Terms of Engagement
Twobirds · Singapore
These Terms of Engagement (the "Engagement Terms") set out the general conditions upon which Twobirds, an unincorporated community of independent practitioners (hereinafter "Twobirds", "we", "us" or "our", and where the context so requires, the "Courseware Developer"), and the individual practitioner or practitioners thereof, accept engagements from clients (the "Client") in respect of curriculum and courseware development, trainer and subject matter expert sourcing, TPQA and compliance advisory, ATO setup and operations, and such other ancillary practice areas as may be agreed in writing from time to time (collectively, the "Services").
These Engagement Terms shall be read together with, and form an integral part of, the engagement letter, statement of work, proposal or quotation issued by Twobirds in respect of the particular engagement (the "Engagement Letter"). In the event of any inconsistency between these Engagement Terms and the Engagement Letter, the Engagement Letter shall prevail to the extent of such inconsistency.
These Engagement Terms are published at the location stated above and are incorporated by reference into every invoice, quotation, statement of work and Engagement Letter issued by Twobirds, whether or not a copy is physically annexed thereto. By countersigning the Engagement Letter, by issuing a purchase order in reliance upon any such instrument, by accepting any deliverable, or by remitting any sum to Twobirds in respect of any invoice that cites or refers to these Engagement Terms, the Client shall be conclusively deemed to have read, understood and accepted these Engagement Terms in their entirety, and the Client shall be estopped from contending otherwise.
The version of these Engagement Terms applicable to a given invoice or Engagement Letter shall be the version then published at the location stated above as at the date of issuance of that invoice or Engagement Letter. Twobirds shall, upon written request, furnish to the Client an archived copy of the version applicable at any earlier date.
The Client's attention is drawn in particular to Article IV (No Warranty of Outcome or Accreditation), Article V (Professional Fees, Payment and Non-Refund), Article VI (Client Responsibilities), Article VII (Intellectual Property) and Article IX (Limitation of Liability), each of which contains terms that materially limit the obligations of Twobirds and to which the Client should give close and considered attention.
Nature of the Engagement
1.1
Twobirds is a community of independent practitioners. Each engagement is accepted by one or more such practitioners acting in their individual professional capacity under the Twobirds imprint. No relationship of partnership, joint venture, agency or employment shall be implied as between Twobirds and the Client, nor as between the individual practitioners and the Client.
1.2
The Services constitute the rendering of professional advice, curriculum and courseware design, documentation and related consultative work on a best endeavours basis. They do not constitute the procurement of a regulatory outcome, the conferral of any accreditation, or the obtaining of any approval from the SkillsFuture Singapore Agency ("SSG"), the Workforce Singapore Agency ("WSG"), or any other competent authority (each, a "Competent Authority").
1.3
The scope of the Services, the deliverables, the timetable and the agreed professional fees shall be as set out in the Engagement Letter and shall not be varied save by written instrument signed by an authorised representative of each party.
Commencement and Term
2.1
The engagement shall commence upon the earlier of (a) the date of countersignature of the Engagement Letter by the Client and (b) the date of receipt by Twobirds of the first instalment of the agreed professional fees, and shall continue until the completion of the Services or the earlier termination thereof in accordance with these Engagement Terms.
2.2
Indicative dates communicated by Twobirds, whether in the Engagement Letter or in correspondence, are estimates given in good faith. They are not, and shall not be construed as, contractual deadlines. Twobirds shall not be liable for any consequence of a deliverable being furnished on a date other than the indicative date so given.
Performance Standard
3.1
Twobirds shall render the Services with reasonable skill and care and in accordance with the standards customarily expected of a competent practitioner in the field of curriculum and courseware development within the Republic of Singapore.
3.2
No greater duty, and no fiduciary duty, shall be implied beyond that expressly assumed in the Engagement Letter and these Engagement Terms. To the maximum extent permitted by law, all conditions, warranties and representations, whether express or implied, statutory or otherwise, are hereby excluded.
No Warranty of Outcome or Accreditation
4.1
The Client expressly acknowledges and accepts that the grant, renewal, variation or maintenance of any accreditation, approval, recognition, registration, funding eligibility or course listing, including without limitation designation as an Approved Training Organisation, the listing of a course on the SSG training course directory, the grant of SSG funding, WSQ recognition, TPQA clearance or any analogous outcome, is the sole prerogative of the relevant Competent Authority and lies wholly outside the control of Twobirds.
