Our Terms – outclasssolutions.com.au

Terms and Conditions

1. Engagement as Provider

1.1 By electronically accepting this agreement (being the Proposal and these terms and conditions) or paying for the Services, the Client engages Outclass Solutions to provide the Services to the Client, and Outclass Solutions hereby accepts that engagement and agrees to provide the Services to the Client in accordance with the terms of this agreement.

1.2 Outclass Solutions’ engagement with the Client will:

(a) commence on the Start Date; and

(b) unless terminated earlier in accordance with this agreement, will continue:

(i) for Project Clients, until the Services are complete; and

(ii) for Retainer Clients and Website Hosting Clients, indefinitely.

1.3 Outclass Solutions is a service provider to the Client, and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership, or joint venture between the parties.

2. Pricing and Invoicing

2.1 The parties have agreed that the price for the relevant Services (exclusive of GST and Expenses) (the Fees) and invoicing and payment schedule will be as designated in the Proposal, which may include a total price payable in stages for Project Clients and a monthly fee for Retainer Clients and Website Hosting Clients. Outclass Solutions will invoice the Client for all relevant Fees.

2.2 The Client will pay all reasonable expenses properly and necessarily incurred by Outclass Solutions in the course of providing the Services, provided that Outclass Solutions obtains the Client’s consent before incurring the expense if the amount is not included in the Proposal.

3. Client’s Responsibilities

3.1 The Client will:

(a) provide Outclass Solutions with timely and full instructions and other feedback when requested; and

(b) promptly advise Outclass Solutions of any changes to relevant personnel and contact details; and acknowledge that the Fees have been set with the expectation that the Client will adhere to these requirements, and a failure to do so may result in additional Charges being incurred, as notified in advance by Outclass Solutions.

3.2 The Client is solely responsible for:

(a) the contents of their website and Paid Ads and may be held legally liable or accountable for those contents (including without limitation in connection with infringement of intellectual property rights of any other party);

(b) isolating software and information, executing anti-contamination software, and otherwise taking steps to ensure that software or information, if contaminated or infected, will not damage the Client’s, Outclass Solutions’, or the Client’s users’ information or system.

4. Payment

4.1 Unless otherwise provided in the Proposal:

(a) for Retainer Clients and Website Hosting Clients, Fees are payable monthly in advance by direct debit, and all invoices are immediately due and payable;

(b) for Project Clients:

(i) 50% on entry into this agreement;

(ii) 25% on provision of a link to the draft website to the Client; and

(iii) 25% on the Go-Live date or 14 days after the provision of the draft website to you, whichever is earlier.

(c) other Charges due under or in connection with this agreement must be paid by electronic funds transfer into the account nominated by the other party, and invoices are payable within 7 days of receipt of the relevant invoice.

4.2 The Client must pay to Outclass Solutions all Charges properly invoiced pursuant to clause 2 in full.

4.3 Without affecting its other rights and remedies under this agreement, where Charges, including relevant stage-based Charges if set out in the Proposal, are outstanding, Outclass Solutions may:

(a) postpone, pause, or cancel the delivery of Services; and

(b) engage debt collectors to recover unpaid Charges, and the Client will indemnify Outclass Solutions for any costs incurred.

5. Retainer Specific Terms

5.1 Outclass Solutions will endeavour to help the Client achieve its online goals by providing advice, information, and technical services as described in the Proposal. However, and without limitation to clause 10.4, the Client enters into this agreement at their own risk and acknowledges that Outclass Solutions’ Services may not:

(a) lead to a particular commercial outcome;

(b) generate any increase in sales, business activity, or profits;

(d) lead to any clicks to your business or other information.

5.2 In accepting the terms of this agreement and providing credit card details, Retainer Clients also agree to the direct debit of Charges and the associated terms and conditions of Practice Hubspot Limited available at: https://legal.hubspot.com/legal-stuff.

5.3 The parties may agree to pause the Services, the running of Paid Ads (which Outclass Solutions will arrange), and associated Charges for no longer than 6 months with such agreement to be reached no less than 7 days prior to the next invoice and having confirmed the date the pause will end. On the date the pause ends, the Services, the running of Paid Ads, and associated invoice and billing activities will recommence. Notice of termination pursuant to clause 11.2 can only be given after the pause has ended.

