Terms and Conditions of Offer of Candidate

1.    Purpose

a) This document sets out the terms and conditions under which you agree to be bound to Mercury Consulting Group Limited (“Mercury”) in respect of any introduction of a Candidate by Mercury to you.

2.    Acceptance

a) You will be deemed to have accepted these terms and conditions through doing any of the following acts:

i) You using, or attempting to use, any information that is provided to you by Mercury; or

ii) Any communication of interest from you to Mercury or any Candidate.

b) If you do not wish to be bound by these terms and conditions, you must, prior to doing any act in clause 2 a) communicate your non-acceptance, in writing, to Mercury immediately. Despite this, clauses 3, 4, 8, and 9 continue to apply.

3.    Restrictions

a) You are restricted from doing any act in 3. b) below for a period of 12 months following:

i) Mercury offering a Candidate to you; or

ii) acceptance by you of our Candidate; or

iii)   our Candidates finish date of their Fixed Term employment with you; or

iv) after our Candidate has ended their Locum with you; or

v) the Engagement of our Candidate by you, or any other person or entity to which you introduced our Candidate, to perform any services;

whichever is later.

b) In the event that our Candidate, during the period described in clause a) above:

i) is Engaged, Employed, or contracted by you to perform any services; or

ii) receives work at any other place and such employment has occurred due to the following:

(1)   You have materially assisted or instigated the employment of our Candidate elsewhere; or

(2)   You have unreasonably failed to maintain the confidentiality of the information provided, leading to any other person or entity obtaining that information and such information assists the subsequent employment of our Candidate by any other entity;

then Mercury is due a fee.

1. c) The fee for 3 b) is calculated in accordance with clause 7 of our Candidate’s total remuneration earned or projected to earn.

4.    Privacy and Confidentiality

a) All résumés contain private information, which is protected by the Privacy Act 2020. You must observe the principles and provisions of the Privacy Act 2020 when dealing with the private information contained within the résumé.

b) These terms and conditions and transactions between Mercury and you are strictly confidential in particular this information shall not be disclosed by you to our Candidate.

c) You are not permitted to contact our Candidate or the referees of our Candidate without the prior consent of Mercury and you are liable for any damages that may arise if unapproved contact is made.

5.    Your Rights and Obligations

a) You may request information from us that you see fit for making a reasonable recruitment decision. Such information may include References, Registration, and disciplinary history.

b) If you are interested in employing our Candidate, either on a permanent / fixed term employment basis or on a locum (contract) basis, then the following will occur:

i) You must contact us and state that you are interested in employing our Candidate. You must not contact our Candidate directly until authorised by us.

ii) We will confirm our Candidate’s availability.

iii)   If our Candidate is available, then we will authorise you to contact our Candidate by teleconference or directly.

c) If you Employ our Candidate, either on a permanent, fixed term, or locum basis, then Mercury is due a fee as applicable in accordance with clause 7 below.

6.    Our Rights and Obligations

a) We will provide you with such information as is requested and which we are reasonably able to obtain prior to interview or commencement.

b) Mercury shall ensure that our Candidate takes personal responsibility for meeting all professional and registration requirements necessary for our Candidate to undertake the services.

c) Copies of verbal and written references will be provided to you upon request.

d) Mercury will not assess Technical / Clinical skills as we do not have the knowledge to determine the level of our Candidate’s skill in their field of expertise. This responsibility will lie with you.

7.    Candidate Services

a) Permanent Recruitment Service

i) This service applies when you employ our Candidate on a permanent basis.

ii) Permanent Fees

(1)   Unless otherwise agreed in writing, for permanent placements, we will receive as our fee, a percentage of the annual salary package offered or paid by you to our Candidate.  The salary package includes the salary, bonuses, commission, superannuation, and other remuneration including fringe benefits associated with the position.

(2)   The following table of annual salary packages offered or paid is used to determine a Salary % used to calculate the fee:

Salary Packages              Salary %

0 to $50,000                      15%

$50,001 to $100,000         16%

$100,001 to $150,000       17%

$150,001 to $200,000       18%

Above $200,001                 19%

iii)   Guarantees for Permanent Recruitment Service

(1)   In the event that our Candidate leaves his or her employment with you within three months, then a refund is allowed under these terms and conditions. If our Candidate leaves within:

(a)   The first month, then 80% of the fee shall be credited or refunded.

(b)   Two months of commencing work, then 50% of the fee shall be credited or refunded.

(c)   Three months of commencing employment then 25% of the fee shall be credited or refunded.