4.2
Accordingly, Twobirds gives no warranty, undertaking, guarantee or assurance, whether express or implied, that any application, submission, courseware, programme architecture, assessment plan, policy document, audit response or other deliverable prepared in connection with the Services shall result in the grant, renewal or maintenance of any such accreditation, approval or outcome, nor that any such application shall be determined within any particular time or on any particular terms.
4.3
Without prejudice to the generality of the foregoing, Twobirds makes no representation that the Services will (a) cause a course to be placed on the SSG training course directory; (b) cause a course to be approved for SSG funding at any particular rate or at all; (c) cause the Client to be designated, or to retain designation, as an Approved Training Organisation; (d) result in a positive TPQA outcome; or (e) avoid any audit finding, observation, query or further information request issued by any Competent Authority.
4.4
Where a Competent Authority issues queries, requests for further information, requests for revisions or notices of non-approval, Twobirds shall, upon the Client's request and subject to the agreement of additional professional fees where the work required falls outside the agreed scope, assist in addressing the same. Such further work shall be the subject of a supplementary Engagement Letter or written variation.
4.5
The Client acknowledges that regulatory frameworks, funding criteria, syllabi requirements and audit standards are subject to amendment by the Competent Authority from time to time, and that no deliverable prepared at a given date can be warranted to remain compliant in perpetuity.
Professional Fees, Payment and Non-Refund
5.1
In consideration of the Services, the Client shall pay to Twobirds the professional fees stated in the Engagement Letter (the "Professional Fees"). Save where expressly stated to the contrary in the Engagement Letter, the Professional Fees are exclusive of out of pocket disbursements, travel, accommodation, third party fees and any duties or imposts of like nature, all of which shall be invoiced to the Client at cost. Twobirds is a community of independent professional practitioners and is not registered for Goods and Services Tax; accordingly, no Goods and Services Tax shall be charged on or in addition to the Professional Fees.
5.2
Unless otherwise stipulated in the Engagement Letter or in the relevant invoice, the Professional Fees in respect of a staged engagement are payable as follows: fifty per centum (50%) upon countersignature of the Engagement Letter, as a non-refundable commencement fee earned upon receipt; and the balance of fifty per centum (50%) upon issuance of the principal deliverable for Client review, irrespective of whether the Client elects to submit such deliverable to the relevant Competent Authority. Where the Engagement Letter or invoice provides for payment of the Professional Fees in a single instalment, the whole of such instalment shall be earned upon receipt and shall be non-refundable on the same basis.
5.2A
Every invoice issued by Twobirds shall be conclusive as to the sums therein stated, save in the case of manifest arithmetical error, unless the Client has, within seven (7) calendar days of the date of the invoice, given written notice to Twobirds particularising the specific item disputed and the grounds of dispute. In the absence of such notice, the Client shall be deemed to have accepted the invoice in full and shall be estopped from raising any challenge thereto.
5.3
All sums invoiced are payable within fourteen (14) calendar days of the date of invoice. Sums remaining unpaid beyond such period shall bear interest at the rate of one and one half per centum (1.5%) per month, or part thereof, computed from the due date until the date of actual payment, both dates inclusive, and compounded monthly.
5.4
All Professional Fees paid to Twobirds are earned upon receipt and are non-refundable in whole or in part, save where refund is required by the mandatory provisions of the laws of the Republic of Singapore. Without prejudice to the generality of the foregoing, no refund shall be due or claimable by reason of:
5.5
(a) the refusal, non-approval, deferment, lapse, suspension or revocation of any application or accreditation by a Competent Authority; (b) any change in the Client's commercial strategy, ownership, management or business direction; (c) the Client's decision not to proceed with, not to submit, to withdraw or to abandon any application; (d) the Client's dissatisfaction with the regulatory outcome, as distinct from the quality of the deliverable itself; (e) any delay, suspension or termination caused by the Client or by any third party for whom the Client is responsible; (f) any change in regulatory framework, funding policy or audit criteria occurring after the date of the relevant deliverable; (g) the Client's failure to implement, to resource or to operationalise the deliverable in practice; or (h) the Client's election to terminate the engagement at its own initiative.
