Terms and Conditions
The General Terms and Conditions (hereinafter referred to as ” Terms”) are integrated and form an integral part of every Service Agreement agreed upon between Outsourced Doers Pty Ltd. (hereafter “ODPL”) and the Account specified in the said Service Agreement (hereafter “Founder”). The combination of the Service Agreement and these Terms are collectively known as the “Agreement” within this document.
1. Engagement of Personnel
ODPL will provide its Personnel to perform the Assignment as described in the Service Agreement, in accordance with these Terms. The Founder will not: (a) on-hire or re-supply the ODPL Personnel to any other party, unless agreed in writing with ODPL; (b) require any ODPL Personnel to undertake tasks outside of the hours of work set out in the Assignment Description, unless agreed in writing with ODPL; (c) request or require the personal email addresses or Skype names / addresses of any ODPL Personnel. Nothing in this Agreement will prevent ODPL or any of its Personnel from providing similar services to any other person.
2. Variation of the Assignment
The Founder may request a variation to the scope of the Assignment either on a temporary or permanent basis, by providing ODPL with a Variation Notice detailing the proposed variation. ODPL must respond to any Variation Notice within 10 Business Days of its receipt, setting out whether additional ODPL Personnel will be required to perform the Assignment, the additional fee and expenses payable for such Personnel and the anticipated effect on any project deadlines (if any). Upon receipt of the response, the Founder will advise ODPL if the proposed variation to the Assignment, project deadlines, Fee and/or Expenses is accepted, in which event it will become an Agreed Variation. In the absence of an Agreed Variation, both parties will continue to perform their obligations under this Agreement.
3. Fee for the Assignment
3.1 Timing and withholding or set-off. The Founder will: (a) pay ODPL the Fee and the Expenses at the time(s) and by the payment method specified in the Service Agreement; (b) must not seek to chargeback a credit card payment or otherwise seek to withhold, set-off or deduct any amount payable to ODPL under a Correctly Rendered Invoice; and (c) not pay any of the ODPL Personnel directly for the work they perform, expenses they may incur or allowance to which they may be entitled in respect of the Assignment. If the Founder does not comply with these clauses, ODPL will suspend the provision of ODPL personnel for the duration of the non-compliance and may terminate this Agreement in accordance with the terms of the Service Agreement.
3.2 Interest on late payments. ODPL may charge the Founder interest at a rate of 5% per annum, calculated daily on any part of the Fee or Expenses which remains unpaid from the due date until such amount is paid in full.
3.3 All-inclusive. Subject to clauses 3.4 and 3.5, the Fee and any Expenses includes all costs and expenses incurred by ODPL and any of its Personnel in connection with the performance of the Assignment.
3.4 Variation. ODPL may seek an Agreed Variation to the Fee to account for any increase in the cost of supplying services which has been caused or contributed to by changes to the Laws and/or regulatory environment in which ODPL operates.
3.5 Fee Adjustment – The Fee will be increased on an annual basis on each anniversary of the Agreement, by 3.5%.
4. Relationship of Parties
ODPL is an independent contractor. Nothing in this Agreement is to be construed as creating any partnership, joint venture or agency relationship between the parties. Except where expressly authorised in writing, neither party may: (a) hold itself out to be the Personnel, partner or joint venturer of the other party; (b) hold itself out as having the authority to make any commitment on behalf of the other party, and must not allow any of its Personnel to do so; (c) accept orders or enter into any agreement or arrangement in the name of or on account of the other party, or hold itself out as having the authority to do so; or (d)make, in the name of the other party, any representation or statement in relation to the other party.
ODPL may subcontract any part of the Assignment to an Approved Subcontractor that it considers has the necessary skills and/or experience to undertake the work. ODPL remains liable for the acts and omissions of all Approved Subcontractors, as if they were acts or omissions of ODPL and nothing in this clause derogates from ODPL’s obligations under this Agreement.