Paid Advertising Specific Terms

5.4 The Client gives Outclass Solutions permission to access the Client’s Paid Ads account for the purposes of optimisation and management of the Client’s online business.

5.5 If Outclass Solutions is setting up a Client’s Paid Ads account, the Client will provide timely assistance and acknowledges that account setup may take up to a week or longer if further information is required from the Client.

5.6 The Client acknowledges that while Outclass Solutions may have affiliations with Paid Ads platforms (for example, as a Google Partner and some team members being Google Certified Individuals), Outclass Solutions is a separate entity from the Paid Ads platform. The Client’s Paid Ads account with the relevant platform remains the Client’s property and responsibility at all times, including:

(a) Compliance with Paid Ads platforms’ terms and conditions;

(b) Maintaining the secrecy of your username and password and managing the use of the account using your username and password. Should the Client become aware of a breach of security or unauthorised use of the Client’s username and password for a Paid Ads account, the Client must notify Outclass Solutions immediately; and

(c) Costs payable directly from the Client to the Paid Ads Platform (for example, per click fees for GoogleAds or Meta fees to boost posts). Termination of this agreement does not automatically stop Paid Ads from running and the Client incurring costs with Paid Ads platforms. If the Client would like Outclass Solutions to cancel advertising on termination, please notify Outclass Solutions in writing. Alternatively, the Client can make arrangements directly with the Paid Ads platforms.

SEO Specific Terms

5.7 Outclass Solutions’ Search Engine Optimisation services (SEO) are provided to the Client on an as-is and as-available basis, and any new features introduced that augment or enhance the services will be subject to this agreement.

6 Project Specific Terms

6.1 Outclass Solutions will endeavour to help the Client obtain its online goals by providing advice, information, and technical services as described in the Proposal. However, and without limitation to clause 10.4, the Client enters into this agreement at their own risk and acknowledges that:

(a) Outclass Solutions’ Services may not:

lead to a particular commercial outcome;
generate any increase in sales, business activity, or profits;
provide a certain return on investment or ranking; and

(b) websites from Outclass Solutions cannot be used to disseminate, communicate, store, or transmit:

content sexually-explicit in nature;
information that contains viruses, worms, or malicious elements;
copyright-infringing data;
trade secret protected data;
data that infringes on any intellectual property, publicity rights, or privacy rights;
defamatory, harassing, or threatening content;
relates to illegal business operations or schemes;
contains deliberately misleading, incomplete, or deceptive content; or
is deemed inappropriate by Outclass Solutions.

6.2 Irrespective of anything set out in this agreement, Outclass Solutions may invoice for the final payment if the Services are complete other than that the Client has decided to delay or not proceed with the Go-Live.

7. Website Hosting and Maintenance Specific Terms

7.1 Without limitation to clause 10.4, Website Hosting Clients enter into this agreement at their own risk and acknowledge that:

(a) Outclass Solutions does not review, verify, or otherwise certify or endorse the contents of the Client’s website;

(b) websites hosted by Outclass Solutions cannot be used to disseminate, communicate, store, or transmit:

content sexually-explicit in nature;
information that contains viruses, worms, or malicious elements;
copyright-infringing data;
trade secret protected data;
data that infringes on any intellectual property, publicity rights, or privacy rights;
defamatory, harassing, or threatening content;
relates to illegal business operations or schemes;
contains deliberately misleading, incomplete, or deceptive content; or
is deemed inappropriate by Outclass Solutions.

7.2 In accepting the terms of this agreement and providing credit card details, Website Hosting Clients also agree to the direct debit of Charges and the associated terms and conditions of Practice Hubspot Limited available at: https://legal.hubspot.com/legal-stuff.

