- Night Nannies Australia Pty Ltd (ACN 145 109 922) (the “Agency”) introduces candidates to clients in accordance with these terms and conditions (“Terms”).
- These Terms create a legally binding contract between the Agency and the client (“Client”).
- The term “Candidate” means a person introduced to the Client by the Agency and includes a nanny, student, nurse or any other person whom the Agency introduces to the Client as a Candidate available for employment or a temporary placement by the Client.
- Client is taken to have accepted and is bound by these Terms if the Client accepts a Candidate introduced by the Agency to the Client.
- Client agrees the Agency acts as an introducer only and the terms of any engagement are between Client and the Candidate. Any decision made to select a Candidate is made in the Client’s sole discretion and at Client’s sole risk. It is for the Client to decide whether a Candidate is suitable for the type of engagement required.
- Client must pay to the Agency its fees for booking or placing a Candidate. The Agency’s fees (“Fees”) as may be amended from time to time are advertised on the website at www.nightnannies.com.au (“Website”).
- The Fees must be paid to the Agency in Australian dollars prior to any booking date or engagement (“Booking Date”) of the Candidate. Booking Dates cannot be varied after a booking is made except for Discount 10 Packs (“Discount 10 Pack”). A Discount 10 Pack may be advertised on the Website from time to time which may permit variations for Booking Dates. A Discount 10 Pack must be used within 12 months of purchase after which the Discount 10 Pack expires. Any balance that remains on the Discount 10 Pack after expiry will not be available for use.
- The Fees charged for a casual booking (“Casual Booking”) are for one engagement only. Client is liable to pay the Candidate at the end of each shift for a Casual Booking.
- Any further bookings for a Candidate returning at a future date will incur a further charge and the Client must notify the Agency of such an event. Permanent bookings (“Permanent Bookings”) are charged Fees for the day(s) specified. Any additional days or bookings will incur additional Fees.
- All bookings must be made through the Agency prior to commencement.
- Agency reserves the right to increase the Fees at any time by posting new rates on the Website. Client may cancel the Agency’s services if the Client does not accept the increase in Fees. In the event of cancellation, the Client shall no longer be entitled to employ the services of the Candidate on any basis whatsoever.
- Client agrees to notify the Agency prior to reengagement of the Candidate or extension of temporary engagement of a Candidate.
- Client authorises Agency to charge Client’s credit card for Agency’s services. Client is responsible for ensuring that sufficient funds are available at the time of payment processing and that credit card details are accurate in order to access the Agency’s services.
- If the Client defaults in the payment of any amount when due the Client shall indemnify the Agency from and against all costs and disbursements incurred by the Agency in pursuing the debt including legal costs on a solicitor and own client basis and the Agency’s collection agency costs.
- If there are payment failures due to insufficient funds, incorrect or outdated payment information, Agency reserves the rights recover payment and cancel or suspend all services until payment is made in full for any outstanding amounts.
- GST has the meaning given in the GST Act. GST Act means a New Tax System (Goods and Services Tax) Act 1999 (Cth). Agency will be entitled to add on GST for the supply of its services to Clients in Australia. The Client will pay on demand to the Agency any interest or penalties incurred by the Agency as a result of the Client’s failure to make payment under this clause.
- Agency acts as an introduction agency only and does not directly or indirectly employ or engage the Candidate. Candidates introduced by the Agency are engaged or employed by the Client. Candidates are not the employees or contractors of the Agency.
- The Client acknowledges that the Agency does not make or purport to make any contract for the engagement or employment of the Candidate by the Client and acts solely for the purpose of introducing Candidates to the Client so that contractual relationships including but not limited to the remuneration for such engagement are the responsibility of the Client.
- It is the responsibility of the Client to immediately inform the Agency if a Candidate introduced by the Agency has already been introduced by a third-party. It will be deemed under these Terms that the introduction was made by the Agency and the relevant Fees are payable to the Agency if the Client does not inform the Agency of a third-party introduction in these circumstances.
- At no time is the Client permitted to contact the Candidate directly to ascertain availability or to make a booking, including at any unspecified future date. A referral fee will be due to the Agency for any bookings or engagement outside of the initial agreed booking, placement or interview. The amount of the referral fee will depend upon the nature and duration of the engagement or employment arrangement. A referral fee is payable to Agency for each Candidate the Client elects to employ.
