Terms and Conditions

About Outbooks Terms and Conditions

  1. Definitions and Interpretation
    1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
      “Agreement” means the agreement (described as the Statement of Work) entered into by the Service Provider and the Client incorporating these Terms and Conditions (or variation thereof agreed upon by both Parties in writing) which shall govern provision of the Services and Deliverables;
      “Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open in Brisbane;
      “Business Relationship Manager” means the person appointed to act in such capacity by the Service Provider named in the Statement of Work or such other person as the Service Provider may from time to time nominate;
      “Client” means the party procuring the Services from the Service Provider who shall be identified in the Agreement;
      “Client Management Representative” means the person named in the Statement of Work who shall be responsible for liaising with the Business Relationship Manager, or such other person who the Client may from time to time nominate;
      “Client Materials” means all documents, information, items and materials in any form (whether owned by the Client or a third party), which are provided by the Client to the Service Provider in connection with the Services;
      “Commencement Date” means the date on which provision of the Services will commence, as defined as the Project Start Date in the Agreement;
      “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such);
      ‘’Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures’’ as defined in the Privacy Law;
      “Deliverables” means any outputs of the Services and any other documents, products and materials provided by the Service Provider to the Client as specified in the Statement of Work and any other documents, products and materials provided by the Service Provider to the Client in relation to the Services (excluding the Service Provider Materials);
      “Fees” means any and all sums due under the Agreement from the Client to the Service Provider, as calculated based upon Fee Schedule specified in Part 2 of the Schedule;
      “Governing Law’’ means the laws of Queensland;
      “Intellectual Property Rights” means (a) any and all rights in any patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions;

      (b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);

