Contractor Terms and Conditions
1. Scope of Contractor Terms
1.1 These Terms apply to all Contractor Services provided by us and are to be read in conjunction with the Contractor Recruitment Assignment Agreement (an example of which is set out in Schedule 1).
1.2 Each Contractor Recruitment Assignment Agreement represents a separate contract between us and you, subject to these Terms.
1.3 In these Terms, unless the context requires otherwise, Potentia Limited will be referred to as “we”, “us” or “our”. You as the client will be referred to as “you” or “your”.
1.4 Where any conflict arises between the signed Contractor Recruitment Assignment Agreement and these Terms the signed Contractor Recruitment Assignment Agreement will prevail over these Terms.
2.1 We will be entitled to charge a Fee for the Contractor Services.
2.2 We will calculate our Fee based on the hours and days worked by the Contractor plus any travel or other expenses agreed between us and you.
2.3 We will seek your prior approval before incurring any significant disbursements.
2.4 We will invoice you monthly or at such other times as agreed or specified in the Contractor Recruitment Assignment Agreement.
2.5 You will pay us on or before the Payment Date the Fees plus GST and any disbursements.
2.6 If a Default Event arises, we will be entitled without limitation to take any one or more of the following actions:
2.6.1 To charge interest calculated daily on any sum due at the Interest Rate from the Payment Date until the date that payment is made in full;
2.6.2 Instruct a debt collection agency to recover any sums due on our behalf, in which case you will be liable for any debt collection fees thereby incurred, including court costs, and legal fees on a solicitor-client basis;
2.6.3 To terminate the Contractor Services immediately.
2.7 Failure to enforce or delay by us will not be deemed a waiver of these Terms unless expressly agreed in writing.
3. Authorisation of time sheets
3.1 You will approve and authorise a weekly timesheet via the Potentia online time sheeting system. You must clearly indicate on the weekly timesheet the hours worked by the Contractor during that week.
3.2 By completing the timesheet you confirm that you approve the hours noted on that timesheet, the work performed during those hours, and you agree to pay our Fee in accordance with the Terms without dispute or deduction.
3.3 The failure by you to approve any time sheet will not preclude us charging you in full for all time actually worked by the Contractor in accordance with these Terms.
4. Our obligations
4.1 We will use all reasonable endeavours to introduce you to a suitable Contractor to fill your Vacancy. However, we cannot guarantee that a suitable Contractor will be found for each Vacancy.
4.2 Where appropriate we will take steps to verify any information supplied to us by the Contractor should any questions arise as to the information’s accuracy.
4.3 Whilst we endeavour to ensure the suitability of every Contractor introduced to you, you acknowledge that you will not rely upon any representation or other conduct by us as to the suitability of any Contractor and no warranty as to the suitability of any Contractor will be given by us to you.
4.4 We agree to:
4.4.1 pay each Contractor the fees or charge (hourly or daily) and other payment and reimbursement of disbursements to which he or she is entitled by reason of carrying out the work for you; and
4.4.2 make such deductions for tax or otherwise as required by law.
5. Your obligations
5.1 You undertake not to allow any Contractor to undertake any work other than the work advised to us before the Commencement of the Assignment.
5.2 You will satisfy yourself before instructing the Contractor to perform any services that the Contractor is capable of carrying out the services required, including the operation of any equipment or vehicles. You will be responsible for obtaining any work or other permits required to perform the services performed by the Contractor and for ensuring that the Contractor satisfies any medical requirements or other qualifications that may be appropriate or required by law.
5.3 If you identify any performance issues with the Contractor you should bring that issue to our attention in writing as early as possible.
5.6 You undertake to exercise all supervision, direction, and control over the manner, time and place, in which the Contractor carries out his or her work for you for the duration of the Assignment (notwithstanding the fact that the Contractor is not your employee).
5.7 You undertake to comply with all obligations, duties, laws and regulations (whether statutory or otherwise) in any way arising from or directly or indirectly connected with the services rendered by a Contractor.
5.8 You agree to take all reasonable precautions to ensure the health and safety of the Contractor in your place of work including meeting all obligations under any health and safety legislation or regulations including, without limitation, the Health and Safety at Work Act 2015.
