Fulfilment Policy

Summary

This agreement outlines the terms and conditions underlying the service of Business and Change Work Coaching & Consulting, which Keystone agrees to provide the Client. In consideration for the mutual promises, covenants and Agreements made below, the parties, intending to be legally bound, agree as set out below:

Client Acknowledgement
1. The Client acknowledges that Keystone is not a financial advisor and any business insights given in the course of the services are based upon our industry experience only. You should obtain independent financial and legal advice on any potential transactions and/or business decisions.
Services
1. The Client appoints Keystone as a non-exclusive service provider, to provide the Client with business coaching services for the Client’s business and or products and service packages on the terms of this agreement.
2. Keystone will provide the Client with business coaching services during the term as set out in the Schedule.
3. Any additional services outside of the scope of this agreement will be charged by Keystone at its hourly rate in place from time to time.
Independent Contractor
1. Keystone is not an employee of the Client for any purpose whatsoever, but is an independent contractor. The Client is interested only in the results obtained by Keystone. The Client shall not have the right to require Keystone to do anything that would jeopardize the relationship of independent contractor between the Client and Keystone.
2. Keystone does not have, nor shall Keystone hold itself out as having any right, power or authority to create any contract or obligation, either express or implied, on behalf of, or binding upon the Client, unless the Client shall consent to that in writing.
3. Keystone shall have the right to appoint and shall be solely responsible for Keystone’s own employees, agents and representatives, coaches who shall be at Keystone’s own risk, expense and supervision and shall not have any claim against the Client for compensation or reimbursement.
4. Keystone may provide services to other clients that do not compete directly with the Client. Keystone may provide services to competitors of the Client with the Client’s consent.
5. The Client acknowledges that Keystone may hire contractors that are assigned to the Client as their coach (“Coach”). Any Coach assigned to a Client may be changed at any time based on various factors including meeting the Client’s need, unavailability of the Coach and the overall Success Fee Criteria. The client may also request for a Coach to be changed in writing with reasons and it will be the sole discretion of Keystone to take a decision on such a request.
6. Since Keystone is not an employee of the Client, the Client cannot direct or force Keystone or its Coaches, staff or contractors to take any action or inaction. The nature of this agreement mandates that the Client and Keystone work together towards a successful outcome for the Client’s business respecting the expertise that Keystone possesses.
Acceptance of Third Party Service Provision
1. Professionals, Corporations and other business entities introduced by Keystone to provide any related services for the Client shall be submitted to and subject to acceptance by the Client. Only the Client may decide, in its sole discretion, whether to accept or reject any individual or entity selected by Keystone.
Best Efforts
1. Keystone shall use its best efforts to develop and/or acquire effective solutions for the Client and to introduce individuals, Corporations and other business entities, where required and agreed upon, to perform such services for the Client.
Term & Termination
1. The term of this Agreement shall be for a period of 12 months for the Effective Date first written above. At the expiration of the term, this agreement will continue on a monthly basis unless otherwise renewed by the parties.
2. If within the first 60 days of this agreement, the client notifies in writing the intent to cease the agreement this will come into effect and the client may exit the agreement free from any obligations of the exit fee However, after this 60 day period the agreement shall continue for its full term.
3. The Client acknowledges that Keystone will be shut during Public Holidays in Queensland and will also have a shutdown period each year during Christmas for about 2 weeks. The Client will be notified of the exact shutdown period 2 weeks in advance. As such, no sessions can be held during the shutdown period and on Public Holidays unless otherwise agreed by Keystone in writing on request from the Client.
4. Each of the following events is an Event of Default, namely:
  1. if the Client fails to pay any amount due and payable under this agreement on the due date for payment and such failure continues for more than 5 Business Days;
  2. either party fails to perform or observe any of the covenants or provisions of this agreement and (if capable of remedy) such default continues for more than 10 Business Days after notice from the non-defaulting party requiring remedy the breach;
  3. either party suffers an Insolvency Event or if it is a partnership, is dissolved; or
  4. the Client being a natural person dies or becomes permanently disabled or incapacitated or insane;
  5. the Client is convicted of an indictable offence carrying a maximum penalty of not less than 18 months imprisonment; or
  6. the Client commits any act involving fraud, deceit or dishonesty (whether in relation to Keystone or otherwise).
