Terms of Engagement

Definitions

For the purposes of this document:

• “Agreement” refers to the terms outlined in this document / page.
• “BLACKBX” refers to Unrealty Pty Ltd trading as BLACKBX (ABN: 77 680 930 241).
• “Client” refers to any person who is undertaking work with BLACKBX and “Deposit” refers to the one off 30% payment of the agreed quote amount.
• “Services” refers to the work BLACKBX will undertake (excluding Deployment) in exchange for payment.
• “Party” refers to both BLACKBX and the Client.
• “Deployment” refers to Fees charged for publishing a digital product into a public domain and is often referenced on the Quotation.
• “Project Hold” refers to Services paused by the client indefinitely or Services that are delayed by the client for 30 days or greater.
• “Term” refers to the length of time in which the Services is estimated to last.
• “Quotation” refers to the document which lists the Services and associated Fees that BLACKBX will undertake.
• “Fees” refers to the total monetary value of the Services.
• “Schedule” refers to the agreed payment intervals of the Services.
• “Masters” refers to the original work created by BLACKBX in relation to the Services.
• “Content Management System” refers to the web application used so the Client can make non-technical content changes to the website.

The Client does not need to sign these terms to accept them, and instructing BLACKBX to continue work or payment of any invoice will be deemed acceptance of these terms.

This agreement contains the entire agreement between the parties and supersedes all previous correspondence and negotiations concerning the Services. This agreement is the primary agreement between the parties in relation to the Services and will be paramount to any terms attached to any purchase order, service request or other engagement terms provided to BLACKBX whether before or after the execution of this agreement by either party. This agreement may only be varied by BLACKBX executing a document explicitly using the words “This agreement varies BLACKBX’s Standard Terms of Engagement”.

Appointment and Term

The Client appoints BLACKBX as consultant to provide the Services during the Term. The Client acknowledges the term is an estimate only and the Term may vary depending on the requirements of the Services.

Services

In consideration of the payment of the Fees BLACKBX will provide the Services. BLACKBX will abide by any reasonable directions given by the Client with respect to the manner of delivery of the Services.

Quotation

BLACKBX will normally provide the Client with a Fixed Quotation prior to commencing the Services. A Fixed Quotation will be based on the hours estimated to complete the Services. It is up to the discretion of BLACKBX as to whether this quote should be varied to cover additional hours or extra Services not included in the Fixed Quotation. In some situations, BLACKBX will provide a project “Estimate” (this will be stipulated on the bottom of the quotation). This simply means that there will be an estimated amount of hours and indicative cost per hour. Each of these hours will be logged in time sheets. If work is required beyond what is included in the estimate, BLACKBX reserves the right to adjust the estimate accordingly to ensure that every hour spent on the Services is paid for by the Client. Every Quotation has a 30 day expiry date which starts from the date the Quotation was issued unless otherwise specified.

Deposit

Upon acceptance of the quotation, the Client is required to pay the Deposit amount for the agreed Services (the exact amount is usually stipulated on the Quotation). BLACKBX will not begin work until the Deposit is paid in full. In some situations, BLACKBX may vary the Deposit amount. The Client will be notified of their deposit amount in writing.

Fees

BLACKBX will provide a tax invoice to the Client for the Fees plus GST (“Fees”) according to the Payments set out in the Schedule. Fees payable as per contract payment terms. BLACKBX shall be entitled to charge interest at the rate of 5% per month calculated daily on any overdue Fees. The Fees may be reviewed by BLACKBX if the scope of the Services change and the Client will be given notice of any increase in the Fees. Any additional work required after the completion of the Services will be charged at the hourly rate available from BLACKBX upon request.

Payment Methods

All Fees can be made to BLACKBX via Direct Deposit. If other payment methods are required, it is the responsibility of the Client to pay all bank and currency fees associated with this. Likewise, if a client wishes to make an International Transfer in Australian Dollars or any other currency, all related fees will be charged to them.

Expenses

In addition to the Fees the Client will reimburse BLACKBX the actual costs of disbursements reasonably incurred by BLACKBX in carrying out the Services. Expenses are subject to prior approval by the Client.