5.9 You agree to assist the Contractor and us meet any of our respective health and safety obligations including:
5.9.1 immediately reporting to the Contractor and us any health and safety incidents relating to the Contractor; and
5.9.2 providing on request all information required by Contractor or us to meet our respective health and safety obligations including, without limitation, providing to us any reports made in respect of a health and safety incident, your internal health and safety procedures, your incident register and access to your employees where we consider necessary to conduct an interview in respect of a health and safety incident.
5.10 You undertake to advise us of a Vacancy that no longer requires our Contractor Services.
6. Workers conduct and performance
6.1 The hours of work, performance standards, obligations and specific duties and responsibilities of the Contractor where not specified in the Contractor Recruitment Assignment Agreement are to be agreed between us and you and notified by you to the Contractor.
6.2 Should the Contractor be unable to complete or fulfil the terms of any Assignment we will use all reasonable endeavours to find a replacement Contractor.
7. Termination of assignments
7.1 Unless specifically provided for in the Contractor Recruitment Assignment Agreement, and subject to the remainder of this clause, all Assignments are for the fixed period noted in the Contractor Recruitment Assignment Agreement.
7.2 Subject to clauses 7.3 and 7.4, you may terminate the Contractor’s assignment in any of the following circumstances:
7.2.1 Serious misconduct of the Contractor;
7.2.2 Repeated misconduct by the Contractor;
7.2.3 Any breach of confidentiality imposed by these terms;
7.2.4 Upon discovery that a Contractor has supplied false information or material omissions in relation to their work history or other personal details; or
7.2.5 Poor or substandard performance by the Contractor.
7.3 Should you wish to terminate an Assignment prior to the final date noted in the Contractor Recruitment Assignment Agreement you must provide us with prior notification in writing in the form of a Termination Notice. The Termination Notice must specify the ground upon which the termination is made including any grounds under clause 7.2 (if applicable) and your dissatisfaction (if any) with the Contractor. You must provide the Termination Notice to us:
7.3.1 In the case of termination under clause 7.2 at least 24 hours in advance of the Termination Date; or
7.3.2 In all other cases as specified in the Contractor Recruitment Assignment Agreement.
7.4 Should the Contractor’s Assignment be terminated for any reason, we will be given the opportunity to replace the Contractor with a suitable alternative Contractor approved by you within fourteen (14) days of the Termination Notice.
7.5 We may terminate an Assignment in any of the following circumstances:
7.5.1 immediately upon discovery of any circumstances which in the opinion of us breach any of your express or implied obligations under this Agreement, breach any of the Contractor’s express or implied obligations under our Agreement with the Contractor or could result in any loss to us relating to the Assignment. Notification of such termination will be provided in writing by us to you; or
7.5.2 by providing notice in writing as per the notice period noted on the Contractor Recruitment Assignment Agreement where the Contractor is unable to complete an Assignment.
8. Contractor’s subsequent utilisation by you
8.1 At all times the Contractor is contracted to us and is not an employee of yours.
8.2 You will not offer the Contractor any further work for the Non-Utilisation Period other than under these Terms or with our prior consent in writing.
8.3 You will not introduce the Contractor to any third party (including, but not limited to, any third party which is a business owned, associated to or operated by you or any of your employees) to carry out work during the Non-Utilisation Period of a similar nature to that carried out for you by the Contractor.
8.4 In the event that you become aware that you are in breach or likely to become in breach of any of your obligations under this clause 8, you will:
8.4.1 immediately notify us; and
8.4.2 pay the Utilisation Fee calculated by us in accordance with the Terms.
9. Confidential information and privacy
9.1 We will keep any and all information strictly confidential and will not at any time, directly or indirectly, use or disclose to any person any information without your prior written consent.
9.2 Unless explicitly stated, you agree that we may advertise the role. In addition, we may discuss the role with any potential Contractor including, without limitation, identifying you as the Employer and specifying details about the role and you.
9.3 You agree to keep all information received in respect of any Contractor confidential and will not at any time, directly or indirectly, use or disclose to any person any information without the prior written consent of the Contractor or us.