  7. if a Client consistently cancels or tries to reschedule their session less than 72 hours of a scheduled session. This will depend on the frequency and reason. However, 4 consecutive cancellations or reschedules will be an automatic Event of Default.
  8. failure on the Client’s part to provide timely instructions or inaction on the Client’s behalf that affects the Success Fee Criteria.
  9. The Client for no valid reason expresses an intention to terminate this agreement prior to the end of the initial term;
  10. any form of action or statements by the Client that constitute harassment, intimidation, or inappropriate behaviour that creates a hostile working environment. The statements or actions include statements based on race, sex, religion, national origin, marital status, pregnancy, or disability, political, economic, social, cultural, or any other similar field.
  11. specific actions or omissions from the Client that are reasonably deemed unacceptable, such as continued attempts on behalf of the Client to breach the agreement, lack of cooperation, or failure to fulfill necessary obligations that are critical to the Success Fee Criteria. If such a situation arises, Keystone will serve a notice outlining the actions or omissions providing an opportunity for the client to remedy this within 10 business days.
5. If an Event of Default occurs the non-defaulting party may at its option:
  1. by proceeding by appropriate court action, either at law or in equity, enforce performance of the applicable terms and provisions of this Agreement or recover damages for the breach concerned; and / or
  2. terminate this Agreement by written notice, and
  3. subject to clause 8, no part of the Base Fee is refundable by Keystone to the Client.
6. In this clause 6, ‘Insolvency Event’ means one or more of the following events:
  1. a party is unable to pay their debts as and when they fall due;
  2. an application is made, or a resolution is passed, to wind up the party;
  3. a controller or administrator is appointed in respect of a party or any of its assets;
  4. a party commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or
  5. a party dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.
7. This Agreement will be deemed to be automatically terminated if the Client enters into any heads of agreement, MOU, letter of intent to sell more than 50% of the shares in their business and that the Exit Fee becomes payable on the date of execution of any such documents.
8. If the Client terminates, defaults or repudiates the Agreement prior to the end agreed initial term or prior to the end of an agreed extended term, the Client shall be liable to pay Keystone the Exit Fee specified in the Schedule and the Client acknowledges that the Exit Fee represents a genuine pre-estimate of the loss that Keystone has incurred as a result of the Clients’ termination, default or repudiation.
9. If Keystone terminates the Agreement due to the Client’s conduct or omission and/or failing to implement the recommendations of Keystone in a timely manner during the term of the Agreement the Client shall be liable to pay Keystone the Exit Fee specified in the Schedule and the Client acknowledges that the Exit Fee represents a genuine pre-estimate of the loss that Keystone has incurred as a result of the Clients’ conduct or omissions.
10. Keystone may vary, reduce or eliminate the Exit Fee having regard to all the circumstances of each case of default and/or termination.
Schedule and Terms of Fees
1. The Client shall pay Keystone a fee of $29,040 including GST (Base Fee), payable in advance of the 24 -month engagement period, except where otherwise agreed upon. Subject to clause 8, the Base Fee is non-refundable.
2. Despite anything to the contrary contained in this Agreement, the Client shall reimburse Keystone for travel and any other expenses incurred by Keystone and agreed upon by the Client and Keystone prior to Keystone incurring such expenses.
3. Upon expiration of the term, where the Client has achieved the objectives set out in the Schedule, Keystone will be entitled to a success fee as set out in the Schedule. The Success Fee is due and payable within 30 days of Keystone’s invoice.
4. The Client must pay all amounts due to Keystone (whether under these terms and conditions or otherwise) without set-off, deductions counter-claims or conditions and in available cleared funds.
