Turbo Staff operates a recruitment business by introducing suitable Personnel to Clients from time to time.
Turbo Staff and the Client are entering into this agreement for the purpose of Turbo Staff presenting Personnel for Contracted Workers on a temporary assignment with the Client.
Turbo Staff and the Client have agreed to offer and accept respectively such appointment of a Worker on a temporary basis upon the terms and conditions set out in this Agreement.
Definitions and Interpretation
Definitions: In this Agreement unless the context otherwise requires:
Agreement - means an agreement entered into between Turbo Staff and the Client in respect of the provision of the Services, to which these Terms apply.
Business Day - means a day on which banks are open for retail banking, other than a Saturday, Sunday, or public holiday in New Zealand.
Client - means the purchaser of the Services from Turbo Staff.
Contracted Worker - means an employee or independent contractor provided by Turbo Staff and supplied to the Client, or proposed to be supplied to the Client, either directly or indirectly.
Controlling Third Party – means the Client, in that they direct or control the Contracted Worker in a similar or substantially similar way to that of an employer on site, on a temporary assignment.
GST - means Goods and Services Tax.
Placement Fee - means the fee set out in the Turbo Staff Fees Schedule 5 and 6, payable by the Client to Turbo Staff pursuant to clause 8.
Requirements - has the meaning given to it in clause 3.
Services - means the provision of Contracted Workers to the Client on these Terms.
Terms - means these Terms and Conditions of Business.
Turbo Staff - means Turbo Staff Limited.
Worker Fee - means the hourly rate payable for each Contracted Worker placed with the Client on a temporary basis, as specified in the Agreement.
2. Terms and Conditions
2.1 These Terms will apply to the provision of all Services by Turbo Staff to the Client and are the Terms referred to in the Agreement. Turbo Staff agrees to provide the Services to the Client and the Client agrees to pay Turbo Staff the Worker Fee, for each Contracted Worker placed with the Client, in accordance with these Terms.
2.2 In signing these Terms, the Client has acknowledged and agreed to be bound by these Terms.
2.3 Subject to clause 2.4, no amendment or variation to these Terms will be effective unless it is in writing and signed by an authorised representative of each party.
2.4 Turbo Staff may update these Terms from time to time by notice in writing. Any updated Terms will come into effect 15 Business Days after being notified to the Client in writing or successfully negotiates a revision of the updated term in which case that revised updated term will come into effect (unless the Client exercises its right of termination under clause 14.2).
2.5 These Terms will continue to remain in force until they have been validly terminated, excepting that some clauses will survive termination, where indicated.
2.6 In signing these Terms, the client has acknowledged that they are currently compliant and have a history of compliance with immigration, employment and health and safety legislation and are not on the Ministry of Business, Innovation and Employment’s stand-down list of non-compliant employers.
3.1 When the Client requires Contracted Workers for its business, the Client will request that Turbo Staff assign Workers to its business and inform Turbo Staff of its requirements for the role (Requirements)
3.2 Turbo Staff will present the Client with a shortlist of Workers who in Turbo Staff’s opinion will be qualified against the Requirements.
3.3 If the Client is satisfied with one (or more) of the Workers, it will notify Turbo Staff that it wishes to engage Turbo Staff to assign the Contracted Worker(s). The Contracted Worker(s) will then be assigned to the Client on these Terms.
3.4 Once a Contracted Worker commences on site with the Client, the Client will be deemed the “Controlling Third Party” as outlined in clause 1.1.
3.5 If the Client requires Turbo Staff to provide Permanent or Fixed Term Workers, separate terms and conditions of business will be supplied.
4. Onward Referrals and Indirect Referrals
4.1 Notwithstanding the process specified in clause 3, should a Worker be offered employment by the Client who is directly or indirectly introduced to the Client through Turbo Staff these Terms apply as if that Worker was introduced to the Client in accordance with clause 3 of these Terms.
4.2 While all introductions of Workers to the Client are to be kept strictly confidential by the Client, should an introduction by the Client of a Worker to a third-party result in that third party employing that Worker, these Terms apply as if that Worker was introduced to the Client in accordance with clause 3 of these Terms, and a Fee will be payable in respect of that Worker.
5. Fees and Payments – Contracted Workers
5.1 Where a Contracted Worker has been hired by the Client under clause 3.3, Turbo Staff will issue the Client weekly GST invoices, setting out the total amount payable by the Client in accordance with the Worker Fee, calculated on an hourly basis, as well as any other expenses as agreed to by the parties. The Client agrees to provide accurate authorised time sheets relating to the Contracted Workers to Turbo Staff on a weekly basis. The parties agree that the minimum Worker Fee payable by the Client to Turbo Staff is four 4 hours per Contracted Worker, per day of work.
