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Professional Services Agreement

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Professional Services Agreement

Last Revision: 10 Jun 2022

SCOPE

This Agreement establishes the terms and conditions, under which GLiNTECH will, from time to time, provide the Products and the Services to CLIENT. A Statement of Work or Purchase Order must be completed which references this governing document hereto known as “Agreement”.

This Master Professional Services Agreement ("Agreement") by and between GLiNTECH and CLIENT applies to all orders placed for GLiNTECH's professional services by CLIENT, or its corporate parent or subsidiaries, pursuant to Statements of Work (the "SOW(s)") in the form set forth in Exhibit A attached hereto and executed by the parties. Each SOW, upon execution thereof by the parties, shall be deemed incorporated into this Agreement by this reference and shall become a part hereof.

1. Services

  1. "Services" means the services described in any SOW executed by both parties during the term of this Agreement.
  2. The Products and Services the CLIENT requires GLiNTECH to supply and provide, from time to time, will be specified in Statements of Work.
  3. Each Statement of Work will be governed by and subject to the terms and conditions of this Master Agreement. In the event of any inconsistency between the terms and conditions contained in a Statement of Work and this Master Agreement, the terms and conditions in the Statement of Work will prevail to the extent of any inconsistency.

2. Fees and Payment

  1. The CLIENT shall pay fees and expenses in accordance with the terms of the specific SOW. Any estimate of charges for the Services is for informational purposes only and the actual fees payable by the CLIENT for any Services may be higher or lower than such estimate unless engaged under a fixed price. Unless otherwise set forth in a SOW, GLiNTECH shall invoice fortnightly for Services rendered and out-of-pocket expenses incurred during the preceding month. All invoices are due and payable thirty (30) days following receipt.
  2. Goods and Services Tax (GST): Unless otherwise indicated in the SOW, all payments applying to Services under the SOW are exclusive of any GST

3. Work Schedules; Personnel

  1. GLiNTECH may with prior agreement from the CLIENT, which will not unreasonably withheld, reassign personnel, or subcontract Services to any person or entity which, in GLiNTECH's judgement is competent to perform such Services. GLiNTECH shall use reasonable efforts to provide personnel in accordance with CLIENT's requested work schedules and to honor CLIENT's request, if any, for the assignment of specific individuals.

4. Responsibilities of CLIENT

  1. CLIENT shall designate a project manager who shall have authority to act for and on behalf of CLIENT in fulfilment of CLIENT's obligations hereunder, including, but not limited to:
    1. executing changes to SOWs, making decisions, approving plans, and granting requests on behalf of CLIENT in connection with the Services;
    2. making management decisions and providing personnel, as reasonably required by GLiNTECH, in order to facilitate the Services provided by GLiNTECH; and
    3. maintaining CLIENT's equipment in proper working order during the performance of Services. CLIENT shall complete in a timely manner any additional obligations and tasks set forth in a SOW. If CLIENT delays in providing necessary assistance or if GLiNTECH experiences other delays outside of its control in performing Services, then GLiNTECH shall adjust the schedule for Services accordingly, and shall inform CLIENT of any charges for additional work caused by such delays. Such additional charges shall reflect GLiNTECH's then-current time and materials rates. GLiNTECH shall give CLIENT prompt written notice of any delays caused by CLIENT.
    4. GLiNTECH must ensure that all such persons are aware of the confidentiality obligations imposed under this Master Agreement and agree to be bound by them personally. GLiNTECH must observe confidentiality in respect of the CLIENT at all times, including after the relationship with the CLIENT or an Affiliate ends (whether that relationship arises from this Master Agreement or otherwise) and the GLiNTECH will be responsible for ensuring that those of GLiNTECH's employees, officers and sub-contractors who have access to the CLIENT's confidential information comply with all of the obligations

5. Confidentiality

  1. By execution of this Agreement, the parties hereto agree not to directly or indirectly disclose each party's confidential information to any person other than your officers or employees who have a "need to know" or to sub-contractors to whom GLiNTECH has given its consent under this Master Agreement. The CLIENT must ensure that all such persons are aware of the confidentiality obligations imposed under this Master Agreement and agree to be bound by them personally. The CLIENT must observe confidentiality in respect of GLiNTECH at all times, including after your relationship with GLiNTECH or an Affiliate ends (whether that relationship arises from this Master Agreement or otherwise) and you will be responsible for ensuring that those of your employees, officers and sub-contractors who have access to GLiNTECH confidential information comply with all of your obligations.