Project Hold

In the event of a Project Hold, the client must pay for any un-billed work completed prior to the date of the Project Hold.

Refunds

After the payment of the Deposit, a full refund may be obtained only if:

1. It is requested within 5 days of the initial payment
2. No work has been undertaken by BLACKBX

If a refund is requested after work has begun or after a 5 day cooling off period, no refund will be given. Under no circumstance will a refund be given once BLACKBX has commenced work. The Client is expected to pay the full Fees upon delivery of the Services as listed in the Quotation. In the event of any type of non-payment, BLACKBX retains ownership of all completed work, can use it to their discretion and may also take further action to recoup funds.

Non-Payment

In the result of the client not being able to pay the quoted amount, by the deadline, the following conditions apply:

1. All work by BLACKBX will immediately cease
2. The Client forfeits their entire deposit payment
3. The Client will be given 1 week (7 days) to pay for any completed work (which will be outlined in a final bill sent by BLACKBX)
4. In the result of non-payment, steps may be taken by BLACKBX to recover any outstanding payments. This includes email and web hosting suspension in an attempt to recoup financial losses.
5. It is up to the discretion of BLACKBX as to whether the Website\Page(s) can be used

General

A link to BLACKBX Website will be placed on the Client’s Website\Page(s) in an agreed position, styling and size. BLACKBX also retains the right to include any Client’s work in their portfolio. If this is not wanted by the Client, they must specify it in writing to BLACKBX.

Intellectual Property

Intellectual Property contributed by Client will remain owned by Client. Upon completion of the Services and final payment of all Fees BLACKBX agrees to provide a royalty free perpetual license to the Client of all intellectual property rights created by BLACKBX in connection with the provision of the Services for use by the Client for the purposes of the Services. BLACKBX shall retain all Masters, rushes and other preparatory material and client (or third parties) will not be entitled to such originals, although client may request duplicate Masters to be provided at additional fees. Third party intellectual property will remain owned by such third parties, and Client appoints BLACKBX as agent to procure any use of third party intellectual property in relation to the Services.

Client Approvals

During the completion of Services there will be various stages of submission. This is where BLACKBX will present the work completed at the stage and will ask for client approval. At this stage, the client is entitled to as many amends as the budget allows. Once approval is received from the client, this is considered final and BLACKBX will move to the next stage of the Services. If, for some reason, the client would like to make changes after approval, this will be quoted as an addition to the Services and at an agreed hourly rate. Payment of the final invoice is deemed approval of the specified elements in the invoice. For online / digital projects, deploying a project to a public facing, live environment is also considered approval of all Services outlined in the Quotation.

Assistance

The Client will give BLACKBX, its employees and contractors all assistance reasonably requested by BLACKBX to enable BLACKBX to carry out the Services.

Employees

The Client will not, from the date of this Agreement to twelve months after completion of the provision of services by BLACKBX, solicit, employ or contract any employee or contractor of BLACKBX. The Client agrees that if it employs or engages any person directly, contrary to this clause it shall be liable to pay to BLACKBX liquidated damages in a once off amount equal to 30% of such person’s annual salary or annualised contracted amount (if a contractor) at the time of departing BLACKBX even if they have been employed or contracted by another organisation after departing BLACKBX and prior to being engaged or employed by the Client.

Warranty Period

On completion of the Services (excluding Deployment), there is a 30 day warranty period. This warranty period applies from the date the work is completed and submitted to the client and covers defects directly related to Services rendered by BLACKBX. A defect must inhibit a user from completing the desired action to be covered under this clause. Warranty does not apply to defects which are caused as a result of the actions of other parties, including the Client. If source files are modified by any party other than an employee of BLACKBX during the warranty period, warranty will automatically be terminated immediately. Warranty Period also does not cover modifications or additions to the Services, Quotation, specification or agreement which change the definition of the agreed scope of Services. Warranty Period does not cover any items not listed in the Services, Quotation, specification or agreement. If Services are submitted to the client and no feedback is provided during the warranty period, the Services will be considered final and additional amendments will be billed at an additional agreed hourly rate.

