTS

Refer to our separate Contracting Services Engagement Agreement.

10. AGREED EXPENSES

You are liable to pay for any pre-agreed recoverable expenses associated with the Services, such as advertising, video conferencing, travel and accommodation, which will be billed to you at cost and are due and payable within seven (7) days of the date of invoice

11. GST

All Service Fees quoted are exclusive of Goods and Services Tax ("GST"). When required by law you will be liable to remit the legislated amount due for the supply of Services to you.

12. PAYMENT

i. In the event that you have engaged us on a contingent / non-exclusive basis, the Service Fee is payable within 28 days of the invoice date. Service Fees (refer Clause 8) will be invoiced once the successful candidate has accepted your offer of engagement and confirmed their start date with you.

ii. Where payment terms are breached, unless otherwise agreed in writing, you will be liable for all reasonable expenses (including expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by Emmbr for enforcement of obligations and recovery of monies due from you (the client) to Emmbr.

13. REPLACEMENT

In circumstances where either you or the candidate engaged by you terminates their engagement within twelve (12) weeks of the date upon which the candidate commences engagement, subject to the conditions detailed in Clauses 6 and 14, we will, at no additional cost, provide Services to you to replace the candidate. This is a one-time replacement and applies only to the original candidate engaged by you.

If we are unable to replace the candidate within a mutually agreed period but not less than 45 days, you have the right to request that we provide you with a credit note, the value of which will be determined as follows:

The maximum value of any credit note provided in any instance will be two thirds (2/3) of the Fee invoiced by us. Where the candidate’s engagement is terminated within the first 8 weeks of their engagement with you, the credit note’s value will be equal to two thirds (2/3) of the Fee invoiced by us.

Where the candidate’s engagement is terminated after the first eight (8) weeks of their engagement but within twelve (12) weeks of their original engagement date, the credit note’s value will be equal to one third (1/3) of the Fee invoiced by us. A credit note provided by us to you in these circumstances is valid until twelve (12) months after the date that the original candidate’s engagement with you was terminated.

14. REPLACEMENT CONDITIONS

If you require a replacement candidate, we will only provide Services at no additional cost to you where the following conditions are met:
i. A full-Service Fee was paid, and was paid within the required timeframe as specified in our Payment conditions.
ii. Termination of engagement was not due to redundancy, restructuring, redeployment, a change in the direct line manager, or other circumstances that significantly changed the circumstances and/or conditions of the candidate’s engagement with you.
iii. The candidate did not resign due to alleged bullying, discrimination, or other misconduct within your workplace, or because you misled them during the recruitment process, or because you changed or failed to implement the original role specification provided to us.
iv. The candidate’s engagement does not cease (at your election or theirs) because you introduce a mandatory workplace policy that the candidate is unwilling or unable to comply with.
v. We are given the exclusive opportunity to replace the candidate for a mutually agreed period but not less than 45 days.
vi. Your requirements remain the same as originally specified in engaging us to conduct the Services.

15. LIABILITY & INDEMNITY

i. Subject to the other terms of this clause, and without limiting your obligation to pay undisputed amounts under these Terms, a party’s maximum aggregate liability to the other party under these Terms is limited to the value of the actual charges paid by you in the 12-month period preceding the matter or event giving rise to the claim (Liability Limit), other than liability:
(a) for death or personal injury caused by a party’s negligence (or that of its employees that arises vicariously) or willful misconduct, which liability is unlimited;
(b) arising from a party’s conduct that it knew would involve negligence or a breach of a duty of care on its part, which liability will be limited to five times the Liability Limit; or
(c) that cannot be limited or excluded by applicable law.

ii. A party is not liable for any loss of profit, data, savings, contract, goodwill, or production, or economic loss, or for any special, incidental, or punitive damages, or for any loss, damage, demand, liability, cost, charge, or expense of any kind arising from special circumstances or that does not occur naturally and according to the usual course of things.

iii. Nothing in these Terms is intended to have the effect of excluding, restricting, or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (“ACL”), or the exercise of a right conferred by such a provision, or any liability of in relation to a failure by us to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

iv. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, to the extent permitted by the ACL, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.

v. We reserve the right to charge you interest daily at an annualized rate of 10% on any overdue fees or expenses. You indemnify us for all costs and expenses (including legal costs and any other third-party costs) we incur in seeking to recover unpaid amounts.