5.6
Twobirds shall be under no obligation to commence, to continue or to release any deliverable while any sum is outstanding beyond its due date, and may suspend the Services without liability until all such sums, together with any accrued interest, are received in full and in cleared funds.
5.7
All sums payable by the Client shall be paid in full without set off, counterclaim, deduction or withholding of any kind, save as may be required by law.
5.8
The Client acknowledges that the Professional Fees have been computed on the express basis of the limitations, exclusions and allocations of risk set out in these Engagement Terms, and that the Professional Fees would be materially higher were Twobirds to assume any greater liability or to underwrite any regulatory outcome.
Client Responsibilities
6.1
The Client undertakes to furnish Twobirds, in a timely fashion, with all information, documents, instructions, approvals and access to personnel as may reasonably be required for the proper performance of the Services, and warrants the accuracy, completeness and currency of all such information.
6.2
The Client shall be solely responsible for the strategic, commercial and operational decisions taken in reliance upon the Services, including without limitation the decision whether and when to submit any application or document to a Competent Authority, and the manner in which any approved programme is subsequently delivered, marketed and administered.
6.3
The Client acknowledges that the timeliness and quality of the Services are materially dependent upon the Client's co-operation. Any delay, error or omission in the deliverables attributable to a delay, error or omission on the part of the Client shall not constitute a breach by Twobirds, nor give rise to any abatement of the Professional Fees.
6.4
The Client shall ensure that any information furnished to Twobirds, and any subsequent use by the Client of the deliverables, does not infringe the intellectual property rights of any third party, and shall indemnify and hold Twobirds harmless from and against any claim arising from any such infringement.
Intellectual Property
7.1
All right, title and interest, including without limitation all copyright, design rights, database rights, trade marks, moral rights and any other intellectual property rights of whatsoever nature, subsisting in or in connection with the deliverables, the courseware, the lesson plans, the assessment instruments, the policy and procedure documentation, the templates, frameworks, methodologies, models, checklists, reference materials, instructional design schemata, assessment matrices, training of trainer collateral and all preparatory, working and ancillary materials prepared by Twobirds in connection with the Services (collectively, the "Courseware Materials") shall vest in, and remain at all times the sole and exclusive property of, Twobirds.
7.2
Nothing in these Engagement Terms, in the Engagement Letter or in the course of dealing between the parties shall operate as an assignment, transfer or conveyance of any intellectual property right in the Courseware Materials to the Client. The doctrine of work made for hire, and any analogous doctrine in any jurisdiction, is expressly disapplied.
7.3
Subject to the prior receipt by Twobirds of the Professional Fees in full and in cleared funds, and subject to the Client's continuing compliance with these Engagement Terms, the Client is granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable, royalty free licence to use the Courseware Materials prepared specifically for the Client (the "Permitted Use Licence") solely for the following purposes (the "Permitted Purposes"): (a) submission to the relevant Competent Authority in support of the Client's own application; (b) delivery, in unmodified form, of the specific programme of training to which the Courseware Materials relate, by the Client and from the Client's approved training premises; and (c) the Client's own internal record keeping and audit response.
7.4
Without the prior express written consent of Twobirds, which may be withheld at Twobirds' sole and absolute discretion, the Client shall not, and shall procure that its officers, employees, contractors, trainers, affiliates and any successor in title shall not: (a) copy, reproduce, transcribe, scan, photograph, screenshot, scrape, download or otherwise duplicate the Courseware Materials, save to the limited extent strictly necessary for the Permitted Purposes; (b) modify, adapt, translate, abridge, summarise, re-author, re-brand, white-label or prepare derivative works of the Courseware Materials; (c) sell, licence, sub-licence, rent, lease, loan, distribute, syndicate, publish, transmit, broadcast or otherwise make the Courseware Materials available to any third party; (d) use the Courseware Materials, in whole or in any part, in connection with any programme of training other than that for which they were prepared; (e) remove, conceal, obliterate or alter any proprietary notice, watermark, copyright legend or attribution affixed to the Courseware Materials; (f) use the Courseware Materials, or any extract thereof, to train, fine tune, evaluate or otherwise inform any machine learning model, large language model, generative artificial intelligence system, search index or other automated system; or (g) assert, register or apply to register any intellectual property right in respect of the Courseware Materials or any derivative thereof.
