Terms of Business

Application

1. These are the Terms of Business on which we will provide the relevant Services to you in accordance with each Quote provided by us and accepted by you, in accordance with these Terms of Business.

Quotes

2. We will provide you with a Quote which sets out our Fees and Expenses for providing the Services (excluding any Fees and/or Expenses which we may charge in accordance with these Terms of Business) and the ‘Scope of Work’ of the Services. A Quote may be provided either as a formal document attached to our correspondence, or informally by email (for example, an email setting out the work to be done, the time it will take, and the resulting Fees, applicable GST and any anticipated Expenses). Depending on the nature of the work, Fees may be quoted as a fixed fee, calculated by reference to our hourly or day rate, or a combination of both, as set out in the Quote.

3. If any of the requirements, specifications or other content of a Quote is incorrect, incomplete or not clear to you, you must notify us in writing prior to accepting the Quote in accordance with clause 4 below. We will then confer with you and, if appropriate, issue a revised Quote for your acceptance.

4. You may accept a Quote by email or other written confirmation sent to us within 30 days of the date on which we sent the Quote to you. By accepting a Quote in this way, you authorise us to commence the Services described in that Quote in accordance with these Terms of Business, and the Services will commence without any further proposal, scoping document or sign-off step being required.

5. Where you are a company or other organisation, acceptance of a Quote by any employee, contractor or representative of yours acting with apparent authority (including, for example, a marketing assistant, office manager or executive assistant)
is a valid and binding acceptance of that Quote, and we are entitled to rely on that acceptance without further enquiry as to that person’s actual authority to bind you.

6. If you do not accept a Quote within the 30-day period referred to in clause 4 above, the Quote will be deemed withdrawn and may only subsequently be accepted by you with our written approval.

Supply of Services

7. We will supply the Services in accordance with the applicable Quote, as accepted by you in accordance with clause 4 above.

8. If you require, or we suggest, any changes to the Services, we may issue you with a revised Quote that incorporates such changes (unless the changes are minor, in which case we may choose to confirm them with you via email). If you accept the revised Quote, you must provide email confirmation to us within 7 days of the date on which we sent the revised Quote to you. If you do not accept the revised Quote in this way, we will continue providing the Services in accordance with the original Quote.

9. Where we provide timeframes or schedules for the provision of the Services, we will use reasonable commercial endeavours to deliver the Services within those timeframes. We do not give any guarantees or warranties in respect of delivery timeframes.

10. If you (or your suppliers or those engaged by you or that are acting on your behalf) delay giving us materials, information or feedback that we request, this may result in the delivery deadline changing and we are not liable to you in any way for such change or delay.

11. If a project stalls, is significantly delayed, or drags out beyond a reasonable timeframe due to your inaction (including delays in providing materials, information, feedback or approvals), we may issue an invoice for the Fees and Expenses referable to the Work completed to date, notwithstanding that the Services as a whole have not been completed, and you agree to pay that invoice in accordance with these Terms of Business.

12. If requested by you, we will recommend third party suppliers to you to supply goods or services not supplied by us. You will be responsible for contracting with such third-party suppliers and we will not be responsible for any failure or breach by, or dispute you may have with, such third-party supplier.

Fees and Expenses

13. In consideration for us agreeing to provide the Services, you agree to pay the applicable Fees and Expenses as set out in each Quote in accordance with these Terms of Business, time being of the essence.

14. You agree that the Fees and/or Expenses agreed in respect of a Quote may change if the parties agree changes to the Services (as such revised Fees and/or Expenses are identified in a revised Quote agreed in accordance with clause 8 above). Where Fees are calculated by reference to our hourly or day rate, the amount set out in the Quote is an estimate only, and the Final Fees will be calculated by reference to time actually spent providing the Services.

15. If there are minor changes to a Quote which are agreed by email in accordance with clause 8 above, you agree to pay such reasonable additional Fees and/or Expenses as we may charge for those minor changes.

16. If you do not pay the amount due in our invoice by the applicable due date, then in addition to any other rights we may have under this Agreement, we may charge interest on the late payment of such invoice, and such interest rate shall be 3% per month above the business overdraft rate of the Commonwealth Bank of Australia from time to time and shall be compounded daily from the due date. We may capitalise interest payments that have not been paid within one (1) month of the due date for payment of the applicable invoice.

Approval of Work and Revisions

17. Where appropriate, we will send Work to you at the completion of each stage of the Services so that you can approve that
stage of Work.