16. ENTIRE AGREEMENT

Our services are delivered according to the terms and conditions outlined in this document. This document constitutes the entire agreement between the parties and supersedes all previous communications, representations, inducements, undertakings, agreements, or arrangements between the parties and their respective officers, employees, or agents.

17. VARIATIONS

Any variations to these Terms of Business must be authorised in writing by both parties, which in the case of Emmbr means a Director.

Contracting Services Engagement Agreement

1. ENGAGING EMMBR

Emmbr takes the business of partnering with our clients to source skilled contractors seriously (we call these contractors "Nominated Consultant"). We understand the everyday impact that we have on both our clients and the Nominated Consultants, along with the terms that govern these engagements. Our Terms of Business detail the rights and obligations of the client organizations we partner with.

2. PARTIES

These Terms of Business are agreed between Emmbr ABN 43 138 226 016 and Emmbr NSW ABN 73 164 042 460 ("our"/"we"/"us") and the client ("you" /”your") and specify the terms and conditions upon which we will provide Services to you.

3. ACCEPTANCE OF TERMS

You are deemed to have accepted these Terms of Business, and they become binding in any of the following circumstances:

(a) you receive from us, and accept information that identifies a Nominated Consultant; or

(b) you have discussions with, or engage any Nominated Consultant (including via an interposed entity) we represent; or

(c) you provide instructions to us that specify your requirements for the skills and knowhow to be delivered by a Nominated Consultant to meet your business objectives; or

(d) you provide a signed Engagement Commencement Authority or any other written form of approval; or

(e) you provide written instruction to us to extend an offer to enter into a contract for services to a Nominated Consultant.

4. DEFINITION OF SERVICES

i. You are engaging us to either or both access our proprietary database of skilled Nominated Consultants and conduct a sourcing and curating process (the "Services") on your behalf for the purposes of:

(a) identifying, assessing, and engaging an appropriately qualified and skilled Nominated Consultant that matches your requirements; and

(b) supplying the Nominated Consultant to you to carry out services of the nature set out in the Contract Engagement Schedule ("Assignment").

ii. If we provide Services to your Associated Entity (as defined in the Corporations Act 2001 (Cth)), you will be liable to us at all times as if you received those Services directly.

iii. Our Services do not include a Nominated Consultant’s performance of work and services for you. You agree we do not possess the skills or expertise required to perform the work or services that Nominated Consultants perform, and we do not have any express or implied control over the performance and delivery of work or services of a Nominated Consultant.

5. OUR (EMMBR'S) OBLIGATION

You should reasonably expect we will fulfill the following obligations in the course of delivering the Services to you:

i. We will endeavour to ensure that our Services have been carried out in accordance with the professional standards of the highest professional body of our industry, the Recruitment and Consulting Services Association ("RCSA").

ii. Notwithstanding this, as our representation of a Nominated Consultant is based upon information provided to us by the Nominated Consultant, their trade referees, and other third parties, we do not accept liability for the accuracy of any information supplied in relation to a Nominated Consultant, including information regarding services history, qualifications, achievements, personal circumstances, or any other matter whatsoever where we have delivered our Services with due care and skill and otherwise to the extent permitted by law.

iii. Throughout the Term of the Assignment, we will maintain regular contact with your Representative and the Nominated Consultant.

6. Your (the client's) obligations

We expect that you will fulfill the following obligations in the course of engaging us for the Services and throughout the duration of the execution of the Services and each Assignment:

i. Either provide a services description or an adequate opportunity to develop an Assignment briefing in person with you prior to delivery of the Services.

ii. You agree to satisfy yourself as to the skills, knowledge, knowhow, and experience of a Nominated Consultant before executing the Nominated Consultant Engagement.

iii. You agree you make the ultimate selection and engagement decision based on a combination of the information we have provided to you and your own efforts to assess the suitability of a Nominated Consultant's skills, knowledge, knowhow, and experience.

iv. You agree to comply with the terms of the Privacy Act (Cth) 1988 and other applicable privacy laws when receiving, handling, and utilizing any information provided to you by us or any third party in writing or any other form regarding a Nominated Consultant.

v. You must not forward or refer any details of a Nominated Consultant represented by us to you to any third party (including an Associated Entity) without our express written agreement. Where such action by you results in a third party engaging the Nominated Consultant for services, you will be liable to pay us a fee calculated in accordance with clause 12.