7.5
The Client shall not permit any trainer, facilitator, freelance instructor or third party engaged by the Client to retain, copy or remove from the Client's premises any physical or electronic copy of the Courseware Materials upon the cessation of such person's engagement with the Client. The Client shall implement and maintain reasonable administrative, technical and physical safeguards to give effect to this clause.
7.6
All underlying methodologies, frameworks, templates, checklists, reference libraries, instructional design schemata, assessment matrices and proprietary know how developed, refined or employed by Twobirds in the preparation of the Courseware Materials (the "Background IP") shall remain the sole and exclusive property of Twobirds, are expressly excluded from the Permitted Use Licence, and may be re-used by Twobirds in connection with any other engagement without restriction or accounting to the Client.
7.7
Any improvement, refinement, correction, error fix or enhancement to the Courseware Materials or the Background IP, whether conceived by Twobirds, the Client, a trainer or any other person in the course of, or arising out of, the Services, shall vest in Twobirds upon creation. The Client hereby assigns to Twobirds, with full title guarantee and by way of present assignment of future rights, all such intellectual property rights, and shall, at Twobirds' request and cost, execute such further documents and do such further acts as may be required to perfect such vesting.
7.8
The Permitted Use Licence shall terminate automatically and without notice upon the earlier of (a) any breach by the Client of this Article VII; (b) any non-payment of the Professional Fees beyond the period stipulated in Article V; (c) the termination of the engagement for any reason; and (d) the Client ceasing to operate the relevant programme of training. Upon such termination the Client shall forthwith cease all use of the Courseware Materials, return all physical copies to Twobirds and irretrievably delete all electronic copies in its possession or control, and shall, upon request, certify such return and deletion in writing signed by an officer of the Client.
7.9
The Client acknowledges that damages alone would be an inadequate remedy for any breach of this Article VII, and that Twobirds shall be entitled, without prejudice to any other right or remedy, to seek the remedies of injunction, specific performance and account of profits, in addition to damages, costs and any other relief which may be available to it at law or in equity.
7.10
Twobirds reserves the right, in its sole discretion, to reference the existence of the engagement, and to identify the Client by name and mark, in its portfolio, capability statements and credentials lists, provided that no confidential information of the Client shall be disclosed thereby.
Confidentiality and Data
8.1
Each party shall hold in confidence all information of the other party designated as confidential or which by its nature ought reasonably to be regarded as confidential, and shall not disclose the same to any third party save with the prior written consent of the disclosing party or as required by law or by a Competent Authority.
8.2
The obligations of confidence shall not apply to information which (a) is or becomes publicly available other than by reason of breach of these Engagement Terms; (b) was lawfully in the recipient's possession prior to disclosure; (c) is independently developed by the recipient without reference to the disclosed information; or (d) is required to be disclosed by law or by order of a court or Competent Authority.
8.3
Each party shall comply with its obligations under the Personal Data Protection Act 2012 of Singapore in respect of any personal data processed in connection with the Services.
Limitation of Liability
9.1
The aggregate liability of Twobirds, its principals, partners, practitioners, employees, contractors and agents, in contract, in tort (including negligence), under statute or otherwise, arising out of or in connection with the Services, the Courseware Materials or these Engagement Terms, shall in no event exceed the total Professional Fees actually paid by the Client to Twobirds in respect of the particular engagement giving rise to the claim.
9.2
Twobirds shall not be liable to the Client for any loss of profit, loss of business, loss of revenue, loss of anticipated savings, loss of goodwill, loss of opportunity, loss of accreditation, loss of funding eligibility, loss of reputation, loss arising from the act, omission or determination of any Competent Authority, or any indirect, special, incidental, punitive or consequential loss howsoever arising, whether or not such loss was foreseeable and whether or not Twobirds was advised of the possibility of the same.
9.3
No claim shall lie against Twobirds unless written particulars thereof are received by Twobirds within twelve (12) months of the date upon which the cause of action is alleged to have accrued, after which time all such claims shall be deemed irrevocably waived and released.
9.4
Nothing in these Engagement Terms shall operate to exclude or limit any liability which cannot lawfully be excluded or limited, including liability for fraud, fraudulent misrepresentation, or personal injury caused by negligence.
