Terms and Conditions
GOLDEN EAGLE SOLUTIONS PTY LTD
TERMS AND CONDITIONS OF ENGAGEMENT
A. The Company is in the professional services business and delivers, among others, the
Operations and Delivery Management (COO)
Process Improvement (eTOM, ITIL, Six Sigma [DMAIC], Lean)
Program/Project Management (PMP) (Toll Gates, Steering Groups)
Performance Management & Bench-marking
Business Continuity Management
Internet of Things (IOT) Solutions and Services
B. The Parties had prior negotiations and discussions whereby the Company will provide
services to the Client in accordance with the terms and conditions of this Agreement.
IT IS AGREED:
1. Definitions and Construction
1.1. In this Agreement, the following terms shall have the following meanings:
Confidential Information means all information and documentation of each party whether
disclosed to or accessed by the other in connection with this Agreement, including (a) with
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respect to the Client, the Client’s Intellectual Property and all other information of the Client
or its clients, providers, suppliers, contractors and other third parties doing business with
the Client; (b) with respect to both the Client and the Company, the terms of this Agreement;
and (c) with respect to the Company, the Company’s Intellectual Property, any information
or documentation relating to the Company’s business, business relationships, financial
affairs, including financial reports, work plans, and structures, marked or identified as
confidential, or if visually or orally disclosed, will be identified as confidential at the time of
disclosure and then summarized in the Company’s writing provided to the Client within thirty
(30) days following such visual or oral disclosure; provided, however, that except to the
extent otherwise provided by law, the term “Confidential Information” will not include
information that (1) is independently developed by the recipient, as demonstrated by the
recipient’s written or electronic records, without violating the disclosing party’s proprietary
rights, (2) is or becomes publicly known (other than through unauthorized disclosure), (3) is
disclosed by the owner of such information to a third party free of any obligation of
confidentiality, or (4) is already known by the recipient at the time of disclosure, as
demonstrated by the recipient’s written or electronic records, and the recipient has no
obligation of confidentiality other than pursuant to this Agreement.
Intellectual Property includes: (a) copyright; (b) inventions (including patents); (c)
trademarks; (d) designs; (e) business names and domain names; (f) business and company
logos; (g) secret processes; (h) formulae; (i) computer systems software; (j) information
databases; (k) client lists and information databases; (l) distribution agreements; and similar
industrial and commercial property whether or not registered or registrable (and includes
any right to apply for the registration of those rights and also includes all renewals and
extensions of them) and whether or not protected by legislation.
New Service means any service that is outside the scope of the Services.
Services mean the services to be provided by the Company to the Client as referred to in
clause 2 and as specifically enumerated in the Schedule under Scope of Services.
Term is as defined in Clause 5.1.
1.2. Headings are for reference and convenience only and will not be considered in the
interpretation of this Agreement.
1.3. Words denoting the singular include the plural and vice versa, words denoting individuals or
persons include bodies corporate and vice versa, references to documents or agreements
also mean those documents or agreements as changed, novated or replaced, and words
denoting one gender include all genders.
1.4. Unless otherwise specified, a reference to dollar or to currency means a reference to
1.5. References to any statute or statutory provision include that statute or statutory provision as
amended, extended, consolidated or replaced by subsequent legislation and any order,
regulation, instrument or other subordinate legislation made under the relevant statute.
1.6. Grammatical forms of defined words or phrases have corresponding meanings.
1.7. Parties must perform their obligations on the dates and times fixed by reference to the capital
city of New South Wales.
1.8. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday
in the place in which it is to be done, then it must be done on the next business day.
1.9. References to a party are intended to bind their executors, administrators and permitted
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1.10. Obligations under this agreement affecting more than one party bind them jointly and each
of them severally.
2. Scope of Services
2.1. The scope of our engagement is as stated in the Schedule under “Scope of Services”.
2.2. The employees of the Company assigned by the Company to the Client are the Company’s
employees and nothing herein will be construed as creating the relationship of principal and
agent, and/or employer-employee between the Client and the Company or any of the
Company’s Employees, subject to exceptions as provided under common law.
3. Warranties by the Company
The Company warrants that it:
3.1. is a legitimate, and registered independent job contractor, has substantial capital, tools,
equipment and investment necessary to carry out its obligations under this Agreement with
due care and skill.
3.2. will provide uninterrupted, efficient and competent Services as may be reasonably expected.
The Client agrees that the Company will not be held liable for the non-completion or
interruption of the Services when the same is due to force majeure, acts of God or any
fortuitous event, such as but not limited to fires, flood, earthquakes, volcanic eruptions,
typhoons, or other causes beyond the Company’s control which will render the performance
of this Agreement impossible.