6. Access to Founder Property
The Founder will provide ODPL Personnel with access to the Founder Property (System logins, Project information, Customer database) to the extent necessary to perform the Assignment, provided that the relevant ODPL Personnel have been provided with any specific training, inductions or instructions that may be required by the Founder. Whilst using the Founder Property, ODPL Personnel must comply with all reasonable directions, security requirements, work health and safety policies and procedures made known to ODPL; not cause damage to the Founder Property; and not wilfully obstruct other users of the Founder Property. The Founder will ensure that any Founder Property provided for use by the ODPL Personnel: is in a state of good repair and safe to operate; is capable of being used for the purpose of performing the Assignment; is, in the case of any software or other information technology systems supplied by the Founder, free from any viruses or malware; and is not the subject of any third party Claim, including as to infringement of IP. If access to any Founder Property is temporarily denied or suspended by the Founder, the obligation of the ODPL Personnel to perform any obligation utilising that Founder Property will be correspondingly suspended without affecting the Founder’s obligations under the Agreement.
7. Records and information
If any part of the Fee is calculated by reference to time records or other Expenses incurred by ODPL, the accounts and records must record the receipts and expenses incurred in relation to the Assignment. ODPL must give the Founder access to records retained under this clause within a reasonable time of the Founder’s request and at no additional cost. The Founder must give ODPL access to, and copies of any information, which is necessary or desirable for ODPL to comply with its obligations under applicable Laws relating to anti-money laundering, counter-terrorism financing or the right of data subjects to anonymity.
8. Intellectual Property
8.1 Background IP. The Founder retains ownership of the Founder Background IP and any Improvements to it. Nothing in this Agreement conveys any title or interest in the Founder Background IP to ODPL. Founder Background IP means all IP created by or on behalf of the Founder before the Commencement Date or independently of its obligations under this Agreement, which is used or otherwise provided whilst performing the Assignment, excluding the Materials. ODPL retains ownership of ODPL Background IP and any Improvements to it. Nothing in this Agreement conveys any title or interest in ODPL Background IP to the Founder. ODPL Background IP means all IP created by or on behalf of ODPL before the Commencement Date or independently of its obligations under this Agreement, which is used or otherwise provided whilst performing the Assignment but excluding the Materials<
8.2 Project IP and Materials. Ownership of Project IP and Materials created by ODPL or its Personnel will immediately vest in the Founder. ODPL will, by itself and will procure its Personnel to, undertake all necessary acts and execute all documents to give effect to this clause. ODPL may use the Project IP and Materials for the purposes of: (a) performing the Assignment under this Agreement; and (b) improving its general processes and business practices. Project IP means IP created by ODPL or its Personnel whilst performing the Assignment or any other obligations under this Agreement, but excluding any Improvements to ODPL Background IP or Improvements to Founder Background IP
8.3 Licence of ODPL Background IP. If access to any ODPL Background IP is necessary in order to use the Project IP, ODPL will grant a royalty free, worldwide, non-exclusive licence (including a right of sub-licence) of ODPL Background IP in favour of the Founder, provided that: (a) such licence does not extend to the trade marks, company name, branding or other insignia of ODPL or any of its related bodies corporate; (b) the ODPL Background IP must not be adapted, modified or otherwise sub-licensed without the prior written consent of ODPL; and (c) the grant of the licence is subject to full payment of the Fee and any Expenses by the Founder.
8.4 Licence of Founder Background IP. The Founder grants ODPL a right to use the Founder Background IP: (a) to the extent necessary to perform the Assignment; and (b) to publicise and promote its performance of the Assignment for the Founder, except where expressly disallowed by the Founder.
8.5 Third party infringement claims. If either party becomes aware of a Claim from a third party alleging infringement of its Intellectual Property Rights arising from use of any of the ODPL Background IP, Founder Background IP, Materials or Project IP, that party must notify the other party as soon as reasonably practicable.
8.6 Branding and publicity. The Founder must not use the name of ODPL in any publicity, marketing or promotional material, or otherwise make it known that ODPL has entered into this Agreement, except with ODPL’s prior written consent. For the avoidance of doubt, ODPL provides its prior written consent to the Founder providing public testimonials which endorse or otherwise recommend ODPL or the Assignment performed by the ODPL Personnel.