      (c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and

      (d) the right to sue for past infringements of any of the foregoing rights;
      “Person or Personnel” means the individual(s) who the Service Provider shall procure in respect of providing the Services to the Client pursuant to the terms of the Agreement;
      “Privacy Law” means all applicable privacy and data protection legislation in force from time to time in Australia including the Privacy Act 1988 (Cth) as amended;
      “Schedule” means the Schedule in one or more parts annexed to the Terms and Conditions and which shall be deemed to form part of the Agreement;
      “Services” means the bookkeeping services to be provided by the Service Provider to the Client in accordance with Clause 2 of the Agreement, as fully defined in the Agreement, and subject to the terms and conditions of the Agreement;
      “Service Provider Materials” means any equipment, materials, systems, inventions, designs, information, know-how, specifications, formulae, data, processes, methods, techniques and other technology provided by the Service Provider or used by the Service Provider, its agents, subcontractors or consultants and used directly or indirectly in the supply of the Services,; and
    2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
      1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
      2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
      3. “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
      4. a Clause or paragraph is a reference to a Clause of these Terms and Conditions or to a Clause of the Agreement, as appropriate; and
      5. a "Party" or the "Parties" refer to the parties to the Agreement.
    3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
    4. Words imparting the singular number shall include the plural and vice versa.
    5. References to any gender shall include the other gender.
    6. References to persons shall include corporations.
  2. Provision of the Services
    1. With effect from the Commencement Date, the Service Provider shall provide the Services and Deliverables to the Client on an Hourly or a Monthly basis.
    2. The Service Provider shall provide the Services and Deliverables with reasonable skill and care and in accordance with Australian standards.
    3. The Service Provider shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in the Agreement.
    4. The Service Provider shall be responsible for ensuring that it complies with all statutes, regulations, by-laws, standards, codes of conduct and any other rules relevant to the provision of the Services and Deliverables.
    5. During the term of the Agreement the Service Provider shall use all reasonable endeavours to accommodate any reasonable changes in the Services that may be requested by the Client which are not specified in the Agreement, subject to the Client’s acceptance of any related reasonable changes to the Fees that may be due as a result of such changes.
  3. Intellectual Property Rights In relation to the Client Materials:
    1. the Client and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
    2. the Client grants to the Service Provider a fully paid-up, non-exclusive, royalty- free, non-transferable licence to copy and modify the Client Materials for the duration of this Agreement for the purpose of providing the Services to the Client.
      3. In relation to the Service Provider Materials:
    3. The Service Provider and its licensors shall retain ownership of all Intellectual Property Rights in the Service Provider Materials.
      4. In relation to the Deliverables the Service Provider shall:
    4. upon receipt of all sums due under the Agreement, grant the Client, or shall procure the direct grant to the Client of a fully paid-up, worldwide, non- exclusive, royalty-free, licence to copy the Service Provider’s Materials for the purpose of receiving and using the Services and the Deliverables in the Client’s business during the term of this Agreement.
  4. Client’s Obligations
    1. The Client shall use all reasonable endeavours to provide all pertinent information to the Service Provider that is necessary for the Service Provider’s provision of the Services and Deliverables.
    2. The Client may, from time to time, issue reasonable instructions to the Service Provider in relation to the Service Provider’s provision of the Services. Any such instructions should be compatible with the specification of the Services provided in the Agreement.
    3. In the event that the Service Provider requires the decision, approval, consent or any other communication from the Client in order to continue with the provision of the Services and the Deliverables or any part thereof at any time, the Client shall provide the same in a reasonable and timely manner.
    4. If any consents, licences or other permissions are needed from any third parties, it shall be the Client’s responsibility to obtain the same in advance of the provision of the Services and the Deliverables (or the relevant part thereof). In the event that the Client fails to obtain any such consent, licence or other permission in accordance with this Clause 4 the Service Provider shall have the right to terminate the Agreement with immediate effect.
    5. Any delay in the provision of the Services and Deliverables resulting from the Client’s failure or delay in complying with any of the provisions of Clause 4 of the Agreement shall not be the responsibility or fault of the Service Provider.
  5. Fees and Payments
    1. The Client shall pay the Fees to the Service Provider in accordance with the provisions of Schedule Part 2 and this Clause 5. The Fees are exclusive of any applicable GST.
    2. The Service Provider shall invoice the Client for Fees due in on a monthly basis.
    3. All payments required to be made pursuant to the Agreement by the Client shall be made within 7 days of receipt of the relevant invoice unless otherwise agreed by the parties.
    4. All payments required to be made pursuant to the Agreement shall be made by bank transfer to the nominated bank account of the Service Provider, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.
    5. Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
  6. Liability, Indemnity and Insurance
    1. The Service Provider’s liability under the Agreement, and in breach of statutory duty, and in tort or misrepresentation or otherwise, shall be limited as set out in this section.
    2. Subject to Clause 6.3 (which for the avoidance of doubt lists the types of loss which are wholly excluded from the Service Provider’s liability under the Agreement) the total amount of the Service Provider’s liability is limited to the total amount of Fees payable by the Client to the Service Provider during the previous 12-month period payable under the Agreement.
    3. The Service Provider is not liable (whether caused by its employees, agents or otherwise) in connection with the Service Provider’s provision of the Services and Deliverables or the performance of any of its other obligations under the Agreement or the Quotation for:
      1. any indirect, special or consequential loss, damage, costs, or expenses or;
      2. any loss of profits; loss of anticipated profits; loss of sale or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, information or data; loss of reputation or goodwill; business interruption; or, other third party claims; or
      3. any failure to perform any of its obligations if such delay or failure is due to any cause beyond its reasonable control; or
      4. any losses caused directly or indirectly by any failure or the Client’s breach in relation to the Client’s obligations; or
      5. any losses arising directly or indirectly from the choice of Services and how they will meet the Client’s requirements or the Client’s use of the Deliverables.
    4. Nothing in these Terms and Conditions shall limit or exclude the Service Provider’s liability for death or personal injury caused by its negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
    5. The Parties shall ensure that for the duration of the Agreement it has in place suitable and valid professional indemnity insurance.
    6. The Service Provider shall not be liable for any loss or damage suffered by the Client that results from the Client’s failure to follow any instructions given by the Service Provider.
    7. The Client shall indemnify the Service Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Service Provider arising out of or in connection with:
      1. the Client’s breach or negligent performance or non-performance of this Agreement;
      2. any claim made against the Service Provider by a third party arising out of or in connection with the provision of the Services in cases where the claim is attributable to the acts or omissions of the Client or its employees;
      3. any claim made against the Service Provider as a result of the Client permitting the Service Provider with access to the Personal Data of the Client’s (or its customers) but only to the extent that the Service Provider has complied with Privacy Law and the terms of this Agreement when processing such personal data;
      4. any claim made against the Service Provider or any sums awarded by a court against the Service Provider as a result of or in connection with any claim brought against the Service Provider for infringement of any third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Client Materials by the Service Provider;
      5. any claim made against the Service Provider by a third party for death, personal injury or damage to property arising out of or in connection with the Services, to the extent that the death, personal injury or damage to property is attributable to the acts or omissions of the Client, its employees, agents or subcontractors; and