3.3. The Company will perform and deliver the Services with due care and skill and in full
compliance with the laws of the state in which the Services are performed and the laws of
the Commonwealth of Australia.
4. Obligations of the Client
4.1. The Client will not require the Company’s Employees to perform functions that are being
performed by the Client’s regular employees, that are in addition or as substitute to such
regular employee’s assigned functions, and that are not within the Scope of Services agreed
4.2. The Client will ensure that the Company will be able to freely and without any impediment
exercise control and supervision over the Company’s Employees.
4.3. The Client will hold the Company harmless from and against any losses suffered, incurred
or sustained by the Company or to which the Company becomes subject, resulting from or
arising out of any third-party claim to the extent caused or contributed to by the act, or
omission or negligence of the Client.
5.1. This engagement shall commence upon execution of this Agreement and shall continue in
full force and effect on the earlier of: (a) the Termination Date stated in the Schedule; or (b)
the date this Agreement is terminated in accordance with Clauses 5.2 and 5.3.
5.2. Either party may terminate this Agreement for non-compliance with any provision of this
Agreement upon written notice provided that the party in breach is given ten (10) business
days from receipt of written notice to remedy the said breach.
5.3. Either party may also terminate for any cause upon four (4) -week advanced notice in writing
to the other party. Any termination of this Agreement will not prejudice the rights or claims
of either party which may have accrued prior to such termination. If the Client terminates
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this Agreement under this clause, then the Client shall pay the Company the Fees in full
regardless of whether Services has been started, or has been performed in part or in full,
by the Company.
5.4. The parties must in the performance of all their obligations to each other act in good faith,
cooperate and act reasonably towards each other.
6. Fees and payment terms
6.1. For and in consideration of the Services, the Client will pay the Company an agreed Fee
detailed in the Schedule.
6.2. The currency of payment is Australian Dollars.
6.3. The Fee will be payable by the Client within Seven (7) calendar days from receipt of the
Company’s tax invoice. Any overdue amount will automatically bear interest at the rate of
12% per annum (compounding) until complete payment is made. The Company accepts all
major credit cards, but will pass on any merchant fees to the Client.
6.4. Invoices for the services rendered are issued on the dates stated in the payment schedule
in the Schedule, and shall be payable in accordance with clause 6.3, unless otherwise
agreed by both parties.
6.5. In the event of a dispute, the Client will pay the Fee to the Company and the Company will
continue to perform its obligations under this Agreement. The parties will cooperate in good
faith to resolve any disputed payment.
6.6. The Client will pay all Fees to the Company, exclusive of any applicable sales, use, gross
receipts, excise, GST, withholding, personal property or other taxes, levies or similar
charges which will be the responsibility of the Client. In the event that a sales, use, excise,
gross receipts, or services tax, GST, levy or similar charge is assessed on the provision of
the Services, however levied or assessed, the Client will bear and be responsible for and
pay the amount of any such tax or levy and will hold the Company harmless from and against
any losses suffered, incurred or sustained by the Company or to which the Company
becomes subject as a result of such levy or assessment. The parties will promptly furnish to
each other, as necessary, the official receipt of any payment made (of the Fee) to the
appropriate taxing authority.
6.7. The Company will retain records and supporting documentation sufficient to document the
Services, and the Fees paid or payable by the Client under this Agreement for a period of
seven (7) years following the effective date of termination.
6.8. Special works, extra or additional services not contemplated in this Agreement or New
Services will be covered by special assessment to be mutually agreed upon by the parties.
6.9. Out of pocket expenses incurred by the Company on the Client’s behalf and with the Client’s
authority will be reimbursed by the Client.
6.10. Nothing in this clause 6 will limit the Client’s obligation to pay any Fees due the Company
under this Agreement; provided, however, that if the Company fails to provide the Services
in accordance with this Agreement due to the occurrence of force majeure, acts of God or
any fortuitous event, such as but not limited to fires, flood, earthquakes, volcanic eruptions,
typhoons, or other causes beyond the Company’s control, the Fees shall be adjusted in a
manner such that the Client is not responsible for the payment of any Fees (or other
charges) for Services that the Company fails to provide.
6.11. The parties will have no right to set-off any amount owing to the other.
7. New Services
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7.1. The Client may from time to time during the Term request that the Company performs a
New Service. On receipt of the request, the Company will provide the Client with a written
proposal for such New Service, which will include, if applicable:
7.1.1. a description of the services, functions and responsibilities that the Company
anticipates performing in connection with such New Service;
7.1.2. a schedule for commencing and completing such New Service;
7.1.3. the Company’s prospective charges for such New Service, including a detailed
breakdown of such charges; and
7.1.4. such other information requested by the Client.