5. If the Client owes any amount to Keystone (whether under these terms and conditions or otherwise), Keystone may suspend work, demand all monies owing as due and payable and set-off any amount against an amount Keystone owes the Client.
6. If an amount due under these Terms and Conditions, including the monthly Base Fee and/ or the Success Fee, is paid after the due date the Client must pay Keystone, in addition to the overdue amount interest at 10% per annum, plus Keystone’s enforcement costs on an indemnity basis.
Warranties
1. Keystone gives no express or implied warranties or representations in relation to the services other than as set out in clause 5.
2. The services are provided to the Client only and are not for the benefit of,and must not be relied upon by any third party, including shareholders and financiers of the Client.
3. To the maximum extent permitted by law, Keystone limits its liability for any Loss or Claim in connection with this Agreement, to the price of the services.
4. To the maximum extent permitted under the Australian Consumer Law, Keystone’s liability for breach of a Consumer Guarantee, if the Consumer Guarantees apply at law, is limited to any one or more of the following, at Keystone’s election:
  1. the supplying of the Services or the Equipment again; or
  2. the payment of the cost of having the Services supplied again by an alternative supplier.
5. The Client releases, indemnifies and holds Keystone harmless to the full extent permitted by law for any Loss or Claim whatsoever arising in connection with the services provided under this agreement and the operation of the Client’s business.
6. In this clause:
  1. ‘Claim’ includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including legal costs), investigation or judgment of any nature, whether known or unknown, whether brought by the Client or a third party.
  2. Loss’ means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
Intellectual Property
1. Unless specified otherwise in this Agreement:
  1. Intellectual Property Rights owned by the Client in Client Content will remain the property of the Client, and Keystone acknowledges that nothing in this agreement transfers title in or ownership of any Client Content to Keystone;
  2. Intellectual Property Rights owned by Keystone in Keystone Content will remain the property of Keystone, and the Client acknowledges that nothing in this agreement transfers title in or ownership of any Keystone Content to the Client;
  3. Intellectual Property Rights in all content developed by Keystone directly in with the services will vest on creation in Keystone (Project Content).
2. The Client grants to Keystone an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of the Client Content as is, in the reasonable opinion of Keystone, necessary to provide the services as set out in this Agreement.
3. Keystone grants to the Client an irrevocable, non-exclusive, non-transferable, royalty free licence to make such use of Keystone Content and the Project Content during the term.
4. In this clause:
  1. ‘Client Content’ means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by the Client to Keystone in relation to the performance of the services;
  2. ‘Consultant Content’ means all documents, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by Keystone to the Client in relation to the performance of the services; and
  3. ‘Intellectual Property Rights’ means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
Confidentiality and Non-Disparagement
1. Each party must:
  1. keep the Confidential Information confidential and not disclose it or allow it to be disclosed to a third party except:
  2. with the prior written approval of the other parties; or
  3. to officers, employees and consultants or advisers of the party (or its related bodies corporate) who have a need to know (and only to the extent that each has a need to know) for the purposes of this deed and are aware that the Confidential Information must be kept confidential; and
  4. take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.
2. No announcement, press release or other communication of any kind relating to the negotiations of the parties or the subject matter or terms of this deed must be made or authorised by or on behalf of a party without the prior written approval of each other party unless that announcement, press release or communication is required to be made by law or any order of any court, tribunal, authority or regulatory body.
3. The obligations of confidentiality under this deed do not extend to information (whether before or after this deed is executed) required to be disclosed by law or any order of any court, tribunal, authority or regulatory body or in connection with the enforcement of this deed or by the rules of a recognised stock exchange.
4. The Parties agree that from the date of their execution of this agreement, they will not disparage each other in perpetuity, either directly or indirectly including the services, staff, products, agents, contractors of the parties. This includes inflammatory comments or reviews made privately or publicly.