10. Liabilities and Indemnities
10.1 Neither party shall be liable to the other for any indirect losses, injury, damages and expense incurred by you arising from or in any way connected with the Contractor Services including without limitation:
10.1.1 Failure of any Contractor to meet your requirements for any of the purposes for which he or she is required by you;
10.1.2 Any act or omission of a Contractor, whether wilful, negligent, fraudulent, dishonest, reckless or otherwise;
10.1.3 Any loss, injury, damage, expense or delay incurred by a Contractor; and
10.1.4 Any inaccurate or incomplete information supplied by any third party to us or you.
10.2 Neither party indemnifies the other in respect of this Agreement.
10.3 Notwithstanding any other provision in these Terms, our aggregate liability to you for any claim, claims, cause or causes whatsoever will not exceed the lesser of the actual loss by you or the Fees paid by you to us. Where you or your agents, employees or representatives contributes to any loss or damage or expense claimed our liability will reduce accordingly.
10.4 This clause 10 does not affect the rights and obligations of the parties in respect of any Default Event.
11. Variation of Terms
11.1 No variation of these Terms will be valid unless made with our written consent which can only be given by a director or other authorised officer of us.
11.2 We may from time to time update, vary or amend these Terms. Where we have updated our Terms we will provide you with a copy of the updated Terms. A copy of our updated Terms will also be available at our offices or on request.
12. Governing law
12.1 The parties agree that these Terms are governed by the laws of New Zealand and that any dispute is to be submitted to the exclusive jurisdiction of the New Zealand Courts.
13.1 In the context of these Contractor Terms, unless the context otherwise requires:
13.1.1 the definitions and terms used in the General Terms apply; and
13.1.2 the following terms have the following meanings:
- Assignment - the period during which a Contractor performs services or carries out work for or on behalf of you as agreed between you and us, commencing at the time the Contractor first reports to you to take up duties (or, if earlier, the commencement by the Contractor of such work or services) and ending upon the cessation by the Contractor of all such work and services.
- Contractor - any person who is introduced or supplied by us to you with a view to carrying out work for you on a temporary basis and not as an employee of you.
- Contractor Services - any services provided by us to you from time to time that relate to a Contractor including without limitation the provision of information, the introduction of a Contractor by us to you.
- Default Event - the non-payment of an invoice issued by us to you which relates to any of the Fees, GST, costs and disbursements.
- Default Interest Rate - 15% per annum.
- Fees - our Fees for the Services from time to time and calculated in accordance with the Terms. All Fees are expressed in New Zealand Dollars and are exclusive of GST and Disbursements.
- Non-Utilisation Period - 6 months from the end of the most recent assignment.
- Parties - us and you.
- Payment Date - the due date specified on each invoice which will ordinarily be 7 days following the date of issue of that invoice unless otherwise agreed.
- Contractor Recruitment Assignment Agreement - the signed Contractor Recruitment Assignment Agreement between the parties.
- Termination Date - the date of termination noted in any Termination Notice.
- Termination Notice - a notice issued by you under clause 7 in respect of an Assignment.
- Terms - these terms and conditions of services.
- Utilisation Fee - the Utilisation Fee is calculated at 15% of the annual remuneration of the Contractor’s new position plus GST and disbursements (if any):
- Less 25% if the duration of the Contractor’s assignment with you exceeded 6 calendar months; or
- Less 50% if the duration of the Contractor’s assignment with you exceeded 12 calendar months (Unless an existing permanent placement fee has been agreed in writing).
- Vacancy - a vacancy for which we are instructed by you to find a suitable Contractor.
- Working Day - a day on which registered banks are open for general banking business in Auckland, other than a Saturday, Sunday, public holiday or a day during the period commencing 25 December in one year and ending on 5 January in the following year. A Working Day is deemed to commence at 9 am and end at 5 pm.
Contractor Recruitment Assignment Agreement (Example)
Client Name: (Registered Company Name to which Contractor is Assigned)
Contractor Name: (Including Trading Name where Applicable)
Notice Period: (Eg. 5 working days / 10 working days / 1 month)
Hourly or Daily Rate (GST Excl): (Select as Applicable: $ 00.00 GST Exclusive / Hour $ 00.00 GST Exclusive / Day)
Hours of Work: (Note any requirements here (where applicable). Daily Rate definition (if required))
Location of Work: (Client Limited’s default work premise (or alternative locations noted as required))
Purchase Order Number: (Client to advise if a purchase order number is required)
Additional Requirements: (Any amendments to the Standard Terms / specific client requirements are noted here (ie. A specific level of insurance cover that the Contractor must adhere to))