7.2. The Company will not begin performing any New Service until the Client has provided the
Company with authorization to perform the New Service and entered into a new work order,
to be covered by the terms and conditions of this Agreement as may be modified by the new
8. Intellectual Property
8.1. This Agreement does not affect the rights the parties may exercise regarding their respective
Intellectual Property and data.
8.2. This Agreement is not intended to change any of the parties’ or third parties’ entitlement to
intellectual property rights. If not otherwise agreed, each of the parties or issuers of the
parties’ licenses is exclusively entitled to the intellectual property rights of all its works,
including software and documentation, including all supplements, changes, improvements
and derived works.
8.3. The Client grants to the Company and the Company’s employees a nonexclusive,
nontransferable, limited right to access and use, to the extent permissible under applicable
third-party agreements, the Client’s Intellectual Property, solely for the purpose of
performing the Services.
8.4. The Client’s Intellectual Property is the property of the Client, and the Company agrees that
it will not use any of the Client’s Intellectual Property without the Client's approval. The
Company agrees not to register any of the Client’s Intellectual Property.
8.5. The Company’s trademarks, service marks and trade names are the property of the
Company, and the Client agrees that it will not use any of the Company’s trademarks,
service marks or trade names without the Company’s approval. The Client agrees not to
register any of the Company’s trademarks, service marks or trade names.
8.6. The Company shall own the Intellectual Property rights in all works created by the Company
by virtue of the Service, and shall retain the exclusive right to make reproductions of such
8.7. Each of the parties (“the Indemnifying Party”) indemnifies the other party (“the
Indemnified Party”) against rights of action by third parties on the grounds that use by the
Indemnified Party of the software, hardware or other matters supplied or made available by
the Indemnifying Party violates the intellectual property rights of the relevant third party,
except in so far as the violation was caused by a failure by the Indemnified Party to meet its
obligations under this Agreement. This indemnification is subject to the condition that the
Indemnified Party notifies the Indemnifying Party as soon as reasonably practical in writing
of the third party’s claim, and leaves handling of the claim, including any settlement, to the
9.1. The recipient party will hold all Confidential Information relating to or obtained by the
disclosing party in strict confidence. Except as permitted by this Agreement, neither party or
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its agents will disclose, publish, release, transfer or otherwise make available Confidential
Information of, or obtained from the other in any form to, or for the use or benefit of, any
person or entity without the disclosing party’s consent. Each party will, however, be
permitted to disclose relevant aspects of the other’s Confidential Information to its officers,
professional advisors, subcontractors and employees, provided that (a) such persons or
entities have executed a confidentiality agreement substantially similar to this clause, and
(b) disclosure is reasonably necessary for the performance of its duties and obligations
under this Agreement. In all cases, however, the parties will take all reasonable measures
to ensure that Confidential Information of the disclosing party is not disclosed in
contravention of the provisions of this Agreement by such officers, directors, agents,
professional advisors, contractors, subcontractors and employees. The duty of
confidentiality applies for the term of this Agreement and for seven (7) years from the
termination of this Agreement.
9.2. The confidentiality obligation as laid down in this clause does not apply to Confidential
Information of which its disclosure is required on the basis of any statutory provision or
regulation, a request from a regulator, or within the context of legal proceedings; all subject,
if reasonably possible, to the prior written notification to the other party and to consultation
in good faith regarding the contents of the disclosure.
9.3. At the discretion of the disclosing party, in the event this Agreement is terminated the
recipient party must destroy the Confidential Information it received during the performance
of this Agreement, including copies made by the recipient party and digital or other
documents produced on the basis of the Confidential Information, or return such to the
disclosing party, without prejudice to each party’s right to retain information in so far as
necessary in compliance with a statutory obligation or a regulation or in accordance with
9.4. Without limiting either party’s rights in respect of a breach of this clause, each party will:
9.4.1. promptly notify the other party of any unauthorized possession, use or knowledge,
or attempt thereof, of the other party’s Confidential Information by any person or
entity that may become known to such party;
9.4.2. promptly furnish to the other party full details of the unauthorized possession, use
or knowledge, or attempt thereof, and assist the other party in investigating or
preventing the recurrence of any unauthorized possession, use or knowledge, or
attempt thereof, of Confidential Information;
9.4.3. cooperate with the other party in any litigation and investigation against third
parties deemed necessary by the other party to protect its proprietary rights; and
9.4.4. Promptly use its best efforts to prevent a recurrence of any such unauthorized
possession, use or knowledge, or attempt thereof, of Confidential Information.
Each party will bear the cost it incurs as a result of compliance with this clause.