5.2 The Client acknowledges that no overtime or penal rates are payable to the Contracted Workers, other than for work done on statutory holidays, as specified in the Holidays Act 2003 (Statutory Holiday). Where a Contracted Worker performs work on a Statutory Holiday, the Worker Fee is multiplied by 1.5 and an Alternate Holiday will be billed at a rate of 108% of the total hours worked on that day.
5.3 Turbo Staff shall be entitled to charge the Client interest, calculated daily at 5% above its own bank’s base lending rate on the amount of any payments which have not been made on due date. Any costs incurred by Turbo Staff or its agents in recovering any debt owed by the Client shall be added to the Client’s invoice and be payable by the Client upon demand.
5.4 The parties agree that the Worker Fee will be reviewed on a six-monthly basis.
6. Placement Fee
6.1 The Client must not solicit, encourage, or invite any Contracted Worker to become an employee or independent contractor of the Client, nor an employee or independent contractor of any third party.
6.2 To discourage poaching and solicitation of the Contracted Workers, the Client will pay Turbo Staff the Placement Fee from time to time if:
a) the Client offers a Contracted Worker employment with the Client (as an employer or independent contractor); or
the Client refers a Contracted Worker to another party who employs the Contracted Worker (as an employee or an independent contractor); or
b) Turbo Staff refers any person (including a Contracted Worker) to the Client and the Client then engages that person as an employee or an independent contractor or refers that person to another entity who then engages that person as an employee or independent contractor, at any time within 12 months when:
c) the Contracted Worker’s Assignment comes to an end, whether it be at the election of the Contracted Worker, the Client or Turbo Staff for any reason whatsoever, or
d) Turbo Staff most recently presented the Contracted Worker to the Client pursuant to clause 3.2, irrespective of whether the Client engaged the Contracted Worker at that time.
e) The Placement Fee will be payable by the Client irrespective of whether the Client induces a third party to employ the Contracted Worker, and it will be sufficient that the Client only introduced the Contracted Worker to that third party, whether in the course of that Contracted Worker’s Assignment or otherwise.
7. Turbo Staff Responsibilities
7.1 Turbo Staff will ensure that each Worker, whether permanent or temporary:
meets the Requirements,
holds any required authorisations imposed by law or any other professional body in New Zealand,
has been interviewed and referenced checked by Turbo Staff,
is lawfully employed by or contracted to Turbo Staff, if on a contract or temporary basis.
Turbo Staff will provide the Client with the relevant assignment details for the Contracted Worker upon commencement of an engagement, which will also outline the Contracted Workers visa conditions (if applicable), to ensure the Client is aware of any limitations of the occupation or location of work.
Turbo Staff will also ensure that the Client is supported in rewarding good behaviour, good performance and career progression plans with the Contracted Workers, along with supporting the client with any performance, health & safety, or other issues that may arise.
In relation to Contracted Workers and the Employment Relations (Triangular Employment) Amendment Act 2019 (the Act), Turbo Staff will support our Clients in understanding their obligations under the Act, with the Client being the Controlling Third Party of the Contracted Workers
Turbo Staff will regularly monitor employment and health and safety conditions on site for our Contracted Workers.
Notwithstanding Turbo Staff’s obligations under clause 9.1, Turbo Staff makes no representation or guarantee that the Workers will achieve a certain level of performance, achieve a certain outcome, solve a particular problem, or attain a specific goal, or otherwise meets the Requirements. The decision to hire a Worker ultimately lies with the Client, and the Client is deemed to be satisfied in its own opinion that a Worker meets the Requirements upon engaging a Worker in accordance with clause 3.