7. SERVICE FEE

We expect that you will fulfill the following obligations in the course of engaging us for the Services and throughout the duration of the execution of the Services and each Assignment:

i. Either provide a services description or an adequate opportunity to develop an Assignment briefing in person with you prior to delivery of the Services.

ii. You agree to satisfy yourself as to the skills, knowledge, knowhow, and experience of a Nominated Consultant prior to executing the Nominated Consultant Engagement.

8. AGREED EXPENSE

You are liable to pay for any pre-agreed recoverable expenses associated with our Services and an Assignment, such as advertising, video conferencing, travel, and accommodation. These expenses will be billed to you at cost and are due and payable within seven (7) days of the date of the invoice.

9. GST

All Service Fees and expenses quoted are exclusive of Goods and Services Tax ("GST"). When required by law, you will be liable to remit the legislated amount due for the supply of services to you.

10. INVOICING AND PAYMENT

i. Given the nature of our Charge Rates, the hours/days worked by the Nominated Consultant are to be recorded weekly on a timesheet and signed by an appropriate representative nominated by you. The Charge Rate for the hours/days recorded will be invoiced by us on a weekly basis. Failure by you to authorise a Charge Rate or a timesheet does not alter your liability to pay for the hours worked by a Nominated Consultant. Further, all approved timesheets are taken to be final, other than where you provide reasonable evidence that hours or days have been incorrectly recorded by the Nominated Consultant within 7 days of the date the timesheet was approved. In this case, the parties will cooperate in resolving any such timesheet discrepancies.

ii. Upon receipt of the invoice, Service Fees are due and payable within fourteen (14) days of the date of the invoice.

iii. We reserve the right to charge you interest daily at an annualised rate of 10% on any undisputed Overdue Amount. An “Overdue Amount” means an amount (or part thereof) that has been outstanding for more than 14 days from the due date of the correctly rendered invoice. You indemnify us for all reasonable costs and expenses (including reasonable legal costs and any other third-party costs) we incur in seeking to recover undisputed Overdue Amounts.

11. TERM & TERMINATION

Unless otherwise stated or where immediate termination is required due to the Nominated Consultant’s material breach of their engagement terms or wilful misconduct, you must provide us with a minimum of twenty (20) business days written notice of your intention to terminate an Assignment, and you are liable for all services performed by the Nominated Consultant until the date of termination. Our agreement with the Nominated Consultant mirrors the term and termination clause we have agreed with you. As such, you agree to pay the applicable Assignment termination notice period.

You agree we must be informed of any proposed termination of a Nominated Consultant to ensure we do not breach our terms of engagement with them.

12. SUBSEQUENT ENGAGEMENT

i. You must not engage or contract (or solicit to engage or contract) the services of the Nominated Consultant in any capacity within twelve (12) months of the termination of their last Assignment with you other than through us, without our prior written approval.

ii. If you engage a Nominated Consultant during the Term of an Assignment or in the twelve (12) months after completion of their last Assignment directly or indirectly in any capacity and on any basis, you will pay a fee as outlined in the table below ("Buy Out Fee"). We will calculate the Buy Out Fee using the Nominated Consultant's last applicable Charge Rate (minus Margin) to calculate an hourly rate and then multiply this hourly rate by 1976 (being 52 weeks x 38 hours) ("Total Package"). We then multiply the Total Package by the corresponding percentage.