6. Intellectual Property

  1. At all times all Intellectual Property created or enhanced by GLiNTECH in the course of, or in connection with, the provision of the Services will become or remain the sole property of the CLIENT.
  2. The CLIENT acknowledges that in providing, developing or furnishing the Services or deliverables, GLiNTECH may utilise methodologies, tools, models, software, procedure, documents, know-how and processes which contain pre-existing Intellectual Property, Intellectual property developed by GLiNTECH independently during the term of this agreement or Intellectual Property licensed to GLiNTECH by a third party ("Background IP"). Background IP is not transferable to the CLIENT as part of this Master Agreement and must be documented in a separate license or sublicense agreement.

7. Indemnity

  1. Each Party (the Indemnifying Party), will at all times be liable to the other (the Indemnified Party), and will keep indemnified, the Indemnified Party, its Affiliates and the respective officers (including after this Master Agreement ends) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by Indemnified Party or any Affiliate, directly or indirectly, in connection with:
    1. any act, or failure to act, which constitutes a breach by Indemnifying Party of any provision of this Master Agreement (including any act or failure to act whether negligent or otherwise, on the part, or on the part of the Indemnifying Party's officers, employees, agents and sub-contractors for whom Indemnifying Party vicariously liable);
    2. any injury to or death of persons or damage to property caused by the Indemnifying Party or by Indemnifying Party's employees, agents or subcontractors; or
    3. the Indemnifying Party's negligent or willful act or omission or that of the Indemnifying Party's employees, officers, agents or sub-contractors in connection with this Master Agreement (including as a result of any suit, action or proceeding by any person against Indemnified Party or Affiliates).
  2. The Indemnifying Party's liability to indemnify the Indemnified Party and Affiliates under this clause 7 will be reduced proportionally to the extent that any of the Indemnified Party or its Affiliates acts or omissions, or those of any person for whom the Indemnified Party or Affiliates are vicariously liable, contributed to the loss or liability.

8. Limited Warranties

  1. GLINTECH warrants that the Services will be performed in a professional and workmanlike manner and in accordance with the applicable SOW and industry standards.
  2. Upon written notice of a breach of this warranty, GLiNTECH will have reasonable opportunity to bring the Services into compliance ("remedy"). Any notice under this clause must be made to GLiNTECH within four weeks of completion of the Services upon which the claim is based.
  3. This remedy (as described in section 8.2) will be documented and agreed by both parties and shall be the exclusive remedy for any breach of this warranty.
  4. Each party warrants that it is validly organised, and financially and legally capable of fulfilling all requirements of this Agreement.

9. Limitations on Warranties and Remedies

  1. To the extent permitted by law, all conditions, warranties or representations which are not expressly included in this Agreement and which would otherwise be implied, are expressly excluded. Where the law prohibits exclusion of liability under an implied condition or warranty, GLiNTECH's sole liability for any loss or damage which the CLIENT may sustain or incur due to breach by GLiNTECH of any such implied condition, or warranty, shall be limited to:
    1. in relation to goods-
      1. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
      2. the repair of the goods or payment of the cost of having the goods repaired;
    2. in relation to services
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again

as in each case GLiNTECH may select with prior agreement from the CLIENT, which will not unreasonably withheld,.

GLiNTECH's liability will be reduced proportionately to the extent that any loss or damage arises as a result of the negligence of the CLIENT or as a result of any breach by the Client of an express or implied condition of this Master Agreement.

2. In no event shall either party be liable to the other for any special, indirect, incidental, consequential, or punitive damages in any way arising out of or relating to this agreement, even if the possibility of such damages has been communicated to the other party. Except with respect to matters in paragraph 9(1) of this agreement, in no event shall either party be liable to the other for damages for any cause whatsoever in an amount in excess of the fees paid to GLiNTECH (or payable to GLiNTECH, if the action involves client's failure to pay) under the applicable SOW.