8. Client Responsibilities – Contracted Workers
8.1 Prior to an Assignment of a Contracted Worker commences, the Client will:
provide Turbo Staff with detailed information about the nature of the work including details of, and where possible supporting material relating to the work environment and health and safety, as set out in Schedule 4 of this Agreement,
not, without Turbo Staff’s prior written consent, on-hire or resupply the Contracted Worker to any other person or organisation,
ensure that the Contracted Worker adheres to the conditions of their work visa which includes the occupation and location of work (if applicable) at all times,
not, without Turbo Staff’s prior written consent, allocate tasks or responsibilities to the Contracted Worker or require the Contracted Worker to perform or participate in work, or use any plant or equipment with which the Contracted Worker is unfamiliar or in respect of which he or she is unqualified or has not received adequate training,
supervise, instruct, and direct the Contracted Worker properly at all times while they are on Assignment to the Client,
provide induction, training, and safety consumables to the Contracted Worker where appropriate,
provide Turbo Staff with the evidence of the currency and suitability of all insurances, statutory indemnity or self-insurance arrangement that relates to the Contracted Worker whether such policy, indemnity or arrangements that extend cover to the Contracted Worker, at Turbo Staff’s request,
report to Turbo Staff any performance issues in relation to the Contracted Worker as outlined in accordance with the Performance Management process outlined at Schedule 1 of this agreement, unless otherwise agreed, so that Turbo Staff can manage the feedback process with the Contracted Worker,
notify Turbo Staff immediately, or as soon as reasonably practicable, verbally followed by way of written notification of any workplace employment or health and safety incident, that may give rise to a claim pursuant, but not limited to:
a breach of legislation, and/or
a breach of contract,
by, against, or involving the Contracted Worker; and
8.2 release Turbo Staff from all claims in which the Client, or another person claiming through the Client, now has or might have in future, in respect to Turbo Staff’s liability for damage, loss or injury to or death of the Contracted Worker, or any other person to the extent that Turbo Staff’s liability is not required by law to be covered by insurance or other suitable and permissible statutory indemnity or self-insurance arrangement, or if not so required, is not covered by them.
Ensure that our Contracted Workers are provided a minimum of 30 hours per week.
Health and Safety
8.3 Upon the commencement of an Assignment of a Contracted Worker, the Client must:
comply with the Client’s obligations to the Contracted Worker pursuant to relevant legislation, including legislation relating to workplace or occupational health and safety, discrimination, and harassment (including but not limited to the Health and Safety at Work Act 2015),
maintain a safe workplace and safe systems of work, including the provision of adequate supervision and training, and appropriate safety equipment where required,
establish safe work practices,
actively work to identify, assess, and manage hazards, and include the Contracted Workers in the Client’s hazard management process,
communicate safe work practices to the Contracted Worker both prior to the Contracted Worker commencing the Assignment, and throughout the Assignment as necessary,
rectify any work environment that the Contracted Worker reasonably considers to be unsafe within a reasonable time after the Contracted Worker informs the Client; and allow Turbo Staff to enter the workplace where the Contracted Worker is working to ensure the compliance with the relevant legislation, including legislation relating to workplace or occupational health and safety, discrimination, and harassment (including but not limited to the Health and Safety at Work Act 2015).
9 Liability and Indemnity
9.1 The parties acknowledge that the Workers are under the absolute direction and control of the Client, as the Controlling Third Party during Assignment.
9.2 Turbo Staff will not be liable for, and the Client indemnifies Turbo Staff against damage, loss, or injury of whatsoever nature or kind, however caused, whether directly or indirectly by a Turbo Staff, Contracted Worker, in respect of the services provided under this agreement.
9.3 The Client agrees to indemnify Turbo Staff against any damage or loss resulting from any:
9.4 Upon the assignment of a Permanent Worker, the Client must comply with the Client’s obligations to the Permanent Worker pursuant to relevant legislation, including but not limited to legislation relating to workplace or occupational health and safety (including but not limited to the Health and Safety at Work Act 2015).
9.5 negligent act or omission of the Client; or
9.6 breach of the terms of this Agreement.
10 Consumer Guarantees Act 1993
10.1 Where the Client has acquired the Services for the purpose of a business or held itself out as acquiring the Services for the purpose of a business, the Consumer Guarantees Act 1993 (Act) does not apply to the supply of Services and Turbo Staff’s liability under the Act is excluded.
11 Credit Checks
11.1 The Client authorises Turbo Staff to exchange information about the Client with credit reporting agencies for credit assessment purposes. The Client understands that credit reporting agencies will give Turbo Staff information about them for these purposes.
11.2 The Client further understands that Turbo Staff may provide credit reporting agencies with information about them, and any such agency will hold that information on its systems and use it to provide its credit reporting services to its own customers.
11.3 Turbo Staff may use the services of credit reporting agencies in the future to monitor the ongoing creditworthiness of the Client or for other purposes related to the provision of the Services to the Client. This may include using a credit reporting agency’s monitoring service to receive updates, if any, of the information it holds about the Client.
11.4 If the Client defaults on their payment obligations to Turbo Staff, information about that default may be given to a credit reporting agency and that agency may provide information about the Client’s default to its own customer.
