Dream Nannies Website Terms & Conditions of Use
Terms and Conditions
1 DEFINITIONS.
In these Terms and Conditions (Terms), the following definitions apply:
Agency: Dream Nannies Pty Ltd;
Application: a request to apply as a Candidate from the Client to the Agency submitted verbally or by way of a Candidate Application Form;
Candidate: any nanny, au pair, mother’s help, housekeeper, or other child care professional introduced to the Client by the Agency;
Candidate Application Form: a form completed provided by the Agency and completed by the Client which sets out the Client Requirements;
Client: any person or family in Australia or third party appointed by such people to represent them, who engage the Agency either through written or verbal instruction and request that the Agency introduce the Client to a Candidate;
Client Requirements: the requirements that the Client has in respect of the Candidate, including, without limitation, skills, experience, employment history, working hours and salary expectations;
Contract: the contract between the Agency and the Candidate for the provision of Placement services incorporating these Terms as set out in clause 2;
Engagement: means the employment, engagement or use of the Candidate by the Client, or any third party to whom the Client has introduced the Candidate, on a permanent or short-term basis under any form of contract or relevant agreement;
Introduction: means the introduction of a Candidate to a Client;
Placement: a written or verbal agreement between the Client and the Candidate that the Client will employ or use the services provided by the Candidate. Placement occurs as soon as the Candidate agrees to the Client’s offer of employment and shall have occurred regardless of whether or not a written contract is subsequently entered into;
Registration: means the registration provided by the Agency to the Candidate upon acceptance by the Agency of the Registration Form in accordance with these Terms;
Registration Form: means the form to which these Terms are attached requesting Registration and setting out, amongst other things, the Candidate’s details and requirements for Engagement;
2 CONTRACT BETWEEN THE CANDIATE AND THE AGENCY
- 2.1The Application constitutes an offer by the Candidate to use Introduction and Placement services from the Agency in accordance with these Terms. These Terms constitute the Contract between the Agency and the Candidate and are deemed to be accepted by the Candidate when the Agency confirms acceptance of the Registration Form verbally in writing or by email to the Candidate.
- 2.2The Contract may be entered into verbally or via written instruction.
- 2.3The Contract constitutes the entire agreement between the parties. The Candidate acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Agency which is not set out in the Contract.
- 2.4No variation or alteration to these Terms (including any special terms and Terms agreed between the parties) shall be binding unless the details of such variation are agreed between the Agency and the Candidate and are set out in writing by the Agency stating the date on or after which such varied terms shall apply.
- 2.5To the extent permitted by law, any condition or warranty which would otherwise be implied in these Terms is hereby excluded.
- 2.6This Agreement does not give rise to a contract of employment between the Agency and the Candidate nor shall it constitute a partnership or joint venture.
3 CANDIDATE OBLIGATIONS
- 3.1 The Candidate understands that acknowledges that the Agency has invested time, money and effort recruiting and screening Candidates in order to provide the Introduction.
- 3.2 The Candidate agrees and acknowledges that:
- (a) the Agency provides an introductory service only with the intention of making an Introduction of suitable Candidates to the Client;
- (b) it is the Client who employs the Candidate and the Agency does not employ any of the Candidates either directly or indirectly;
- (c) the Agency does not exercise any control over the Candidate during the Introduction or the Candidate’s conduct during the Placement;
- (d) the final decision to enter into contract with a Candidate is the sole responsibility of the Client;
- (e) the Client is responsible for satisfying itself to the suitability of the Candidate and to investigate references provided by the Candidate before offering the Candidate a Placement; and
- (f) whilst the Agency will use all reasonable endeavours to refer suitable, qualified candidates to the Client, it does not guarantee the successful outcome or Client satisfaction with any Candidate.