8 Confidentiality and Intellectual Property

8.1 Subject to the exceptions below, the parties agree to:

(a) keep all Confidential Information confidential;

(b) not copy or otherwise record, use, or exploit any Confidential Information in any way except in the proper performance of the obligations in accordance with this agreement; and

8.2 A party may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information, but only in the proper performance of its duties under this agreement, and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

8.3 Confidentiality obligations do not apply to information that was known on a non-confidential basis prior to receipt from the disclosing party, is or becomes generally available to the public in circumstances that do not constitute a breach of this agreement, or which is required by law or court order to be disclosed.

8.4 The parties agree that all Intellectual Property Rights in deliverables produced for the Client that Outclass Solutions makes or develops in the course of the provision of the Services (Relevant IP), will be owned by and vest in the Client.

8.5 Upon receipt of full payment of the Charges, Outclass Solutions assigns, transfers, and conveys to the Client all current and future right, title, and interest in all Relevant IP, and acknowledges that all future Relevant IP will vest in the Client on and from creation.

8.6 The Client acknowledges that any stock images incorporated in deliverables are not owned by Outclass Solutions and are not included within the Relevant IP. The Client may contravene usage rights by editing, resizing, or reusing these images. Outclass Solutions will endeavour to assist the Client in contacting image owners should the Client wish to explore further licensing rights.

8.7 Outclass Solutions may use and reproduce any Relevant IP and marketing data and analysis relevant to Services provided to the Client for the purposes of advertising and marketing its services.

9 Non-Disparagement

9.1 On and from the date of this agreement, each party must not make a statement or other communication in any way (or solicit or encourage any other person to do so) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party, and must take all reasonable steps to prevent its Representatives from doing so. This clause does not apply to any statement or disclosure required by law or court order.

10 Liability and Remedies

10.1 The Client irrevocably indemnifies and covenants to hold Outclass Solutions harmless from and against all Losses that may be suffered by Outclass Solutions which arise in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct of the Client.

10.2 Each indemnity contained in this agreement is an additional, separate, independent, and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence, and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full. No one indemnity limits the generality of any other indemnity.

10.3 The Client acknowledges that internet services are inherently subject to technical failures and disruptions from time to time.

10.4 To the maximum extent permitted by law, Outclass Solutions and its Representatives expressly:

(a) (Disclaimer of warranties) disclaim all conditions, representations, and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Without limitation to the foregoing, Outclass Solutions and its Representatives make no representation and provide no warranty or guarantee that:

the Client will achieve any particular results from the provision of the Services;
any particular individuals will perform the Services on behalf of Outclass Solutions; or
the Services will be:
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   (A) uninterrupted, error-free, or that errors or defects will be corrected; or

   (B) meet the Client's requirements or expectations; or
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- that any information made available from Outclass Solutions to the Client will:
  
  (A) be free of infection by viruses, worms, Trojan horses, or anything else manifesting contaminative or destructive properties; or
  
  (B) not contain adult-oriented material or material which some individuals may deem objectionable; or
  
  (C) suitable to publish on the Client’s websites or in Paid Ads.

(b) (Force majeure) exclude liability for any damage and/or delay in the performance of any obligation of Outclass Solutions under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of Outclass Solutions; and

(c) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against Outclass Solutions under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at Outclass Solutions‘ sole discretion):

re-supply of the Services;
payment of the costs of supply of the Services by a third party; or
the refund of any amounts paid by the Client to Outclass Solutions under this agreement in respect to the Services, even if Outclass Solutions has been advised of the possibility of such Losses.The Client acknowledges and agrees that Outclass Solutions holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

10.5 Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 5 (Confidentiality and Intellectual Property), clause 9 (Non-disparagement), or clause 12 (Non-solicitation), damages may not be an adequate remedy, and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.

11 Termination

11.1 If a party commits any material or persistent breach of this agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing. If the Defaulting Party fails to remedy the breach within 20 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate this agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.

11.2 For Retainer Clients:

(a) the Client may, without limitation to its rights under clause 11.1 and after meeting with Outclass Solutions to discuss the proposed termination, terminate this agreement at any time by giving notice to Outclass Solutions, and that notice will be effective:

if the notice is given 14 days or more prior to the next invoice due date, the date prior to the next invoice due date;
if the notice is given less than 14 days prior to the next invoice due date, one calendar month from the date of the next invoice.