Indemnity
10.1
The Client shall indemnify, keep indemnified and hold harmless Twobirds, its principals, partners, practitioners, employees, contractors and agents, from and against any and all liabilities, costs, expenses, damages and losses (including any reasonable legal costs and expenses on a full indemnity basis) suffered or incurred by Twobirds arising out of or in connection with (a) any breach by the Client of these Engagement Terms, in particular any breach of Article VII (Intellectual Property); (b) any unauthorised use, copying or disclosure of the Courseware Materials by the Client or by any person to whom the Client has provided access; (c) any claim by any third party arising out of the Client's delivery of the programme of training; and (d) the inaccuracy, incompleteness or misleading character of any information furnished by the Client to Twobirds.
Termination
11.1
Either party may terminate the engagement upon the material breach of these Engagement Terms by the other party, where such breach is incapable of remedy or, being capable of remedy, is not remedied within fourteen (14) days of written notice requiring its remedy.
11.2
Twobirds may further terminate, or suspend, the engagement forthwith upon written notice where (a) any sum due from the Client remains unpaid for more than thirty (30) days beyond its due date; (b) the Client becomes insolvent, enters into any composition with its creditors, or has a receiver, judicial manager or liquidator appointed over the whole or any part of its undertaking; (c) the Client commits any breach of Article VII (Intellectual Property); or (d) the continuation of the engagement would, in the reasonable opinion of Twobirds, place Twobirds in breach of any law, regulation or professional rule.
11.3
Upon termination howsoever occurring, the Client shall pay to Twobirds all Professional Fees in respect of the Services performed up to the effective date of termination, together with all disbursements incurred and all reasonable wind down costs. For the avoidance of doubt, no sum already paid to Twobirds shall be refundable upon termination.
11.4
Articles V (Professional Fees, Payment and Non-Refund), VII (Intellectual Property), VIII (Confidentiality and Data), IX (Limitation of Liability), X (Indemnity) and XIV (Governing Law and Jurisdiction) shall survive termination of the engagement.
Force Majeure
12.1
Twobirds shall not be in breach of these Engagement Terms, nor liable for any delay in performance or non-performance, by reason of any cause beyond its reasonable control, including without limitation acts of God, war, terrorism, civil commotion, pandemic, epidemic, public health directives, governmental or regulatory action, failure of utilities or telecommunications, or the act or omission of any Competent Authority.
General
13.1
These Engagement Terms, together with the Engagement Letter, constitute the entire agreement of the parties in respect of the Services and supersede all prior negotiations, representations and understandings, whether oral or written.
13.2
No variation of these Engagement Terms shall be effective unless reduced to writing and signed by an authorised representative of each party.
13.3
If any provision of these Engagement Terms is held to be invalid, illegal or unenforceable, the remaining provisions shall continue in full force and effect, and the parties shall negotiate in good faith to substitute a valid, enforceable provision of substantially similar economic effect.
13.4
The Client shall not assign, novate, charge or otherwise transfer its rights or obligations hereunder without the prior written consent of Twobirds, such consent not to be unreasonably withheld.
13.5
No failure or delay by Twobirds in exercising any right or remedy under these Engagement Terms shall operate as a waiver thereof, nor shall any single or partial exercise preclude any further exercise of the same or of any other right or remedy.
13.6
Any notice required to be given under these Engagement Terms shall be in writing and shall be sent to the addressee at the address or electronic mail address stated in the Engagement Letter, or such other address as the addressee may from time to time notify in writing. A notice sent by electronic mail shall be deemed received upon the sender's receipt of a non-bounce delivery confirmation.
13.7
A person who is not a party to these Engagement Terms shall have no rights under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce any term hereof.
Governing Law and Jurisdiction
14.1
These Engagement Terms, the Engagement Letter, and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with them or the Services, shall be governed by and construed in accordance with the laws of the Republic of Singapore.
14.2
The parties submit to the exclusive jurisdiction of the courts of the Republic of Singapore, save that Twobirds reserves the right to bring proceedings for the recovery of sums due, for the protection of its intellectual property, or for injunctive relief, in any court of competent jurisdiction.
Issued for and on behalf of
Twobirds
Practice · Singapore
Correspondence
Practice Accounts
finance@2birds.asia