- 3.3 The Candidate shall:
- (a) ensure that the Application is true and accurate in all respects;
- (b) before the commencement of the Registration, have provided the Agency with satisfactory evidence of their identity which shall include, but not be limited to, a copy of the Candidate’s passport, birth certificate, qualifications, visas and driving licence (if applicable). Where the Agency has been unable to meet the Candidate in person, the Candidate shall provide certified copies of the above;
- (c) If, in respect of any prospective employment, the Candidate is required by law, any professional body or by the Client to hold or have any experience, training qualifications and/or authorisations, the Candidate shall provide the Agency with:
- (i) up to date copies of such qualifications and/or authorisations; and
- (ii) the names of at least two referees (who are not relatives of the Candidate) who the Candidate agrees that the Agency may approach at any time for the purpose of obtaining references about the Candidate;
- (d) obtain or assist with obtaining any medical certificates, work permits or other approvals necessary for the Candidate to work in Australia;
- (e) co-operate with the Agency in all matters relating to the Introduction and the Placement and be honest and reliable in dealings with Clients;
- (f) consent to the disclosure of all relevant information (which is reasonably required to progress any application) including but not limited to copies of qualifications, authorisations and/or references, by the Agency to the Client;
- (g) attend any interview arranged by the Agency with the Client with satisfactory evidence of their identity as well as all relevant documentation relating to their experience and qualifications;
- (h) immediately inform the Agency should there be any reason or circumstance under which it would be detrimental to the interests of the Agency, the Client or the Candidate for the Candidate to take up a particular position with a Client;
- (i) inform the Agency of any interviews arranged between the Client and the Candidate;
- (j) shall notify the Agency and the Client as soon as is reasonably practicable, together with the reasons for why the Candidate is unable to take up such Engagement;
- (k) notify the Agency immediately if there is any reason why they are unable to continue with Engagement with the Client or if they no longer wish the Agency to seek suitable employment for them;
- (l) not engage in any conduct which is detrimental to the interests of the Agency, would negatively affect the Agency’s relationship with the Client or is likely to bring the Agency into disrepute; and
- (m) comply with the Fair Work Act 2009 and any other relevant Australian legislation in place in respect of any Placement including the terms of any Award that may be applicable to you.
- 3.4 If the Candidate is an Au Pair applying for an Au Pair Placement, they acknowledge that:
- (a) Candidates (Au Pairs) are only expected to perform a combination of child care and light housework duties in exchange for board and a weekly allowance;
- (b) Au Pair placements are for 6 months if the Candidate wishes to extend their stay after 6 months they must apply to extend their Working with Holiday Visa before the 6-month term has expired as Working holiday Visa holders can only work for 6 months for the same employer, unless they request an extension;
- (c) Clients are responsible for paying Candidates directly;
- (d) Any Candidate (Au Pair) taking part in a cultural exchange program is not an employee and does not have a contract with the the Client or with the Agency, however, there are certain situations where the Candidate (Au Pair) can be considered an employee or a contractor and you acknowledge that the Agency has recommended that the Client seeks advice regarding their responsibilities with the employment regulator and the taxation office.
- 3.5 If, following an introduction from the Agency to the Client with respect to the Candidate, the Candidate receives an offer of employment or Engagement to work for or with a Client introduced by the Agency, the Candidate shall inform the Agency immediately and provide the Agency with full details of the offer including a copy of the offer letter/contract of employment if requested.
- 3.6 The Candidate is under no obligation to accept any referral or job to which he / she has been introduced by the Agency, and the Agency is under no obligation to procure interviews or job offers on his / her behalf.
4 OBLIGATIONS OF THE AGENCY
- 4.1 The Agency will, subject to the Candidate’s Registration Form and these Terms, act as the Candidate’s agent and use all reasonable endeavours to negotiate and conclude agreements with Clients in respect of procuring Engagements.
- 4.2 The Agency shall provide the Registration with reasonable skill, care and in accordance with the recognised codes of practice and statutory obligations.
- 4.3 The Agency shall take all reasonable steps to ensure Clients are professional and courteous but cannot be held responsible for the conduct of any third parties.
- 4.4 An offer of employment by a Client is not made until written details are received from the Client. The Agency does not accept any responsibility and shall not be liable for any loss suffered by the Candidate in connection with the acceptance of such offer, this Agreement or otherwise (including, but not limited to loss caused by reason of the Candidate’s decision to resign from his/her current employment or any existing Engagement before or after receipt of the Client’s written offer).