10. Term and Termination

  1. The term of this Agreement shall commence from the date of receipt of the executed SOW or Purchase Order. This Agreement may be terminated by either party, with or without cause, upon not less than thirty (30) days' written notice to the other party. Upon termination of this Agreement, CLIENT shall promptly pay GLiNTECH for all Services rendered and out-of-pocket expenses incurred up to the termination date.

11. Duration

  1. This Agreement continues unless earlier terminated in accordance with the provisions of as provided under clause 10 of this agreement.
  2. On the expiry of the initial term, this agreement is automatically extended until either party gives the other party thirty (30) days written notice of its intention to terminate this agreement.

12. Force Majeure

  1. A Party will not be liable for any delay or failure to perform its obligations under this Master Agreement if such delay is due to Force Majeure. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended while the Force Majeure continues. If a delay or failure by you to perform your obligations due to Force Majeure exceeds 28 days, either party may immediately terminate this Master Agreement by notice in writing to the other. In such an event, the CLIENT will pay GLiNTECH all amounts outstanding for Services rendered up to the date this Master Agreement or the particular Statement of Work (as the case may be).

13. Miscellaneous

  1. The parties agree not to solicit, without written permission, any employee/ representative/ sub-contractor or agent of the other it has had contact with as a result of this Agreement for a period of six (6) months after termination of this Agreement.
  2. Notices, copies of notices or other communications shall be sent to a party at the address set forth on the first page of this Agreement. All notices shall be effective upon delivery of the notice to the addressed party
  3. Neither party is the agent, employee, legal representative, partner or joint venture of the other party for any purpose.
  4. Neither party shall be liable for any failure to perform its obligations under this Agreement (other than obligations of payment) if prevented from doing so by a cause or causes, including Acts of God, or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, wars, or war operations, restraints of government or other cause or causes that could not, with reasonable diligence, be controlled or prevented by the party. Any failure to perform shall be cured as soon as is reasonably practical by the non-performing party.
  5. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld. Neither party may assign this Agreement, with consent of the other party, such consent will not be unreasonably withheld, to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party shall be bound by the terms of this Agreement. If any assignee shall fail to agree to be bound by all of the terms and obligations of this Agreement, then such assignment shall be deemed null and void and of no force or effect. GLiNTECH may subcontract any of the services set forth in this Agreement, provided GLiNTECH remains responsible and liable to CLIENT for performance. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
  6. This Agreement, together with the SOW(s) hereto and Nondisclosure Agreements between the parties, constitutes the entire and exclusive agreement between the parties and supersedes all previous communications or agreements, either oral or written with respect to the subject matter hereof. In the event that any term contained in any SOW is inconsistent with the main body of this Agreement, the term of the SOW shall prevail but only to the extent necessary to resolve such conflict.
  7. Failure by either party to exercise its rights under this Agreement shall not be deemed a waiver of any such rights. Waivers shall be made in writing.
  8. If any provision in this Agreement is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties hereto, and shall be enforceable, as though the invalid or unenforceable provision were not contained herein.
  9. This Agreement and performance here under shall be governed in accordance with New South Wales Law. The parties agree to submit to the non-exclusive jurisdiction of the New South Wales courts.
  10. This Agreement is for a Time and Materials (T&M) engagement. Where consulting services are in effect, all timesheets must be approved by an authorised representative. Managed Services are drawn down in arrears of performing the work, which may/may not have had an accurate estimate provided.
  11. Consulting services are billed as per the following rate card:
HoursRate
Standard Rate Weekdays (between 6am-8pm AEST) Standard hours rate
Weekends & Public Holidays (between 6am-8pm AEST)2 x Standard hours rate
Nights (between 8pm - 6am - AEST)3 x Standard hours rate

12. Any required travel expenses and accommodation will be covered separately with prior written approval.

13. The CLIENT will notify GLiNTECH a minimum of 3 business days prior to the scheduled engagement for any foreseeable cancellations. If prior notification is not given, charges for 1 (one) scheduled business day per allocated resource will apply at the agreed-upon rates.

Sections 5, 6, 7, 8, 9, and 10.1 shall survive termination of this Agreement.

EACH PARTY WARRANTS THAT IT HAS READ AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS SET OUT ABOVE.