Administration Access

By default, all clients of BLACKBX will receive restricted access to their website / app. If requested, the client may request administration or full access. If accepted, BLACKBX will no longer be held responsible for security, unwanted changes or alterations to the website. If any issues arise that are directly related to the elevated privileges, BLACKBX is obliged to quote for these at an agreed hourly rate. If the request of full / administrator access is made during the warranty period (30 days), the warranty period will automatically be terminated. This also applies to the handover of source files. If source files are requested by the client during the warranty period, BLACKBX can no longer be held responsible for the website and therefore the warranty will be terminated.

Browser Testing

All websites will be tested in the following browsers on PC and Mac for desktop:

1. Microsoft Edge (latest versions)
2. Mozilla Firefox (latest verions)
3. Google Chrome (latest version)
4. Safari (latest version)

For mobile browsers, we support:

5. Latest versions of Chrome & Safari on screens greater than 320px wide.

If functionality in a browser other than the ones stated above is required, optimization can be undertaken at an agreed hourly rate.

Security

BLACKBX agrees to maintain a web hosting environment for the Client, provided that it is clearly stipulated in the Quotation, Estimate or Scope of Work. For Clients where web hosting is clearly included in the Services, we agree to maintain up to date server management software and firewall protection, provided that it supports the underlying website software such as Content Management System version, and also provided the Fees are sufficient to cover the Services. We do not take responsibility for security risks presented by out of date third party applications (such as Wordpress, Magento, SilverStripe and other Content Management Systems), digital development outside of the warranty period, security risks created by work that was not developed by BLACKBX, work that has been approved by external security parties and projects that are not hosted on our web servers. All content and data created or stored within a Content Management System (such as Silverstripe, Wordpress, Magento and others), including pages, forms, files and any personal or customer information belongs to and is the sole responsibility of the Client. BLACKBX is not responsible for that content or data, including its retention, deletion or compliance with privacy laws, nor for any data accessed or downloaded as a result of a compromised administrator account.

Confidentiality

Each party shall treat as confidential all information which comes into its possession, pursuant to or as a result of or in the performance of this Agreement, whether such information relates to the business, sales, marketing or technical operations of the other Party or the clientele of the other Party or otherwise. Neither Party shall, without the written permission of the other, disclose such confidential information to a third party.

Liability

BLACKBX will not be liable to the Client or any persons claiming under it in contract, tort or otherwise for or in respect of any direct, indirect, or consequential loss, damage, expense or injury suffered by the Client or any other person arising out of or relating to this Agreement or any delay, non-performance or error in information supplied to the Client by BLACKBX in connection with this Agreement or any services provided. Without limiting the foregoing, BLACKBX shall have no liability for circumstances beyond its control, including without limitation fire, theft, strike, lockout, force majeure, act of god, or act of terror.

Termination

Either Party may terminate this agreement by giving the other Party thirty (30) days written notice, or the parties may mutually agree in writing to a shorter notice period. This agreement will automatically terminate if: the Client enters into an arrangement or composition with creditors; an application is made for the appointment of a liquidator, controller, administrator, official manager, receiver and manager or similar officer or any of them is appointed; an event happens which would allow a court to wind the Client up; the Client ceases to carry on business or is unable to pay its debts; or the Client materially breaches this agreement and does not remedy the breach with fourteen (14) days of receiving notice from BLACKBX to rectify the breach or the breach is incapable of being remedied.

If this agreement is terminated for any reason the Client shall immediately pay to BLACKBX any part of the Fees which has accrued prior to the termination but has not been paid, including works performed but not yet invoiced. Upon payment BLACKBX shall deliver to the Client all books, records, plans, papers, models and information of any kind relating to the Services which are the property of the Client.

Unused Hours

From time to time, BLACKBX will provide a support agreement based on a number of hours to be used each month. This will be clearly stipulated in the quotation provided to the Client. These hours are recorded and reported on based on the total number stated in the quotation. If hours are not used in their entirety every month, they do not expire instantly. By default, the hours are rolled and can be used in following months. However, all hours do have an expiry date. This expiry date is 3 months after they were invoiced unless otherwise stated or agreed on prior.

The proper law of this agreement is the law of New South Wales. The parties submit to the jurisdiction of courts in New South Wales.