5 FEES
- 5.1 The Agency will not charge a fee to the Candidate for acting upon its behalf in order to secure, or attempt to secure, an Engagement. The Agency may charge a fee for Overseas Programs where services are included.
6 TERMINATION
- 6.1 The Agreement shall continue until the agency services have been provided in accordance with the terms of the Registration Form or any subsequent date as mutually agreed in writing by both parties or until terminated by either party in accordance with these Terms.
- 6.2 The Agency may terminate this Registration without notice at any time and for any reason at the Agency’s sole discretion.
- 6.3 The Candidate shall be entitled to terminate the Registration at any point by giving notice in writing to the Agency or if the Agency fails to comply with any aspect of these Terms and this failure continues for a period of 4 weeks after notification of non-compliance is given.
- 6.4 Either party may terminate the Agreement by notice in writing to the other if the other party commits a material breach of these Terms which cannot be remedied or, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so.
- 6.5 Any rights to terminate the Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of the Agreement as at the date of termination.
7 LIMITATION OF LIABILITY AND INDEMNITY
- 7.1 The Agency accepts no liability for any loss, damage, expense or compensation suffered or incurred of any nature by the Candidate, arising directly or indirectly from an act or omission by any Client introduced to the Candidate by the Agency.
- 7.2 The Candidate hereby indemnifies and must keep indemnified the Agency from and against all liability, losses, damages, expenses and costs (including own solicitor’s costs) caused by or arising out of any failure or omission, whether negligent or otherwise, of the Candidate to observe these Terms or the terms of the Contract.
- 7.3 This clause 7 shall survive termination of the Contract.
8 PRIVACY
- 8.1 The Candidate must read and understand the Privacy Policy of the Agent and the Candidate acknowledges that they have been provided with a copy of the Agent’s Privacy Policy.
9 GDPR COMPLIANCE
- 9.1 This clause 9 applies to Candidates that are European Union (EU) individuals. The European Union General Data Protection Regulation (the GDPR) contains new data protection requirements that will apply from 25 May 2018 and this clause 9 states how the Agency protects the personal data and privacy of Candidates that are EU individuals. For the purposes of this clause “Data Protection Legislation” means the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and and capitalised definitions in this clause refer to definitions in that regulation.
- 9.2 The Candidate acknowledge that for the purposes of the Data Protection Legislation, the Candidate is the Data Controller and the Agency is the Data Processor.
- 9.3 The Agency shall, in relation to any Personal Data processed in connection with the performance by the Agency of its obligations under Terms:
- (a) process that Personal Data only on the written instructions of the Client for the purposes of carrying out a childcare search in accordance with the terms of this agreement unless the Agent is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Agent to process Personal Data (Applicable Laws). Where the Agent is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Agent shall promptly notify the Candidate of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Agent from so notifying the Client;
- (b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
- (d) assist the Candidate in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- (e) notify the Candidate without undue delay on becoming aware of a Personal Data breach;
- (f) at the written direction of the Candidate, delete or return Personal Data and copies thereof to the Candidate on termination of the agreement unless required by Applicable Law to store the Personal Data; and
- (g) maintain complete and accurate records and information to demonstrate its compliance with this clause.
10 GENERAL
- 10.1 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
- 10.2 Notices. Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Placement Request or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
- 10.3 Severance. If any term or provision of these Terms is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms had been agreed with the invalid, illegal or unenforceable provision eliminated.
- 10.4 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
- 10.5 Assignment. The Client shall not be entitled to assign its rights or obligations or delegate its duties under this Contract without the prior written consent of the Agency.
- 10.6 Waiver. The failure by either party to enforce at any time or for any period any one or more of the Terms herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms.
- 10.7 Governing Law. These Terms are governed by and construed in all respects in accordance with the law of Queensland and the Client agrees to submit to the exclusive jurisdiction of the courts of Queensland.