9. Confidential Information
While performing the Assignment under this Agreement, each party may have access to or develop the other party’s Confidential Information. Each party may only use, copy or disclose the Confidential Information of the other party for the limited purpose of performing its obligations under this Agreement. The Founder is responsible for securing its Confidential Information (including any data) against loss and any unauthorised access, use or disclosure. To the maximum extent permitted by law, ODPL is released from any and all Claims associated with Confidential Information of the Founder which is used or disclosed by ODPL Personnel. Neither party may disclose the Confidential Information of the other party unless one or more of the following circumstances applies: (a) the disclosure is necessary in connection with performing obligations under this Agreement; (b) the disclosure is to the Personnel of the Recipient Party to the extent that they need to know the Confidential Information in order to perform a function in connection with this Agreement and have been advised of the confidentiality of the Confidential Information; (c) the disclosure is required by Law, in which case the Receiving Party must immediately notify the Disclosing Party of that fact to allow the Disclosing Party to seek a protective order or otherwise prevent or contest such disclosure; (d) the disclosure is reasonably made to a professional legal adviser or professional auditor; or (e) the Disclosing Party consents in writing to the disclosure. The consent may be subject to the condition that the person to whom the disclosure is to be made enters into a separate confidentiality agreement with the Disclosing Party. The Founder will maintain the confidentiality of any Personal Information of ODPL Personnel provided by ODPL and will not engage in any act, omission or practice that would cause ODPL to breach its obligations under the Privacy Act 1988 (Cth), or under any other Laws applicable to the use, handling or disclosure of Personal Information. The Founder is responsible for securing its Personal Information against loss and any unauthorised access, use or disclosure. To the maximum extent permitted by law, ODPL is released from any and all Claims associated with Personal Information of the Founder which is used or disclosed by the ODPL Personnel.
10. Warranties and acknowledgements
Each party warrants and represents to the other party that: (a) it is validly existing under the Laws of its place of incorporation or registration; (b) it has the power to enter into and perform its obligations under this Agreement; (c) it has taken all necessary action to authorise its entry into and performance of this Agreement; and (d) its obligations under this Agreement are valid, binding and enforceable against it according to its terms. As the ODPL Personnel work under the control, supervision and direction of the Founder, the parties acknowledge and agree that: (a) the Founder must provide ODPL with full and accurate information about the requirements relevant to the Assignment, by means of an Assignment Description; (b) ODPL makes no representation or guarantee that the Personnel will achieve a certain outcome, solve a particular problem, or attain a specific goal; (c) subject to clauses 10 (d) and 10 (e), ODPL will not be liable to the Founder for any Claim arising from or in connection with ODPL Personnel working under the control, supervision or direction of the Founder; (d) clause 10 (c) does not reduce the liability of ODPL, to the extent to which it may have contributed to any such Claim; and (e) nothing in this Agreement shall operate to exclude, restrict or modify or be read as having the effect of excluding, restricting or modifying: (i) the application of any or all of the provisions of any Law that implies a term into this Agreement or that creates any statutory consumer guarantee which cannot legally be excluded; or (ii) any liability of ODPL for failure to comply with such a term or provision, other than to the extent permitted by Law.
Beyond the termination rights outlined in the Service Agreement, a Non-defaulting Party may terminate this Agreement immediately by written notice to the other Party, if the other Party: (a) commits a breach of this Agreement that is not capable of being remedied; (b) commits a breach of this Agreement that is capable of being remedied, and fails to remedy the breach within 10 Business Days after the Non-defaulting Party has given a notice specifying the breach; or (c) suffers an Insolvency Event, to the extent that termination of this Agreement in accordance with this clause is permitted by Law. ODPL may terminate this Agreement immediately by written notice to the Founder if: (a) the Founder fails to make payment in line with the Agreement and fails to remedy the breach within 5 days after ODPL has given a notice specifying the breach; (b) ODPL has reasonable grounds to suspect that its Personnel are the subject of threats to their health or safety whilst performing the Assignment; or (c) the Founder engages in any act or omission directed at, or which could reasonably be expected to cause damage to the goodwill and reputation of ODPL. Upon termination of this Agreement for any reason, ODPL must: (a) subject to the Founder’s compliance with this clause, deliver to the Founder all Project IP and Materials; (b) subject to Intellectual Property clause, immediately return any Founder Background IP and other items supplied, owned or licensed by the Founder; (c) and immediately cease to use all of the Founder’s Confidential Information for any purpose and return or destroy (at the option of the Founder) copies of the Confidential Information. Upon termination of this Agreement for any reason: (a) ODPL is immediately entitled to any outstanding payment of the Fee and the Expenses for that proportion of the Assignment which was performed prior to the date of termination; and (b) subject to Intellectual Property clause, immediately return any ODPL Background IP and other items supplied, owned or licensed by the ODPL; and (c) immediately cease to use all of the ODPL Confidential Information for any purpose and return or destroy (at the option of ODPL) copies of the Confidential Information. Termination of this Agreement under this clause 14 will not affect: (a)any rights or remedies accrued by either party before the date of termination; and (b) any clauses which, either expressly or by their nature, are intended to survive the expiration or termination of this Agreement, including but not limited to clauses related to Intellectual Property, Confidential Information, Warranties and Acknowledgements, Limitation of Liability, No Solicitation, Non Compete, Notices and General Provisions.