10. Subcontracting and assignment
10.1. The Company is authorised to subcontract only if prior written consent is obtained from the
Client. The Client will not withhold such consent on unreasonable grounds, but may attach
reasonable conditions to its consent. No consent is required for subcontracting to the
Company’s related company or to a merged company provided that such subcontractors
are subject to complying with the terms of this Agreement (in particular, confidentiality). For
the avoidance of doubt, the Client acknowledges and agrees that the Company may
subcontract the Services to any of its affiliates/related companies whether onshore or
offshore. With regard to third parties engaged by it, the Company bears full responsibility for
proper performance of the obligations under this Agreement.
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10.2. A party cannot assign its rights and obligations under this Agreement without prior written
consent from the other party, which consent will not be withheld on unreasonable grounds.
However, the other party is entitled to attach reasonable conditions to its consent. No
consent is required for assignment to a party’s related company or to a merged company.
11.1. Any notice to be served on a party pursuant to this Agreement may be effectively served:
11.1.1. by personally delivering the same to any officer of that party; or
11.1.2. by personally delivering it to the registered office of that party as shown as the
address of that party at the beginning of this Agreement; or
11.1.3. by sending it by facsimile transmission or email addressed to that party at the
facsimile number or email address as provided to the other party.
11.2. Any address to which notices under this Agreement may be served on any party may be
amended by that party giving notice of the change.
12. Dispute Resolution
12.1. If a dispute arises between the parties, the complainant must not commence any court or
arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it
has first complied with this clause:
The complainant must inform the respondent in writing of the following:
(i) The nature of the dispute;
(ii) The outcome the complainant desires, and
(iii) The action the complainant believes will settle the dispute.
12.1.2. Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to
resolve the dispute by mutual negotiation within 14 business days.
Any unresolved dispute or difference whatsoever arising out of or in connection with
this contract shall be submitted to mediation under the Mediation Rules of the
12.1.4. Survival of this clause
This clause survives termination of this agreement
12.2. Any and all disputes, controversies, and claims arising out of, or relating to this Agreement,
which cannot be settled amicably by the parties will be filed in the proper court or tribunal of
the State of New South Wales, Australia, to the exclusion of all other courts and venues.
The parties submit to the exclusive jurisdiction of the courts or tribunals of the State of New
South Wales, Australia. This Agreement shall be construed, interpreted, in accordance with
and governed by New South Wales and Australian laws, regulations and ordinances.
13. Miscellaneous provisions
13.1. If any of the provision or stipulation contained in this Agreement or any document executed
in connection herewith shall be declared invalid, illegal, or unenforceable by a competent
court or agency, the remaining provisions contained herein shall not be in any way affected
or impaired. If a provision proves to be invalid, the parties will strive to replace it by a
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provision that is not invalid and that is in accordance with the invalid provision to the extent
13.2. If any matter is not regulated in this Agreement, the parties will strive to regulate it in a
supplement to this Agreement.
13.3. This Agreement will not be varied except in writing signed by duly authorised representatives
of the parties.
13.4. The Company will be free to offer and provide services covered by this Agreement to other
persons, companies, to the extent permissible by law and this Agreement.
13.5. No delay or omission by either party to exercise any right or power it has under this
Agreement will impair or be construed as a waiver of such right or power. A waiver by any
party of any breach or covenant shall not be construed to be a waiver of any succeeding
breach or any other covenant. All waivers must be signed by the party waiving its rights.
13.6. This Agreement, including its schedule/s, constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes all prior communications or
agreements, written or oral, and is intended to be a complete and exclusive statement of
the terms and conditions between the parties.
13.7. The parties agree that the terms and conditions of this Agreement are the result of
negotiations between the parties and that this Agreement will not be construed in favor of
or against any party by reason of the extent to which any party or its professional advisors
participated in the preparation of this Agreement.
13.8. Notwithstanding termination of this Agreement for any reason, all clauses of this Agreement
that are expressly intended to continue to be binding and enforceable will continue to be
binding and enforceable. In addition, all obligations to pay any sum due prior to termination,
keep Confidential Information confidential, and all covenants not to compete, or solicit
customers or employees and/or return and not use Intellectual Property will continue to be
fully binding and fully enforceable.
13.9. This agreement may be executed in any number of counterparts each of which will be an
original but such counterparts together will constitute one and the same instrument and the
date of the agreement will be the date on which it is executed by the last party.
13.10. The officers or persons who sign this Agreement on behalf of their respective corporate
entities jointly and severally guarantee all obligations of their respective corporate entities
under this Agreement; and jointly and separately indemnify the other party in respect of any
breach or any default under this Agreement.
13.11. Each party is to bear its own costs in relation to the preparation of this Agreement.