- Agency cannot guarantee the availability of a suitable Candidate for the required position. The decision to employ a Candidate rests solely with the Client.
- All communication, whether written or oral and however communicated, shall be confidential between the parties.
- Should the Client pass on any information including inter alia, details of a Candidate or recommend a Candidate to a third-party resulting in permanent, temporary or part-time childcare or other employment, Client will be liable for the applicable Fees as if the booking had been made by the Client itself and these Terms shall apply accordingly.
- All correspondence and records shall be confidential and remain the property of the Agency.
- Any information provided by the Agency is confidential and is provided to the Client on the condition that Client agrees that such information will not be disclosed to third parties.
- The term “Liability” means any debt, obligation, costs (including legal costs, deductibles, or increased premiums), expense, loss, damage, charge of liability of any kind, including those arising from third-party claims, those that are prospective or contingent and those the amount of which is not ascertained or ascertainable, and whether arising under breach of contract, in tort (including negligence), restitution pursuant to statute or otherwise at law or in equity.
- Agency endeavours to provide the Client with only the most suitable Candidates. Notwithstanding, the final decision to employ a Candidate is the sole responsibility of the Client and the Agency does not accept any Liability for any kind of inconvenience, loss or damage howsoever arising and whether caused directly or indirectly from an act or omission of a Candidate introduced by the Agency.
- Agency gives no warranty in respect to the suitability, honesty, capability or character of any Candidate. The Agency shall not be liable for the acts and omissions of a Candidate and the Agency acknowledges that the selection of a Candidate is on the basis of the Client’s own judgement.
- Client agrees that the Agency is not an agent or representative of the Candidate and that the Agency is not liable for any Liability including any loss, expense or injury, delay or damage the employer or any other person may suffer or incur as a result of the wrongful acts, omissions, or negligence of the Candidate or arising from the introduction or employment of a Candidate or arising from Agency’s failure to introduce a Candidate.
- This Agreement is to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible then the Agency limits its liability as follows, at Agency’s option:
- for any claims relating to these Terms to the fees payable under these Terms for the preceding 2 months; or
- in the case of the Agency’s services, the replacement of the services or the payment of the cost of having the services supplied again.
- This clause survives the termination or expiry of these Terms for whatever reason.
- WORKPLACE SAFETY AND DISCLAIMER
Agency is not responsible for the workplace safety of any Candidate referent to a Client in whatever capacity engaged by the Client. Client should seek their own independent legal or professional advice as to Workers Compensation Insurance or similar insurance cover. Client must seek specific advice tailored to Client’s circumstances. Agency is not responsible for any damage or breakage which occurs when workers referred by the Agency are on the Clients premises. Accidents can happen, and the Agency recommends that all household items (especially valuables) be covered by the Clients Household Contents Insurance.
Client agree to indemnify, defend, and hold harmless the Agency, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, Liability, damages, and/or costs (including reasonable attorney fees and costs) arising from Client’s access to or use of the Website and the Agency’s services, Client’s violation of these Terms, and Client violations of state, federal, local, or foreign law caused by or arising out of Client’s acts or omissions.
- Except as required by the Australian Consumer Law (“ACL”), the Agency will only offer a refund of the Fees if the Agency is unable to facilitate the supply of its services to the Client or if the Agency determines in its absolute discretion it is reasonable to do so.
- Should Client wish to obtain a refund or further services to rectify the problem in the delivery of the Agency’s services, Client may contact Agency to report any defects in the services to make a claim. Refunds are made in Agency’s discretion subject to any guarantees that cannot be excluded under the Australian Consumer Law.
- A “Probationary Period” means a period of 60 days from the date of the Candidate’s arrival at the Client’s residence.
- If unforeseen circumstances arise which result in the termination of the Candidate’s engagement during the Probationary Period, the Agency will offer a new Candidate to the Client provided termination occurs within the Probationary Period and:
- the Agency’s Fees are paid by the due date;
- the Agency is advised in writing as to the termination of the engagement within 24 hours of termination;
- there are no reasonable grounds or valid cause for the Candidate to terminate the engagement;
- where the Client is terminating the Candidate’s engagement, the Agency will endeavour to replace the Candidate if the Client has made every reasonable effort with communicating their expectations to the Candidate including a workplace agreement between Candidate and Client (Employer) and has advised the Agency in writing prior to termination, and
- the role for the new Candidate must be the same as when the Candidate was engaged initially.