(2)   Our Candidate must leave the employment voluntarily within three months of commencing work, or be rendered physically incapable of performing the job to which he or she has been employed.  There will be no refunding of the fee in the event of redundancy, relocation, redeployment, changing of position within the same employer or through injury or illness caused by your negligence.

b) Fixed Term Recruitment Service

i) This service applies when you employ our Candidate on a fixed term basis.

ii) Fixed Term Fees

(1)   For fixed term placements, we will receive as our fee, a percentage of the pro rata annual salary package offered by you to our Candidate.  The salary package includes the salary, bonuses, commission, superannuation, and other remuneration including fringe benefits associated with the position.

(2)   Unless otherwise agreed in writing, the table of annual salary packages offered or paid in clause 7 a) ii) (2) is used to determine a Salary %.  The calculated fee is then pro-rated to the term of the Fixed Term position.

iii)   Extensions of Fixed Term

(1)   For extensions to the original Fixed Term employment Term we will charge an additional fee calculated on the same terms as clause 7 b) ii) prorated for the Term of the extension for a combined continuous employment period of up to 18 months.

(2)   Where an additional term is offered to our Candidate which is not continuous, then it is not considered an extension, and the terms of clause 7 b) ii) will apply to the additional term.

iv) Guarantees for Fixed Term Service

(1)   In the event that our Candidate leaves his or her Fixed Term employment with you prior to the end of the term then the terms as outlined for the Permanent Recruitment Service in clause 7 a) iii) applies pro rata to the length of the term of the employment.

c) Locum Service

i) This service applies when you employ Mercury to provide you with our Candidate, or you employ our Candidate directly to complete a specific service over a fixed (defined) term.

ii) When you take our Candidate as a Locum:

(1)   You agree to take our Candidate on the basis set out in these terms and conditions and as contained in a Client Locum Schedule.

(2)   At all times, the relevant services will be performed by our Candidate and you will not require Mercury, at any time, to perform the services in our Candidate’s place.

iii)   We warrant that any Candidate offered agrees to work on the terms agreed by us with you.  In the event that our Candidate does not agree to be bound by the terms agreed with you, and any additional terms required by Mercury, then the Locum will not proceed and no penalties will apply (i.e. Locums are conditional on Candidate acceptance).

iv) Professional Registration & Insurance

(1)   We shall confirm that our Candidate has suitable Registration with the appropriate government agency and professional indemnity insurance for the duration of the term.

(2)   Both parties reserve the right to suspend our Candidate, without pay, from working until appropriate Registration and insurance is confirmed.

v) Termination

(1)   The Locum shall be terminated by notice in writing:

(a)   on the expiry of the Term.

(b)   by you by giving 5 days notice in writing if our Candidate, at any time during the Term of the Locum, is responsible for conduct amounting to serious misconduct or is assessed as being not competent in providing the service to you as originally described. Provided that the Candidate has been given a written warning previously about such a complaint and has been given reasonable time to comply with such a warning;

(c)   by either party by giving notice in writing for any reason other than the above. In such a case the party notifying termination is liable to pay a fee in compensation of loss of earnings over the term of the Locum;

(d)  by us for non-payment of outstanding fees. In such case you are liable to pay a fee in compensation of loss of earnings for the remaining term of the Locum.

(2)   Termination of the Locum for any cause and by either party shall be without prejudice to the right of Mercury to sue for and recover any outstanding fees.

(3)   The provisions of these terms and conditions shall continue irrespective of the termination of the Locum.

vi) Locum Fees

(1)   Unless otherwise agreed in writing, where our Candidate is Employed on a Locum basis, then the following fees apply:

Term                        Locum%

0 – 8 days                 20%

Over 8 days             17%

(2)   You agree to pay to Mercury a fee calculated by multiplying our Candidate’s total fee by Mercury’s Locum%.

8.    General Terms

a) These terms and conditions shall continue in force until terminated in writing by either party with 30 days notice. Clauses 3, 4, 8, and 9 will continue to apply after termination.

b) Invoicing

i) Permanent Recruitment Service Invoicing

(1)   An Invoice will be issued for the fee on or shortly before the date that our Candidate starts their permanent employment with you.

ii) Fixed Term Recruitment Service Invoicing

(1)   Invoices will be issued for the fee on or shortly before the date that our Candidate starts their fixed term employment with you.

iii)   Locum Service Timesheets & Invoices

(1)   You agree to provide to Mercury, at the end of each week, a summary of the number of hours, including overtime and on-call hours, worked by our Candidate.

(2)   Mercury will invoice you each week for the work undertaken by our Candidate in the preceding week.  Such invoices shall state the total cost payable to Mercury for services provided.

(3)   Invoices shall be sent by email or fax and are deemed to be received on date sent.

(4)   Unless otherwise outlined in the Client Locum Schedule, Mercury shall be responsible for providing our Candidate with his or her remuneration.

1. iv) Guarantees

(1)   All guarantees herein are given subject to Mercury receiving payment of all fees by the due date stated in our invoices to you.