      6. any claim arising from loss or damage to any equipment belonging to the Service Provider caused by the Client or its agents or employees.
    8. Neither Party shall be liable to the other or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of that Party’s obligations if the delay or failure is due to any cause beyond that Party’s reasonable control.
  7. Warranty
    1. The Service Provider warrants that it will use reasonable care and skill in the performance of the Services.
    2. The Service Provider reserves the right to vary the Services in circumstances where such variation is deemed necessary by the Service Provider to comply with any applicable law, and the Service Provider will notify the Client as soon as reasonably practicable if this is necessary.
  8. Confidentiality
    1. Each Party shall undertake that, except as provided by Clause 8.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and two years after its termination:
      1. keep confidential all Confidential Information;
      2. not disclose any Confidential Information to any other Party;
      3. not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
      4. not make any copies of, record in any way or part with possession of any Confidential Information; and
      5. ensure that none of its directors, officers, employees, agents, sub- contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of Clauses 8.1.1 to 8.1.4 of the Agreement.
    2. Either Party may:
      1. disclose any Confidential Information to:
        1. any sub-contractor or service provider of that Party;
        2. any governmental or other authority or regulatory body; or
        3. any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services and Deliverables), or as required by law. In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under Clause 8.2.1.2 or any employee or officer of any such body) shall ensure that such body is bound by confidentiality and non-use obligations with respect to such Confidential Information which are no less onerous than those set out in the terms of this Clause 8 of the Agreement, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
      2. use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.
    3. The provisions of Clause 8 of the Agreement shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.
  9. Force Majeure
    1. No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, pandemic, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
    2. In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of force majeure for a continuous period of 14 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period. In the event of such termination, the Parties shall agree upon a fair and reasonable payment for all Services provided up to the date of termination. Such payment shall take into account any prior contractual commitments entered into in reliance on the performance of the Agreement.
  10. Term and Termination
    1. The Agreement shall come into force on the Commencement Date and shall continue until validly terminated in accordance with this Clause 10.
    2. Either Party may terminate the Agreement by giving to the other not less than 3 months’ written notice where the Personnel is providing the Services on a Monthly basis.
    3. Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
      1. it is within the Trial Period;
      2. the Personnel is providing the Services on an Hourly basis;
      3. any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 7 Business Days of the due date for payment;
      4. the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
      5. an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
      6. the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order;
      7. the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
      8. the other Party ceases, or threatens to cease, to carry on business.
    4. For the purposes of Clause 10.3.4, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.
    5. The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
  11. Effects of Termination Upon the termination of the Agreement for any reason:
    1. any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
    2. all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
    3. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
    4. subject as provided in Clause 11 of the Agreement and except in respect of any accrued rights neither Party shall be under any further obligation to the other;
    5. each Party shall (except to the extent referred to in Clause 8 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
  12. Data Processing
    1. Both parties will comply with all applicable requirements of the Privacy Law. This Clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Privacy Law.
    2. Without prejudice to the generality of Clause 12.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Service Provider and/or lawful collection of the Personal Data by the Service Provider on behalf of the Client for the duration and purposes of this Agreement.
    3. Without prejudice to the generality of Clause 12.1, the Service Provider shall, in relation to any Personal Data processed in connection with the performance by the Service Provider of its obligations under this Agreement:
      1. process that Personal Data only on the documented written instructions of the Client unless the Service Provider is required by Governing Law to otherwise process that Personal Data. Where the Service Provider is relying on Governing Law as the basis for processing Personal Data, the Service Provider shall promptly notify the Client of this before performing the processing required by the Governing Law unless the Governing Law prohibits the Service Provider from so notifying the Client;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. not transfer any Personal Data outside of Australia unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
        • the Client or the Service Provider has provided appropriate safeguards in relation to the transfer;
        • the data subject has enforceable rights and effective legal remedies;
        • the Service Provider complies with its obligations under the Privacy Law by providing an adequate level of protection to any Personal Data that is transferred; and
        • the Service Provider complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
      5. assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Privacy Law with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify the Client without undue delay on becoming aware of a Personal Data Breach;
      7. at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Governing Law to store the Personal Data; and
      8. maintain complete and accurate records and information to demonstrate its compliance with this Clause and immediately inform the Client if, in the opinion of the Service Provider, an instruction infringes the Privacy Law.
  13. No Waiver No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
  14. Further Assurance Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
  15. Costs Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.
  16. Set-Off Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under the Agreement or any other agreement at any time.
  17. Assignment and Sub-Contracting
    1. The Service Provider may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights under the Agreement and can subcontract or delegate in any manner any or all of its obligations to any third party.
    2. The Client shall not, without the Service Provider’s prior written consent, assign, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement.
    3. Subject to the provisions of Clause 12, the Service Provider shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Service Provider.
  18. Publicity Subject to the prior written consent of the Client, the Service Provider shall be permitted to publicise the relationship with the Client or use the Client’s name or other trademarks or service marks in any advertisement or publication but not disclose the terms of the Agreement.
  19. Relationship of the Parties Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
  20. Non-Solicitation
    1. Neither Party shall, for the Term of the Agreement and for a defined period of 6 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Agreement without the express written consent of that Party.
    2. Neither Party shall, for the Term of the Agreement and for a defined period of 6 months after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
  21. Third Party Rights
    1. The Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
  22. Notices
    1. All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
    2. Notices shall be deemed to have been duly given:
      1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
      2. when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
      3. on the fifth business day following mailing, if mailed by ordinary mail, postage prepaid.
      In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
  23. Entire Agreement
    1. Subject to the provisions of Clause 12, the Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
    2. Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
  24. Counterparts The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
  25. Severance In the event that one or more of the provisions of the Agreement and/or of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms and Conditions. The remainder of the Agreement and/or these Terms and Conditions shall be valid and enforceable.
  26. Law and Jurisdiction
    1. The Agreement and these Terms and Conditions (including any non- contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Queensland.
    2. Subject to the provisions of Clause 26 of the Agreement, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the non-exclusive jurisdiction of the courts of Queensland.

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