- The Agency’s services advertised on the Website may include Night Nannies Sleep Guidance, Postnatal Care or Overnight Support services (“Consultancy Services”). Cancellations for Consultancy Services incur an additional cancellation fee of the first 3 hours of each shift booked to cover the Candidate’s loss of income. Client agrees that they have 3 weeks to reschedule in the case of Sleep Guidance before their credit card is charged the cancellation fee. For all other services if less than 24hrs notice is given for cancellation the Client agrees their credit card can be charged the cancellation fee.
- In the event that the Client cancels the booking or placement prior to commencement, the Agency reserves the right to retain 50% of the Fees for work incurred.
- In the event that the Candidate withdraws their application or does not honour their booking or temporary placement, the Client agrees to indemnify the Agency and hold it and all its employees and representatives harmless from any costs or expenses arising out of any claim against the Agency, relating in any way to a Candidate’s employment. Client agrees that the booking agreement or placement is between the Candidate and the Client. Agency agrees that in the event the Candidate does not honour their booking, that the Agency will endeavour to replace the Candidate. If Agency is unable to replace the Candidate, the temporary fee will be refunded for the period that has not been used. For permanent placements, the Agency first will endeavour to replace the Candidate. If replacement is not possible, a partial refund based on daily casual usage will be charged at the casual daily booking fee rate. Otherwise if prior to commencement an administration fee will be charged or retained by the Agency.
- If the Client terminates the Candidate’s employment with cause, or if the Candidate voluntarily resigns without cause within the Probationary Period or prior to commencement of the engagement, Agency without additional charges or fees unless specific advertising is required, will make such reasonable additional referrals of Candidates to the Client to assist the Client to hire a replacement for the remainder of the Probationary Period.
- If the Candidate resigns due to the Client materially changing the job description, adding responsibilities or duties, or changing the work schedule after the Candidate’s start date from what was initially agreed upon in the “Job Description”, or due to mistreatment of the Candidate, Agency has no obligation to replace the Candidate and the warrantee associated with the Probation Period becomes void upon the Candidate’s resignation. The Client expressly agrees that Agency’s Liability pursuant to this warranty is limited solely and exclusively to Agency’s obligation to refer additional Candidates for the Client’s consideration, whether or not that results in a hire or engagement. Refunds pursuant to this clause will only be made after further referrals of Candidates for the position within 30 days and on the following basis:
|Days of Employment
||Action or % Total Fee Refunded
|0 - 29 days
||Replace the candidate or refund 30% of the fee.
|30 - 59 days
||Replace the candidate or refund 20% of the fee.
|After 60 days
||Refund 0% of the fee.
- DISPUTE RESOLUTION
If a dispute arises between the parties then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. During the 30-day period after a notice is given (or longer period agreed in writing by the parties to the dispute) (‘Initial Period’) each party to the dispute covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute. If the parties are unable to resolve the dispute within the Initial Period, each party agrees that the dispute shall be referred for mediation by a mediator and location agreed between the parties. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved by mediation within a period of 60-days from the date of a party referring the matter to mediation by notice to the other party, either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
- referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
- conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
- OTHER TERMS
- Entire Agreement. This Agreement embodies the entire understanding and Agreement between the Parties as to the subject matter of this Agreement.
- Waiver. No waiver of any of these Terms shall be effective unless such waiver is in writing and signed by the Agency.
- Amendment. These Terms may only be amended with the Agency’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Agency and the Client.
- Severance. If any provision of these Terms is unenforceable, illegal or void, that provision is severed, and the other provisions remain in force.
- Assignment. The Agency may assign and novate its rights and obligations under these Terms to a third party. The Agency will provide reasonable notice to the Client of any assignment.
- Force Majeure. Notwithstanding any other provisions of these Terms, the Agency need not act if it is impossible to act due to force majeure, meaning any cause beyond its control (including war, riot, natural disaster or law taking effect after the date of these Terms).
- Successors and assigns. A person includes the trustee, executor, administrator, successor in title and assign of that person. This clause must not be construed as permitting a Party to assign any right or obligation under this Agreement other than as provided in this Agreement.
- Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of New South Wales and the Parties hereby submit to the non-exclusive jurisdiction of the courts of New South Wales in relation to any claim or matter arising from or in connection to this Agreement.
- Counterparts. This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.