1. v) Disbursements

(1)   Any travel, accommodation, taxi’s, rental cars, meals, transfers, parking, etc paid by you for any service provided by us are not part of the total cost calculation.

(2)   We are entitled to charge for any travel, accommodation, taxi’s, rental cars, meals, transfers, parking, etc that you have authorised us to arrange and paid by Mercury. Such disbursements will be charged to you at cost plus a disbursements fee of 10% and are not subject to credit or refund.

c) Payment

i) Full payment of our invoice is due within 14 days of the invoice date.

ii) Payments that have not been made within 14 days of the invoice date shall attract interest at the rate of 1.5% per month from invoice date.

iii)   In the event that further costs (i.e. including but not limited to interest, debt collection charges, court costs, and legal costs) are incurred through the late payment of the invoices, or dispute, these will be charged to you and you accept responsibility for them.

iv) All fees, charges and disbursements are stated exclusive of Goods and Services Tax (GST). GST will, where appropriate, be added to the fees.

d) Liability

i) We do not warrant that the information contained within the résumé, references, or any other supporting documents are true and correct. You accept the information at your own risk and you are responsible for verifying and undertaking such checks as is necessary before offering employment to our Candidate.  You expressly release us from any liability whatsoever associated with the employment of our Candidate by you.

ii) You accept our Candidate to work at your premises at your own risk. You acknowledge that you have selected our Candidate to perform the services after conducting such inquiries as you see fit.

iii)   Except as expressly provided to the contrary in these terms and conditions, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise are excluded.

iv) You release Mercury from liability of any act or omission by our Candidate that causes loss, or harm, or cost, to you during the term of Employment. In any other event, you limit Mercury’s liability under these terms and conditions to the value of $250,000.00.

v) No action regardless of form arising from the Agreement may be brought by you against Mercury more than one year after the expiry of the term of these terms and conditions.

e) Waiver

i) Any failure by Mercury to insist upon strict performance of any of these terms and conditions or any delay in exercising any of its remedies shall not constitute a waiver or variation of such terms and conditions or a waiver of any default or the remedy.

f) Other Matters

i) You agree to be bound by New Zealand Law in respect of these terms and conditions.

ii) No amendment, change or modification of these terms and conditions shall be valid unless in writing and expressly agreed to by us.

iii)   This document constitutes the entire understanding and agreement between us, and any and all prior agreements, understandings, and representations are hereby terminated and cancelled in their entirety and are of no further force and effect.

iv) If any provision of these terms and conditions, or any portion thereof, is held to be invalid and unenforceable, then the remainder of these terms and conditions shall nevertheless remain in full force and effect.

v) Unless the context otherwise clearly indicates, words used in the singular include the plural, the plural includes the singular, and the neuter gender includes the masculine and the feminine.

vi) The section headings contained in these terms and conditions are for reference purposes only and shall not affect in any way the meaning or interpretation of these terms and conditions.

vii)  Includes and including are each without limitation.

viii) Herein, hereof, hereunder and other similar compounds of the word here refer to the entire Agreement and not to any particular paragraph, subparagraph, section or subsection.

9.    Definitions

a) For the purposes of these terms and conditions, the following definitions shall apply:

i) “Agreement” means these terms and conditions and vice versa.

ii) “Candidate” means the person, their agent or assignee, or any entity that the person operates through, who is the subject of the introduction by Mercury to you.

iii)   “Employ”, “Employed”, or “Employment” means an employment agreement as defined in the Employment Relations Act 2000, or other appointment.

iv) “Engage”, “Engaged”, or “Engagement” means to enter into dialogue (verbal or written), to interview, or to make an offer, in respect of any appointment of our Candidate.

v) “We”, “Us”, and “Our” means Mercury.

vi) “You” and “Your” means the organisation, entity or individual to whom Mercury has introduced a Candidate.

vii)  “Permanent” means employment, by you, of our Candidate for an indefinite term and the employment relationship is strictly between our Candidate and you (i.e. on your payroll).

viii) “Fixed Term” means employment, by you, of our Candidate for a defined term, where the employee will cease to work on a defined end date and the employment relationship is strictly between our Candidate and you (i.e. on your payroll).

ix) “Locum” means your appointment of Mercury to supply a Candidate for a defined term, where our Candidate will cease to work on a defined end date and the relationship is between Mercury, our Candidate, and you. This is not an employer-employee relationship. The parameters of this arrangement are described in a Client Locum Schedule.

x) “Term” means the period of time from the commencement date to the expiry date as defined in your Fixed Term employment contract or Client Locum Schedule.

xi) Client Locum Schedule means a contract specifying the particular terms and conditions of a Locum and incorporating this Agreement that apply between you and us for each Locum arrangement.