(b) Outclass Solutions may, without limitation to its rights under clause 11.1, terminate this agreement at any time by giving at least 14 days’ notice prior to the next invoice due date to the Client.

11.3 For Website Hosting Clients:

(a) the Client may, without limitation to its rights under clause 11.1 and after meeting with Outclass Solutions to discuss the proposed termination, terminate this agreement at any time after the date that is one year after the Start Date, by giving notice to Outclass Solutions, and that notice will be effective:

if the notice is given 14 days or more prior to the next invoice due date, the date prior to the next invoice due date;
if the notice is given less than 14 days prior to the next invoice due date, one calendar month from the date of the next invoice.

11.4 In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

(a) the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination; and

(b) Outclass Solutions will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination, and clause 3 will apply in respect thereof.

11.5 Upon the cessation of Outclass Solutions’ engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, Outclass Solutions will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.

11.6 Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

11.7 The obligations of the parties under clause 5 (Confidentiality and Intellectual Property), clause 9 (Non-disparagement), clause 10 (Liability and remedies), clause 12 (Non-solicitation), and this clause 11 will survive the termination of this agreement.

12 Non-Solicitation

12.1 During Outclass Solutions’ engagement with the Client under this agreement and for each non-solicitation period (which means each of 3 months; 6 months; 9 months; 12 months) thereafter, the Client must not, without Outclass Solutions’ prior written consent (which Outclass Solutions may withhold or delay in its absolute discretion), directly or indirectly:

(a) (non-solicitation of suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between Outclass Solutions and any of Outclass Solutions’ suppliers, distributors, or joint venture partners, or identified prospective suppliers, distributors, or joint venture partners; or

(b) (non-solicitation of staff) induce, encourage, or solicit any of Outclass Solutions’ officers, employees, contractors, or agents to cease their employment, engagement, or agency with Outclass Solutions.

12.2 The Client acknowledges and agrees that the restraints in this clause constitute several separate covenants and restraints, each of these is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect Outclass Solutions’ goodwill and business. The Client has received substantial and valuable consideration, including its receipt of the Services, and breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage Outclass Solutions’ goodwill and business and would lead to substantial loss to Outclass Solutions.

13 Trustees

13.1 Each trustee enters into this agreement only in its capacity as trustee of the relevant trust and in no other capacity, and no party may sue a trustee in any capacity other than as trustee of the relevant trust.

13.2 All liabilities and obligations arising under or in connection with this agreement can be enforced against a trustee only to the extent to which it can be satisfied out of the property of the relevant trust out of which the applicable trustee is actually indemnified for the liability.

14 General

Further assurances

14.1 Each party must promptly execute and deliver all such documents and do all such things as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

GST

14.2 The terms used in the following clauses have the meanings given to them in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

14.3 The Client must pay to Outclass Solutions any applicable taxes on a taxable supply made under this agreement and other taxes or duties payable or payable by Outclass Solutions in addition to any amounts owed under this agreement and in the same manner as making payment of any monetary consideration on which the tax is calculated.

14.4 Unless stated otherwise, any sum payable, or amount used in the calculation of a sum payable is exclusive of GST.

No set-off or deduction

14.5 Unless otherwise agreed in writing, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction, or claim to a lien whatsoever.

Notice

14.6 A notice or other communication required or permitted to be given by a party to another must be in writing and sent to the other party’s last known email address.

Entire agreement

14.7 This agreement contains the entire understanding between the parties and supersedes any previous arrangement, understanding, or agreement relating to its subject matter. In case of inconsistency between these terms and conditions and the Proposal, the Proposal will prevail unless expressly provided otherwise.

Amendment

14.8 For Retainer Clients and Website Hosting Clients, this agreement (including Fees) can be modified at any time by Outclass Solutions. Reasonable notice will be provided in writing. The Client will be deemed to have accepted the variation with effect from the date of Outclass Solutions’ next invoice after receiving notice of the variation if the Client pays the invoice or continues to use the Services after that invoice is delivered.

