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Solutions Agreement

by Alan Milligan last modified Oct 09, 2014 12:02 PM
The arrangement between us and you for client engagements.
1 Definitions
2 Scope of Contract
3 The Solution
4 Charges
5 Payments
6 Confidentiality
7 Indemnity
8 Termination
9 Notes
10 Miscellaneous
11 Governing Law and Jurisdiction

1 Definitions
 

Client means the person, firm or company with whom the Solutions Agreement is entered into.
Company means The Last Bastion Network Pty Ltd.
Solution means the software deliverable(s), installation, pre and post sales software support, maintenance agreements, and professional services necessary to solve the Client's business requirement.
Confidential Information has the meaning given thereto in section 6.1 of these terms.
Solution Schedule means the schedule entered into between the Client and the Company in relation to meeting the Solution.
Intellectual Property Rights has the meaning given thereto in section 7 of these terms.
The Network means the Company's internet system, as accessible from the au.last-bastion.net domain.

 
2 Scope of Contract
2.1

The Company agrees that it shall not, and it shall procure that it's representatives shall not, at any time represent or hold itself out as being the partner, agent or representative of the Client and it shall procure that it's representatives shall not, have any authority or power to bind the Client or to contract or enter into any commitment in the name of the Client for any purpose whatsoever unless explicitly stated in the Solution Schedule.

 
3 The Solution
3.1

The Solution involves focusing elements of software procurement, creation, customisation, and professional services to enhance the Client's business.

3.2

The Solution is fully represented in the associated Solution Schedule. The Solution Schedule is a dynamic document, and the Company undertakes to ensure full transparancy, disclosure, and revision history of this document to the full satisfaction of both parties.

3.3

Either party may take the lead in the operational management of the Solution.

3.4

The Solution Schedule shall clearly specify the full nature of the Company's resources required to implement the Solution.

3.5

The Solution Schedule is mutually agreed between the Client and the Company and may or may not be defined in advance of ratifying this Contract.

 
4 Charges
4.1

Based upon the Solution Schedule, deliverables will be priced according to their nature and mutually agreed by both parties before being undertaken by the Company.

 
5 Payments
5.1

All payments made pursuant to section 4 above are inclusive of sales tax.

5.2

All payments will be made direct to the Company's bank account in accordance with instructions contained in the relevant invoice or such other details as it may specify from time to time.

5.3

In lieu of a separate Payments Schedule, the Company will invoice the Client on a monthly basis and unless otherwise agreed, will expect payment within two weeks of the invoice date.

 
6 Confidentiality
6.1

Both parties undertake that they shall not, and shall procure that it's representatives shall not, disclose, divulge or communicate to any person any confidential information (Confidential Information) which may be obtained or received during the term of this Contract or as a result of the arrangements contemplated by this Contract, except as required by each party in connection with the performance of this Contract or as required by law. Any such Confidential Information shall be used only to meet the Solution Schedule.

Confidential Information shall include all information or data of whatever kind and in whatever form which the Company knows or ought reasonably to know to be proprietry or confidential in nature and shall include, without limitation, any information which is not in the public domain and which relates to any client or the business, activities or affairs of the Client.

 
7 Warranties

The Company warrants and undertakes:-

7.1

to perform the Solutions Agreement in accordance with this Contract, comply the the Client's reasonable requests and use best endeavours to promote the Client's interests;

7.2

that in entering into this Contract the Company is not, and will not be, in breach of any express or implied obligation to any third party.

 
8 Intellectual Property
8.1

The Intellectual Property Rights of The Network resources, made available in the course of meeting the Solution Schedule is the exclusive property of the Company. These rights are reserved. The Client's marketing and/or exploitation of such documents or other materials is prohibited unless explicitly covered in the Solutions Schedule or another agreement.

8.2

Where open source technologies are applied in the Solution Schedule, the property rights are protected by the licencing agreement pursuant to that technology. In the event of enhancing or modifying software from an open source technology, the Company reserves the right to contribute these modifications to that developer community at it's sole discretion.