12. Limitation of liability
Neither party will be liable to the other party for any Consequential Loss arising from, or in connection with, the performance of its obligations under this Agreement. To the maximum extent permitted by Law, ODPL’s liability for any breach of a condition, term or warranty in this Agreement (including a non-excludable guarantee under the Australian Consumer Law where the services are not ordinarily acquired for personal, domestic or household use or consumption and the guarantee does not arise under any of sections 51, 52 or 53 of the Australian Consumer Law) is at the option of ODPL limited to: (a) re-supply of the services; or (b) payment of the cost of having the services re-supplied.
13. Force Majeure Event
If a Force Majeure Event arises which prevents an Affected Party from performing its obligations under this Agreement: (a) as soon as reasonably practicable, the Affected Party must notify the other party of the obligations which will be affected by the Force Majeure Event; (b) the obligations of the Affected Party will be suspended for as long as the Force Majeure Event continues; (c) the Affected Party must use its best endeavours to mitigate the effect of the Force Majeure Event; and (d) neither party will be liable to the other party for any Claims the other party suffers or incurs as a result of that Force Majeure Event. Nothing in this clause will affect the obligation of either party to pay any money.
Each party will be responsible for effecting and maintaining any insurance it considers necessary or desirable in connection with the performance of its obligations under this Agreement, including: (a) public and product liability insurance; (b) workers’ compensation insurance in respect of its Personnel; and (c) professional indemnity insurance. The maintenance of any insurance policies in accordance with this clause does not in any way reduce, limit or otherwise affect any obligations, liabilities or warranties of either party under this Agreement or otherwise at Law.
15. Dispute Resolution
Subject to each party’s rights of termination under this Agreement, until the following dispute resolution process has been exhausted, neither party will resort to legal proceedings, except to seek injunctive or urgent declaratory relief in respect of a Dispute or any other matter arising under this Agreement. The parties agree to use their reasonable endeavours to resolve any Dispute by negotiation between the parties. If a Dispute arises between the parties which remains unresolved within 20 Business Days of commencement of negotiations between the parties, either party may refer the matter to mediation. If mediation fails to resolve a Dispute within 15 Business Days of commencement of the mediation (or such longer period as the parties may agree), either party may commence legal proceedings against the other party. Unless agreed otherwise between the parties, each party must continue to perform its obligations under this Agreement, despite entering any Dispute resolution process in accordance with this clause. Any materials provided by a party to another party in order to negotiate a resolution of a Dispute under this clause 18 may not be used for any other purpose.
Unless the contrary intention appears, the terms and phrases used in this clause have the meanings given to them in the GST Act and are for Australian GST registered ABN holders only. Unless otherwise specified in this Agreement, the consideration expressed in this Agreement for any taxable supply made under or in connection with this Agreement is the GST exclusive consideration. The recipient of a taxable supply under or in connection with this Agreement must, in addition to and at the same time as the GST exclusive consideration is payable, pay to the supplier an amount equal to the amount of GST imposed by the GST law from time to time on the taxable supply. The additional amount is not payable unless the supplier provides to the recipient a tax invoice and is otherwise in an approved form for GST purposes. To the extent that the consideration for the taxable supply consists of the reimbursement of costs and expenses incurred by the supplier, those costs and expenses must be: (a) reduced by the amount of any input tax credit available to the supplier; and (b) grossed-up for GST under this clause.
