1. Application of these Terms

These Terms and Conditions (“Terms“) apply to every Estimate, Quote, Proposal, Statement of Work (“SOW“) and Invoice issued by Blackbriar Agency Pty Ltd as trustee for the Blackbriar Holdings Trust (ABN 25 440 652 195), trading as Blackbriar (“Blackbriar“, “we“, “us“), to a client (“Client“, “you“).

By accepting an Estimate or Proposal, instructing Blackbriar to begin work, or paying an Invoice, the Client agrees to be bound by these Terms.

Where Blackbriar and the Client sign a separate SOW or agreement for a specific engagement, that document and these Terms together form the Agreement for that engagement. If there is any inconsistency, the signed SOW prevails over these Terms to the extent of that inconsistency.

2. Definitions

Agreement

The agreement between Blackbriar and the Client for an engagement, comprising the applicable Estimate, Proposal or SOW, any Invoice, and these Terms.

Background IP

Intellectual Property Rights owned or controlled by a party before an engagement, or developed independently of it, including pre-existing tools, frameworks, methodologies and templates.

Deliverables

The specific documents, code, configurations, reports or other work product identified in an Estimate or SOW.

Fees

The amounts payable by the Client for the Services, as set out in the applicable Estimate, Proposal, SOW or Invoice.

Intellectual Property Rights

All rights conferred by statute, common law or equity in relation to copyright, patents, trade marks, designs, confidential information, know-how and similar rights, whether or not registered.

Personal Information

Has the meaning given in the Privacy Act 1988 (Cth).

Services

The consulting, advisory, technical or delivery services described in the applicable Estimate, Proposal or SOW.

3. Estimates and Engagement

1. Estimates and quotes are valid for 30 days from their date of issue unless stated otherwise, after which Blackbriar may revise them.
2. An engagement is formed when the Client accepts an Estimate or Proposal in writing (including by email), signs an SOW, or instructs Blackbriar to commence work — whichever happens first.
3. Unless an Estimate or SOW expressly states a fixed price, Estimates are a good-faith projection prepared on the information available at the time, and Services billed on a time-and-materials basis will be charged on actual time incurred.

4. Provision of Services

In performing the Services, Blackbriar will:

1. exercise the degree of skill, care and diligence reasonably expected of an experienced technology consultant;
2. keep the Client reasonably informed of progress and of anything likely to affect the timing, scope or cost of the engagement;
3. comply with applicable laws in performing the Services; and
4. not use the Client’s name, logo or trade marks in marketing without the Client’s prior written consent, except as permitted under clause 16 (Publicity).

5. Client Obligations

The Client must:

1. provide timely access to the information, personnel, systems, environments and decisions reasonably needed for Blackbriar to perform the Services;
2. ensure any data, credentials or system access given to Blackbriar are provided securely and on a need-to-know basis;
3. be available to review Deliverables and give feedback or approvals within the timeframes reasonably requested; and
4. obtain and maintain any third-party software licences needed for the engagement.

Blackbriar is not responsible for delays or additional cost caused by incomplete, incorrect or late information or access from the Client. Any extra work this creates will be treated as a Variation under clause 7.

6. Fees, Invoicing and Payment

1. Fees are exclusive of GST unless stated otherwise; GST (where it applies) is added to invoices at the prevailing rate.
2. Unless an Estimate or SOW states otherwise, Blackbriar invoices monthly in arrears or on completion of agreed milestones.
3. Invoices are due within 14 days of the invoice date, in full, without deduction, set-off or counterclaim.
4. Overdue amounts accrue interest at 2% per annum above the rate set out in the Penalty Interest Rates Act 1983 (Vic), calculated daily from the due date until paid.
5. Any dispute over part of an invoice must be raised in writing within 14 days of the invoice date, identifying the amount and reason in dispute; the Client must pay the undisputed balance by the due date, and the parties will work in good faith to resolve the rest.
6. Blackbriar may suspend the Services, on written notice, if an invoice remains unpaid more than 14 days after its due date.

7. Variations and Change Requests

Any change to the scope, timeline or Fees described in an Estimate or SOW must be agreed in writing between the parties before the additional work begins (“Variation“). Blackbriar is not obliged to perform work outside the agreed scope until a Variation has been agreed.

8. Intellectual Property

1. Each party keeps all Intellectual Property Rights it owned before the engagement, or develops independently of the Services (its Background IP).
2. Subject to the Client paying all Fees relating to the Deliverables in full, Blackbriar assigns to the Client all Intellectual Property Rights in the Deliverables created specifically for that Client, excluding any Background IP or Blackbriar tools, frameworks, methodologies or templates embedded within them.
3. Blackbriar grants the Client a perpetual, non-exclusive, royalty-free licence to use Blackbriar’s Background IP to the extent it is embedded in the Deliverables, solely to use those Deliverables for the Client’s internal purposes.
4. The Client grants Blackbriar a licence to use the Client’s Background IP and materials to the extent reasonably needed to perform the Services.
5. Where open-source or other third-party software is used or recommended, Blackbriar will act reasonably to flag any material licensing obligations to the Client, but is not liable for issues arising from the Client’s continued use, modification or licensing of that software after the engagement ends.