8.3

At all times, the Client will be made aware which Last Bastion Network software modules are being employeed to meet the Solution Schedule. Their distribution will be coordinated with the Client's Data Security department, and the Company guarantees their operability with the BastionLinux operating system.

8.4

For the purposes of this section, Intellectual Property Rights included copyrights, registered designs, patents, trade marks, service rights (whether registered or unregistered), semiconductor topography rights, applications for any of the above, rights to extract data, trade secrets, rights of confidence and all other similar rights recognised in any part of the world.

8.5

The intellectual property of any software developed by the Company in the course of fulfilling the Solution Schedule vest in the Client. Any modifications to any supporting Bastion software remain the sole property of the Company.

 
9 Indemnity

The Client will indemnify the Company and keep the Company indemnified against all and any liability, loss, damage, costs and expenses which the Company or any third party may incur or suffer, whether direct or consequential (including, without limitation, any economic loss or loss of profits, business or goodwill) i connection with any and all of the following:-

9.1

Any disputes, contractual, tortious or other claim or proceedings brought against the Company by a third party alleging infringement of its Intellectual Property Rights by the reason of the use, possession, marketing or exploitation of any of the software, documentation or any other materials produced by the Client in carrying out the Solution Schedule or pursuant to this contract;

9.2

any breach of confidence by the Client

 
10 Termination
10.1

This Contract may be terminated at any time by either party on giving not less than fourteen days' notice to the other party.

10.2

This Contract may be terminated at any time by the Company with immediate effect upon notice to the Client if:-.

10.2.1

there is a material or persistent breach of any term of this Contract by the Client or it's agent(s) (as the case may be) which breach (if capable of remedy) has not been remedied by the Client or it's agent(s) (as the case may be) within seven days of receipt by the Client of a notice from the Company; or

10.2.2

the Client becomes insolvent, passes a resolution for its winding up, has a receiver appointed or enters into arrangements with creditors.

10.3

Termination of this Contract shall not release either party from any liability which has already accrued to the other party at the time of termination or which may thereafter accrue in respect of any act or omission prior to such termination. The provisions of Sections 1,6,7,8,9,10 and 14 shall survive termination of this Contract without limit in time.

 
11 Assignment
11.1

Neither party shall assign or transfer any of its rights or obligations under this Contract or purport to do any of the same, without the prior written consent of the other party.

 
12 Notices
12.1

Any notice to be given under this Contract shall be in writing and given by personal delivery or by email (followed by a postal hard copy) or by registered or recorded mail to the address of the relevant party notified for the purposes of this Contract or such other addresses as may have been previously notified by the relevant party to the other party for this purpose.

12.2

Any such notice shall, in the absence of earlier receipt, be deemed to have been duly given or made as follows:-

12.2.1

if sent by personal delivery, upon delivery at the address of the relevant party;

12.2.2

if sent by email, when dispatched in lieu of delivery status notifications to the contrary; and

12.2.3

if sent by first class prepaid registered or recorded mail, two clear days after the date of posting.

 
13 Miscellaneous
13.1

No omission, forbearance, indulgence or delay by either party in exercising any right, power or privilege hereunder shall impair such right, power or privilege or be construed as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or of any other right, power or privilege. The rights and remedies herein provided are cumulative with and not exclusive of any rights or remedies provided by law.

13.2

No waiver or variation of any term or condition of this Contract shall be effective unless made in writing and signed by the parties hereto.

13.3

Each provision of this Contract is to be construed separately and, even though the whole or any part of any provision may prove to be illegal or unenforceable, the other provisions of this Contract, and the remainder of the provisions in question, will continue in full force and effect.

 
14 Governing Law & Jurisdiction
14.1

This Contract shall be governed by and construed in accordance with the laws of The Commonwealth of Australia, and the Client agrees to submit to the jurisdiction of the Australian courts or to the jurisdiction of such other courts as the Company may choose.

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407 The Foundry
181 Lawson Street
Darlington, Sydney 2008
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