The Founder must not (a) during the term of this Agreement and for a period of 12 months thereafter, solicit, interfere with or endeavour to entice away or hire, in any capacity, whether as its own employee or through a third-party contractor, any staff member of other party involved in the provision of the Services under this Agreement, or counsel, procure, or assist any other person or entity to do so.; or (b) interfere with the relationship between ODPL and its customers, employees or suppliers, including by inducing, soliciting, canvass or approaching other founders of ODPL to: (i) cease the acquisition of certain goods or services from ODPL; or (ii) disclose confidential and commercially sensitive business strategies and operational training of ODPL, to the Founder. The prohibition in this clause begins on the Commencement Date and ends on the date that is 12 months after the End Date or the date that this Agreement is earlier terminated. The Founder acknowledges and agrees that: (a) all the prohibitions and restrictions in this clause are reasonable in the circumstances and necessary to protect the goodwill of ODPL’s business, its know-how, customer connections and Personnel; (b) that any combination of the acts referred to in this clause would be unfair to ODPL’s operations and calculated to damage the Business; (c) damages are not an adequate remedy if the Founder breaches this clause; and (d) ODPL may apply for injunctive relief if: (i) the Founder breaches or threatens to breach this clause; or (ii) it believes the Founder is likely to breach this clause.
During the duration of this Agreement, and for a subsequent period of 24 months, the Founder agrees not to establish, develop any interest in, or participate in any enterprise, business, or entity that directly or indirectly competes with ODPL’s business of providing outsourcing and offshoring services, considering financial, technical, operational, or other aspects. Despite the above, this clause does not prohibit the Founder from engaging in an outsourcing arrangement with another company.
Any notice given under or in connection with this Agreement must be in writing from the sender and must be sent to: (a) the physical or email address for the recipient specified in this Agreement; or (b) any other physical or email address which has been notified by the recipient to the sender as the recipient’s updated address for the purposes of this Agreement. Notices shall be deemed to be given: (a) if it is delivered by post, 5 Business Days after it is posted; (b) if it is delivered by hand, on the date of delivery; or (c) if it is delivered by email, as soon as the sender receives from the sender’s computer a report of an error free transmission to the correct email address. If the result under this clause 22.2 is that a notice would be taken to be given on a day that is not a Business Day, then it will be taken to have been given on the next Business Day.
20. General Provisions
20.1 Amendment. This Agreement may be amended: (a) immediately upon written notice from ODPL to the Founder, if the amendment: (i) will not, in the reasonable opinion of ODPL, adversely affect the Founder; or (b) will, in the reasonable opinion of ODPL, benefit the Founder, with such notice delivered by email to the last notified email address of the Founder; (b) in writing, by mutual agreement signed by both parties; (c) upon the expiration of twenty eight (28) days after written notice from ODPL to the Founder: (i) if the amendment will, in the reasonable opinion of ODPL, adversely affect the Founder; and (ii) the Founder has not, during the period of twenty eight (28) days after receipt of that notice, exercised its right to terminate this Agreement under Termination clause, with such notice delivered by email to the last notified email address of the Founder. If the Founder elects to terminate this Agreement due to an amendment which adversely affects the Founder, it must provide written notice to ODPL no later than twenty eight (28) days from the date of ODPL’s written notice. In that event: (a) ODPL will terminate this Agreement from the date of its receipt of the written notice from the Founder; and (b) the Founder will remain liable to pay for that part of the Assignment that has been performed by ODPL prior to the date of termination.
20.2 Assignment. Either party may assign, transfer, or sublicense this Agreement to a third party without obtaining prior written consent from the other party. Such assignment shall include the transfer of all rights and obligations under this Agreement. This Agreement shall remain binding and advantageous to the parties involved, as well as their respective authorized successors and assigns. Notwithstanding any assignment or transfer, the assigning party shall remain jointly and severally liable with the Assignee for the performance of its obligations under this Agreement occurring prior to the assignment or transfer.
20.3 No Waiver. No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
20.4 Further assurances. Each party agrees to do all things and sign all documents necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
20.5 No Merger. The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. Those rights and obligations will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
20.6 Costs and stamp duty. Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement. All stamp duty (including fines, penalties and interest) that may be payable on or in connection with this Agreement and any instrument executed under this Agreement must be borne equally by the parties.
20.7 Severability. A provision or part of a provision that is illegal or unenforceable may be severed from this Agreement and the remaining provision or parts of the provision continue in full force and effect.
20.8 Governing Law and Jurisdiction. This Agreement is governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.