5. In this clause:
  1. ‘Confidential Information’ means the terms of this deed any written or oral information of a technical, business or financial nature or which is taken by any provision of this deed to be Confidential Information, or which the Discloser makes the Recipient aware is considered by the Discloser to be confidential and proprietary, and includes all information that is personal information for the purposes of the Privacy Act 1988 (Cth), but does not include information which the Recipient can establish:
    1. was in the public domain when it was given to the Recipient;
    2. becomes, after being given to the Recipient, part of the public domain, except through disclosure contrary to this deed;
    3. was in the Recipient’s possession when it was given to the Recipient and had not been acquired in some other way (directly or indirectly) from the Discloser; or
    4. was lawfully received from another person who had the unrestricted legal right to disclose that information free from any obligation to keep it confidential.
  2. ‘Discloser’ means the party giving information.
  3. ‘Recipient’ means the party to whom information is given.
Dispute Resolution
1. A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this deed (Dispute) unless it has complied with this clause.
2. A party claiming that a Dispute has arisen must give each party to the Dispute notice setting out details of the Dispute.
3. Each party to the Dispute (Disputant) must use its best efforts in good faith to resolve the Dispute within 10 Business Days after the notice is given under this clause (or any longer period agreed by the Disputants) (Initial Period).
4. If within the Initial Period, the parties to the dispute do not resolve the dispute, the parties must mediate the dispute in good faith and in accordance with the Mediation Rules of the Resolution Institute (ABN 69 008 651 232) and the parties must request the Chair of the Resolution Institute or the Chair’s nominee to select the mediator (Mediator) and determine the Mediator’s remuneration, which will be shared equally by the Disputants.
5. During the 20 Business Days after the appointment of the Mediator (or a longer period agreed by the Board) (Second Period) the Disputants, in consultation with the Mediator, must use their best efforts to resolve the Dispute.
6. After the Second Period, a Disputant that has complied with this clause may terminate the dispute resolution process by giving notice to each other Disputant. If a Disputant breaches this clause, each other Disputant does not have to comply with those clauses.
General Provisions
1. Non-Solicitation. Neither party shall solicit for employment or hire the other’s current or future employees, either directly or indirectly, during the Term of this Agreement, without obtaining the other’s prior written approval.
2. Governing Law & Jurisdiction. This agreement and the parties’ actions under this Agreement shall be governed by and construed under the laws of the state of Queensland, without reference to conflict of law principles. The parties here by expressly consent to the jurisdiction and venue of the federal and state courts within Queensland.
3. Entire Agreement. This Agreement, including any attached exhibits, constitutes the entire Agreement between both parties concerning this transaction, and replaces all previous communications, representations, understandings, and Agreements, whether verbal or written between the parties to this Agreement or their representatives. No representations or statements of any kind made by either party, that are not expressly states in this Agreement, shall be binding on such parties.
4. All Amendments in Writing. No waiver, amendment or modification of any provisions of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom such waiver, amendment or modification is sought to be enforced. Furthermore, no provisions in either party’s purchase orders, or in any other business forms employed by either party will supersede the terms and conditions of this Agreement.
5. Delay is Not a Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, shall operate as a waiver of any such right, power or remedy.
6. Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, orders or restrictions, Internet system unavailability, system malfunctions or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a “Force Majeure Event”), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of non-performance exceeds sixty (60) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.
7. Severability. If any provisions of this Agreement are held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.
8. Survival of Certain Provisions. The warranties and the indemnification and confidentiality obligations set forth in the Agreement shall survive the termination of the Agreement by either party for any reason.
9. Assignment. The rights and obligations of each party under this deed are personal. No party may assign, encumber or otherwise deal with such rights and obligations without the prior written consent of all other parties, unless otherwise expressly stated.
10. No Contra Proferentem In the interpretation of this deed or any part of it, no rule of construction shall apply to the disadvantage of any party on the basis that that party:
  1. prepared this contract or any part of it; or
  2. seeks to rely on this contract or any part of it.
11. No Agency. This Agreement does not create a relationship of fiduciary, employee, partnership or joint venture between the parties and we act as an independent service provider only.