Total Salary Package Fee %

≤ $99,999 18%

$100,000 - $149,999 22%

$150,000 - $199,999 25%

> $200,000 POA

13. HEALTH, SAFETY AND WELLBEING

i. You acknowledge that you are responsible, in conjunction with us as well as Nominated Consultants and others (in accordance with a party's statutory responsibilities), for the work health and safety of Nominated Consultants while they are performing work and services for you.

ii. The parties will consult, cooperate, and coordinate activities, in good faith, with each other and any other person who has a duty in relation to the same matter, in relation to the work, health, and safety of Nominated Consultants in accordance with any law relating to health and safety in the workplace, and any relevant work health and safety Code of Practice or interpretative guideline.

iii. To enable us to discharge our occupational health and safety obligations, you acknowledge that you have a duty of care to provide Nominated Consultants and our employees, agents, and contractors with:
(a) a safe workplace and work systems that eliminate hazards and control risks to health and safety; and
(b) an induction for each attended site, and for each piece of equipment to be used; and
(c) adequate supervision and training; and
(d) all relevant policies, procedures, and directions.

iv. To enable us to discharge our occupational health and safety obligations, you agree you will not:
(e) subcontract a Nominated Consultant to an Associated Entity or other person or organization without our consent; or
(f) request a Nominated Consultant to perform services with which they are unfamiliar to the extent this creates an occupational health and safety risk; or
(g) request a Nominated Consultant use equipment for which they are unqualified or untrained.

v. To enable us to discharge our occupational health and safety obligations:
(h) you agree to promptly rectify any deficiency in the provision of a safe work environment or safe systems of work that, as far as is reasonably practicable, we assess as a threat to the safety of a Nominated Consultant or any other person; and
(i) you agree to notify us immediately if a Nominated Consultant suffers a notifiable injury or is involved in a notifiable incident. We both agree to inform each other as soon as possible of an injury to, or safety incident or 'near miss involving a Nominated Consultant.

14. LIABILITY & INDEMNITY

i. Subject to the other terms of this clause 14, and without limiting your obligation to pay undisputed amounts under these Terms, a party’s maximum aggregate liability to the other party under these Terms is limited to the value of the actual charges paid by you in the 12-month period preceding the matter or event giving rise to the claim (Liability Limit), other than liability:
(a) for death or personal injury caused by a party’s negligence (or that of its employees that arises vicariously) or willful misconduct, which liability is unlimited;
(b) arising from a party’s conduct that it knew would involve negligence or a breach of a duty of care on its part, which liability will be limited to five times the Liability Limit;
(c) that cannot be limited or excluded by applicable law; or
(d) that arises from a non-delegable duty.

ii. You acknowledge we do not supervise or direct Nominated Consultants and exercise no control over the services they perform for the benefit of your business and undertaking. Therefore, you agree we are not liable for claims, losses, expenses, damages, delay, costs, or compensation of any kind arising from a Nominated Consultant’s acts or omissions while that Nominated Consultant is performing work or services for you under an Assignment, including any damage to your property or a third party, other than to the extent we are negligent in providing our Services or clause 14i(c) or clause 14i(d) applies.

iii. A party is not liable for any loss of profit, data, savings, contract, goodwill, or production, or economic loss, or for any special, incidental, or punitive damages, or for any loss, damage, demand, liability, cost, charge, or expense of any kind arising from special circumstances or that does not occur naturally and according to the usual course of things.

iv. Nothing in these Terms is intended to have the effect of excluding, restricting, or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (“ACL”), or the exercise of a right conferred by such a provision, or any liability of in relation to a failure by us to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.

v. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, to the extent permitted by the ACL, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.

15. CONFIDENTIALITY

Emmbr recognizes that information or material of or concerning the Client and/or its related entities or representatives, of whatever nature and in whatever medium it is communicated, may become available to, or accessible by Emmbr in the course of performing its obligations under this Contract (Confidential Information), and that such Confidential Information must be treated as confidential. Emmbr must not:
(a) disclose (unless legally required), reproduce, or use;
(b) permit or allow the disclosure, reproduction, or use by any person of; or
(c) permit or allow any person access to,
any Confidential Information except to the extent necessary to provide the Services to the Client in accordance with this Agreement. If Emmbr is uncertain whether information is Confidential Information, it must treat the information as confidential until the Client notifies it in writing that it is not.

16. ENTIRE AGREEMENT

Our Services are delivered according to the terms and conditions outlined in this document and the related Schedules. These documents constitute the entire agreement between the Parties and supersede all previous communications, representations, inducements, undertakings, agreements, or arrangements between the Parties and their respective officers, employees, or agents.

17. VARIATIONS

Anyvariations to these Terms of Business must be authorised in writing by both parties, which in the case of Emmbr means a Director.