12. 1 In the event that the Client fails to make payment on any invoice when due, or it becomes insolvent, commits an act of bankruptcy, is adjudicated bankrupt or makes any composition or arrangement with creditors or being a company goes into liquidation, whether compulsory or voluntary, other than for the purpose of and followed by amalgamation or reconstruction, or has a receiver appointed to any part of its business or assets, then Turbo Staff reserves its right:
12.2 The Client will be liable for and indemnifies Turbo Staff for all expenses (including solicitor, client legal costs) and losses incurred or suffered by Turbo Staff as a result of any default under these Terms.
12.3 to treat all sums due or to become due from the Client as immediately due and payable; and
12.4 to cancel or suspend the provision of Services and to withhold further provision of Services.
13.1 Turbo Staff may terminate this Agreement immediately in writing to the Client if:
13.2 The Client may terminate this Agreement immediately in writing to the Client if:
13.3 Turbo Staff or the Client may terminate the Agreement without cause by giving the other party one months’ written notice.
13.4 Termination of this Agreement shall be without prejudice to other rights and remedies of Turbo Staff arising out of any default that occurs before the termination and shall be without prejudice to any claim for Fees payable as at the date of termination.
13.5 the Client is in arrears for more than 10 Business Days after any payment by the Client has become due,
13.6 the Client has breached any of the terms of this Agreement; or
13.7 the Client enters into liquidation, whether compulsorily or voluntarily, or becomes subject to the appointment of a receiver.
13.8 Turbo Staff has breached any of the terms of this Agreement; or
13.9 Turbo Staff enters into liquidation, whether compulsorily or voluntarily, or becomes subject to the appointment of a receiver.
13.10 Turbo Staff has notified the Client of updated Terms in accordance with clause 2.4 and the Client notifies Turbo Staff that it does not wish to be bound by the updated Terms within 10 Business Days of notification of the updated Terms by Turbo Staff.
14. Privacy and Confidentiality
14.1 The Client acknowledges that information supplied by Turbo Staff to the Client about the Contracted Workers is supplied in accordance with the Privacy Act 2020.
14.2 The Client agrees to maintain the confidentiality and privacy of all information provided by Turbo Staff to the Client about:
14.3 The Client agrees to Turbo Staff disclosing information about the Client to prospective Contracted and Permanent Workers and third parties that Turbo Staff may engage to assist it to provide the services under this Agreement.
14.4 Turbo Staff (including but not limited to the Fees payable under this Agreement); and
14.5 the Contract Workers (including but not limited to the fact that the Workers may be looking for work) and agrees that this obligation will survive termination of the Agreement.
15. Dispute Resolution
15.1 Mediation: In the event that a dispute of difference between the parties arising out of or in connection with these Terms is not resolved by negotiation between the parties, the matter may be referred to mediation by any party by written notice.
15.2 Arbitration: If a dispute is not settled under clause 19.1, then the dispute will be submitted to, and settled by, arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996 or any Act passed in substitution. The arbitrator will be appointed by the parties or failing agreement within five working days after the request to appoint an arbitrator by one party to the other, the arbitrator will be appointed by the president for the time being of the New Zealand Law Society.
16.1 Neither party shall assign its rights under these Terms of the Agreement without the prior written consent of the other party.
16.2 No waiver of any breach of these Terms shall be deemed to be a waiver of any other or any subsequent breach. The failure of either party to enforce any provision of the Agreement or these Terms at any time shall not be interpreted as a waiver of the provision.
16.3 The Agreement, these Terms and any specifications annexed to it constitute the entire agreement between the parties and shall supersede all previous negotiations, commitments and/or writings. Any subsequent written variation signed by both parties may be added to and shall then form part of the Agreement or these Terms, as applicable.
16.4 Any dispute arising out of these Terms shall be settled by mediation and, failing which, arbitration, with the parties to seek the assistance of the President of the local branch of the New Zealand Law Society if an appropriate mediator or arbitrator cannot be appointed by agreement.
16.5 Neither party shall be liable for failure to perform its obligations if the failure results from force majeure, act of God, act of nature including but not limited to earthquakes, aftershocks, snow, fire, explosion, industrial dispute, act of Government such as a change in legislation, regulation, or order made under legislative authority, or anything beyond the party's control.
16.6 These Terms may be signed in multiple counterparts, each of which will be deemed an original, and all such counterparts will constitute the same agreement.
The Agreement and these Terms are governed by the laws of New Zealand.