This secondment agreement is dated [insert date]

between:

[Employer name (ACN)] of [address] (Employer)

and:

[Host company name (ACN)] of [address] (Host Company)

and:

[Employee name] of [address] (Employee)

BACKGROUND

1. The Employer has agreed to release the Employee, with effect from the Commencement Date, to perform duties in the service of the Host Company (Secondment).
2. The parties to this agreement have agreed that the Secondment will operate on the terms and conditions set out in this agreement.
3. The Employer remains the employer of the Employee at all times.
4. The terms and conditions of the Employee’s employment with the Employer pursuant to the contract of employment dated, [date] (Employment Agreement) will continue to apply during the Secondment, except to the extent that they are varied by this agreement.

OPERATIVE PROVISIONS

1    Definitions

In this agreement:

Commencement Date means the [date].

Confidential Information means information in the possession of the Host Company which the Host Company designates to be confidential information and includes, but is not limited to, any information marked as confidential and any information received or developed by the Employee in the course of the secondment to the Host Company, or any Related Body Corporate, which is not publicly available and which relates to processes, equipment and techniques used by the Host Company, or any Related Body Corporate, in the course of its business including, but not limited to, all information, data, drawings, specifications, documentation, source or object codes, designs, constructions, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information, and business plans.

Expiry Date means the [date at which the secondment ends].

Intellectual Property means any intellectual property developed by, or within, the Host Company and includes, but is not limited to, trademarks, patents, copyrights, processes know-how, registered designs or other similar rights or any right to apply for registration of any intellectual property.

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).

2    Nature of secondment                        

The Employee will be assigned to perform work for the Host Company, located [location] upon the terms and subject to the conditions referred to in this agreement. The Host Company acknowledges that the Employee will perform duties for the Host Company.

3    Term

This agreement has effect from the Commencement Date and will continue until the Expiry Date, subject to termination at an earlier date by:

(a)      written agreement between the parties, in accordance with clause 10.2; or

(b)      written notice following a breach of this Agreement, in accordance with clause 9.

4    Duties and responsibilities

During the term of this agreement the Employee will carry out the duties, for the Host Company as described in schedule 1 of this agreement.

The Employee will assume other powers, responsibilities and duties as may, from time to time, be assigned by the Host Company and agreed to in writing by the Employee.

Any changes to the duties to be performed by the Employee must be approved by all parties in writing prior to the changes taking effect.

5    Duties and responsibilities

The Employee’s remuneration will remain in accordance with the Employment Agreement.

6    Leave entitlements

(a)      The Employee will continue to accrue all of the leave entitlements provided in the Employment Agreement for the period of the Secondment.

(b)      Given the short term of the Secondment, no annual leave will be taken during the Secondment.

7    Confidential information

7.1    Use of confidential information

(a)      The Employee acknowledges that, during the Secondment, the Employee may become acquainted with, have access to, or develop Confidential Information, and agrees to maintain the confidence of the Confidential Information and to prevent its unauthorised disclosure to, or use by, any other person, company or firm.

(b)      The Employee must not use Confidential Information for any purpose other than for the benefit of the Host Company during, or after, the Secondment.

(c)      The Employee must not remove Confidential Information from the premises of the Host Company without the written consent of the Host Company except in the normal course of performing the duties.

(d)      The Employee must immediately notify the Host Company after becoming aware of any suspected or actual unauthorised use, copying, or disclosure of Confidential Information by any person, and provide such assistance as requested by the Host Company in relation to any action taken by the Host Company to prevent any suspected or actual unauthorised use, copying or disclosure of Confidential Information by any person.

7.2    Return of confidential information

The Employee must return any and all Confidential Information at the Host Company’s request.

7.3     Survival of obligations

The obligations of confidentiality under this clause continue to apply after the Secondment unless:

(a)      the Employee is ordered to disclose the information by a court;

(b)      the Employees is otherwise required to disclose the information by law; or

(c)      the information is, or becomes part of, the public domain (otherwise than as a result of a breach of this agreement by the Employee).

7.4    Rights of Host Company

The Employee acknowledges that:

(a)      the Host Company’s rights under this clause are in addition to, and do not derogate from or affect, the Host Company’s common law or equitable rights;

(b)      the restrictions are reasonable and necessary for the protection of the Host Company; and

(c)      the remedy of damages may be inadequate to protect the interests of the Host Company and the Host Company is entitled to seek and obtain injunctive relief, or any other remedy, in any court.

8    Disclosure and ownership of Intellectual Property

(a)      The Employee must communicate to the Host Company promptly and fully all discoveries, improvements and inventions made or conceived by the Employee (either solely or jointly with others) during the Secondment which relate to the actual or anticipated business, work or investigations of the Host Company or which result from or are suggested by any work performed for the Host Company. Such inventions, whether or not they contain intellectual property rights capable of protection, will be, and remain, the sole and exclusive property of the Host Company or its nominees.

(b)      The Employee acknowledges that the Host Company (or its associated entitles or persons) owns all Intellectual Property created by the Employee in connection with the Secondment.

(c)      The Employee agrees to indemnify the Host Company fully against all liabilities, costs and expenses which the Host Company may incur as a result of any deliberate breach of this clause by the Employee.

(d)      The obligations accepted by the Employee under this clause survive termination of this agreement.

9    Termination

9.1 Termination

(a)      This Agreement may be terminated prior to the Expiry Date by agreement in writing between the Host Company, the Employer and the Employee after prior consultation.

(b)      Upon the termination of the Secondment, the Employee will revert to a continuing position with the Employer and the Host Company will not seek to retain the services of the Employee.

9.2    Return of property

On termination of this agreement, the Employee must return all Host Company property, including any Confidential Information or Intellectual Property.

10.    Warranties

In relation to the proposed secondment, the parties warrant that the disclosures that they have made to each other prior to entry into the Agreement are true, correct and complete and that there are no material facts or warranties known to any of them which have not been disclosed.

11    General

11.1    Governing law

This agreement is governed by the laws of the state or territory in which the secondment occurs and the parties irrevocably submit to the non exclusive jurisdiction of the courts of that state or territory.

11.2    Variation

This agreement must not be changed or modified in any way subsequent to its execution unless by agreement in writing signed by the Employer, the Host Company and the Employee.

Executed as an agreement

Schedule 1