9. Confidential Information

1. Each party must keep confidential all non-public information disclosed by the other party in connection with an engagement (“Confidential Information“), and use it only to perform its obligations under the Agreement.
2. Confidential Information excludes information that is or becomes public through no fault of the receiving party, was already known to it without an obligation of confidence, or is independently developed.
3. A party may disclose Confidential Information to its professional advisers or insurers, or as required by law, provided it takes reasonable steps to protect its confidentiality.
4. This clause survives termination or completion of an engagement.

10. Privacy and Data

1. Each party will comply with the Privacy Act 1988 (Cth) when handling Personal Information obtained in connection with an engagement.
2. The Client will not provide Blackbriar with production data, real customer data, or Personal Information beyond what is reasonably necessary for Blackbriar to perform the Services, and will ensure any such data is provided under appropriate access controls.
3. Blackbriar will take reasonable technical and organisational measures to protect Client data and Confidential Information in its possession against loss, misuse or unauthorised access.

11. Warranties and Disclaimers

Each party warrants that it has full power and authority to enter into the Agreement, and that doing so does not breach any other obligation binding on it. Except as expressly stated in the Agreement, Blackbriar gives no other warranties, express or implied, including as to fitness for a particular purpose, to the extent permitted by law. Nothing in these Terms excludes a consumer guarantee that cannot lawfully be excluded under the Australian Consumer Law.

12. Limitation of Liability and Indemnity

1. To the maximum extent permitted by law, Blackbriar’s aggregate liability arising out of or in connection with an engagement is limited to the total Fees paid by the Client for the Services under that engagement in the 3 months preceding the event giving rise to the claim.
2. Neither party is liable to the other for indirect, special or consequential loss, or for loss of profits, revenue, goodwill, data or business opportunity, even if advised of the possibility of that loss.
3. The Client indemnifies Blackbriar against claims, losses and reasonable costs arising from the Client’s breach of the Agreement, or from materials or instructions the Client provides that infringe a third party’s rights — except to the extent caused by Blackbriar’s negligence or wilful misconduct.

13. Insurance

Blackbriar maintains, and will maintain during each engagement, public liability insurance and professional indemnity insurance with a reputable insurer, together with any workers’ compensation insurance required by law.

14. Term and Termination

1. An engagement continues until the Services are completed, or it is terminated under this clause.
2. Either party may terminate an engagement immediately on written notice if the other party materially breaches the Agreement and fails to remedy that breach within 14 days of written notice, or becomes insolvent.
3. The Client may terminate an engagement for convenience on 30 days’ written notice. Blackbriar may terminate an engagement for convenience on 60 days’ written notice, unless a shorter period is agreed in the relevant SOW.
4. On termination, the Client must pay for all Services performed and expenses properly incurred up to the effective date of termination. Amounts prepaid for work not yet performed are refunded pro-rata, unless the engagement states otherwise.

15. Force Majeure

Neither party is liable for delay or failure to perform its obligations (other than payment obligations) to the extent caused by circumstances beyond its reasonable control, provided the affected party notifies the other promptly and uses reasonable efforts to resume performance.

16. Publicity

Unless the Client advises otherwise in writing, Blackbriar may refer to the Client’s name and a general description of the engagement in its marketing materials, website and case studies. Any specific case study, quote or press release requires the Client’s prior written approval.

17. Non-Solicitation

During an engagement, and for 12 months afterwards, neither party will directly solicit or engage an employee or subcontractor of the other party who was involved in delivering or receiving the Services, without the other party’s prior written consent.

18. Dispute Resolution

Before starting legal proceedings (other than to seek urgent injunctive relief), the parties will attempt in good faith to resolve any dispute through discussion between senior representatives, within 14 days of one party notifying the other of the dispute in writing.

19. General

Entire Agreement

The Agreement is the entire understanding between the parties for the relevant engagement, and supersedes all prior discussions or representations on that subject matter.

Amendment

These Terms may only be varied by written agreement for an existing engagement. Blackbriar may update this page from time to time; the version current when a new engagement is accepted applies to it.

Assignment and Subcontracting

Neither party may assign or subcontract its rights or obligations without the other’s prior written consent, except that Blackbriar may use subcontractors to help deliver the Services while remaining responsible for their performance.

Severability

If any provision of these Terms is found unenforceable, the remainder continues in full force.

No Waiver

A failure to enforce any provision is not a waiver of that or any other provision.

Notices

Notices under the Agreement must be given in writing by email to the contact nominated in the applicable Estimate or SOW.

20. Governing Law

The Agreement is governed by the laws of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.

21. Contact

Questions about these Terms can be directed to hello@blackbriar.com