14.9 Other than as set out in clause 14.6 above, this agreement may not be varied except in writing as agreed between the parties.

Assignment

14.10 A party must not assign or otherwise transfer, create any charge, trust, or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without giving prior written notice to the other party.

Subcontracting

14.11 In delivering the Services, Outclass Solutions may use subcontractors, agents, or other providers.

No waiver

14.12 No failure, delay, relaxation, or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right or preclude any other or future exercise of it or of any other power or right under this agreement.

Severability

14.13 If a provision of this agreement is invalid or unenforceable in a jurisdiction:

it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
that fact does not affect the validity or enforceability of that provision in another jurisdiction, or of the remaining provisions.

Counterparts and electronic exchange

14.14 This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

14.15 Delivery of an executed counterpart, including via email, Hubspot, Docusign, or similar, in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

Governing law and jurisdiction

14.16 This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with the laws of Queensland, Australia.

14.17 The parties irrevocably agree that the courts of Queensland, Australia, have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

15 Definitions and Interpretation

Definitions

15.1 The following definitions apply in this agreement unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday, or public holiday) when banks in Brisbane, Queensland, are open for business.

Charges means Fees and Expenses.

Claim means any actual, contingent, present, or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action, or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance, or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute, or otherwise; whether direct or indirect.

Client means the party that will receive the Services as named in the Proposal.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors, or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

any information that is specifically designated by any of them as confidential;
any information which, by its nature, may reasonably be regarded as confidential;
any information relating to any:
- agreements, arrangements, or terms of trade with any existing or prospective customers, clients, suppliers, distributors, or joint venture partners, or other contractual counterparties;
- customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations, or processes; or
- Intellectual Property Rights, of any of them; and
any note, calculation, conclusion, summary, or other material derived or produced partly or wholly from any such information;
negotiations in relation to, and the terms of, this agreement, whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible, or any other form, relating to Outclass Solutions or any related entity of Outclass Solutions, including but not limited to any specifications, formulae, know-how, concepts, inventions, ideas, software, designs, copyright, trade secrets, or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies, or any other matter.

Expenses mean the expenses of Outclass Solutions for which Outclass Solutions is entitled to be reimbursed by the Client pursuant to clause 2.2.

Fees has the meaning given in clause 2.1.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets, and marketing secrets), and any other intellectual property rights, in each case whether registered or unregistered, including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency, or other liability of any kind or character, whether arising in contract, negligence, tort, equity, statute, or otherwise; and that a party pays, suffers, incurs, or is liable for, including all:

liabilities on account of tax;
interest and other amounts payable to third parties;
legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending, or settling any Claim; and
all amounts paid in settlement of any Claim.

Paid Ads means advertisements and other social media posts on platforms described in the Proposal, which may include GoogleAds, Meta, TikTok, Pinterest, and LinkedIn.

Project means a project of the type of engagement described in the Proposal, for example, a project for website development, and Project Clients means those Clients who engaged Outclass Solutions to undertake a Project.

Proposal means the document headed “Proposal” or similar setting out the scope of the Services and Fees as provided by Outclass Solutions to the Client.

Provider means Outclass Solutions (ABN 95963518823) trading as Outclass Solutions.

Representatives means, in respect of a person, the employees, officers, consultants, agents, and professional advisers of that person.

Retainer means the monthly Fee for Services if that is the means of engagement described in the Proposal, and Retainer Clients means those Clients who are paying a Retainer.

Services means the services provided by Outclass Solutions to the Client under this agreement, as set out in the Proposal.

Start Date means the date of this agreement or such other date as the parties may agree in writing.

Website Hosting Clients means those Clients who engaged Outclass Solutions to provide website hosting and maintenance services if that is the type of engagement described in the Proposal.

Interpretation

15.2 The following rules of interpretation apply in this agreement unless the context requires otherwise:

headings in this agreement are for convenience only and do not affect its interpretation or construction;
no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
all monetary amounts are in Australian currency; and
a reference to a “liability” includes a present, prospective, future, or contingent liabilit