18. Each Quote includes up to two (2) rounds of revisions to the relevant Work, to be requested and consolidated by you within a reasonable time of our delivery of that Work. If you request further rounds of revisions beyond those included in the Quote, or revisions to Work you have already approved, we may charge additional Fees and/or Expenses for that further work, and will notify you of the applicable cost before carrying it out.

19. Where possible, you must be available to approve Work or attend photography shoots or press checks. In the event you cannot be available, we will make the necessary approvals on your behalf or we may reschedule. To the extent a rescheduling results in the incurring of additional Expenses, such as booking a further photography shoot, we may require you to reimburse those Expenses to us. Any approval made by us in the event that you are not available will be final, and we will not be responsible for any costs if a reprint or reshoot is required.

Materials and Content Supplied by You

20. If you provide information or materials to us, we will endeavour to ensure the safety and integrity of such information or materials but do not accept responsibility for any damage, loss or theft of such information or materials.

21. You warrant that the information or materials you provide to us, or that are provided to us on your behalf, will not:

(a) breach any rights (including Intellectual Property Rights) of any third party; or

(b) compromise the security or operation of our computer systems, through a virus or otherwise.

Payment

22. We will ordinarily issue tax invoices in respect of our Fees and Expenses on completion of the Services, or monthly for Services that run over an extended period, unless we notify you otherwise or alternative arrangements have been agreed with you.

23. You agree to pay the Fees and Expenses to us within 14 days of issue of a tax invoice, time being of the essence. If you require an extended payment term (for example, 30 days) to align with your own internal payment processes, this must be agreed between us in writing in advance of the relevant invoice being issued, and we may agree to such a request at our discretion.

24. Regardless of any extended payment term agreed under clause 23 above, if you fail to pay an invoice in accordance with the agreed payment term, interest under clause 16 above will accrue from the date that is 14 days after the date of issue of the relevant invoice.

25. All Fees and Expenses for any taxable supply are, unless otherwise stated, exclusive of Goods and Services Tax (GST).

26. You must pay all GST in addition to all other sums payable by you to us or to any third party. The amount of GST payable by you will be calculated by multiplying the sum payable for the supply by the relevant GST rate (presently 10%) and will be payable when you are required to pay for the supply.

Indemnity

27. You hereby indemnify, and agree to keep indemnified, Burrough Design and its contractors from and against all claims and/or loss in connection with:

(a) the use or implementation by us of any information, material or instructions provided by you or on your behalf;

(b) any breach of these Terms of Business by you; and/or

The indemnity in this clause is a continuing obligation and survives the expiration and/or termination of this Agreement.

Exclusion of Liability

28. To the maximum extent permitted by law:

(a) we do not warrant or guarantee that the use of the results of the Services, including the Works, by you will achieve a particular result or objective, or that it will generate any business, profit, revenue, benefit or goodwill;

(b) we will not be liable to you for any loss or damage that you suffer in relation to the non-provision or late provision of the Services by us to the extent that you (or your suppliers or those engaged by you or that are acting on your behalf), or a third party, engaged in an act or omission that prevented us from providing the Services to you in accordance with this Agreement;

(c) we will not be liable to you, and you waive any right you may have to claim, for any loss of income, loss of profit, loss of production, loss of contract, loss of customers, loss of data, loss of goodwill, loss of opportunity or loss of business, or any indirect, special or consequential loss or damage of any nature whatsoever arising under or in connection with this Agreement, whether in contract, tort (including negligence), under statute, in equity or otherwise; and

(d) our aggregate liability to you arising out of, or in connection with, the provision of the Services is capped at an amount equivalent to the total Fees received by us in respect of the applicable Services as at the date of calculation of liability.

Australian Consumer Law

29. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the Competition and Consumer Act 2010 (Cth) and corresponding provisions of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.

30. If any condition, statutory guarantee or warranty is implied into this Agreement or applies by operation of law (which may include the Competition and Consumer Act 2010 (Cth) and corresponding provisions of State or Territory legislation)
and cannot be excluded but we are able to limit our liability for a breach of such condition, statutory guarantee or warranty, our liability for breach of that condition, statutory guarantee or warranty is limited, to the extent permitted by law, at our discretion, to:

(a) in the case of goods: the replacement or repair of goods; or the supply of equivalent goods; or the payment of the cost of replacing the goods or having the goods repaired or of acquiring equivalent goods; and

(b) in the case of services: the supply of the services again or the payment of the cost of having the services supplied again.

31. Nothing in this Agreement shall operate to limit or exclude either party’s liability to the other for:

(a) death or personal injury caused by that party’s negligence;

(b) any liability in respect of your indemnity in clause 27 above;

(d) any other liability which cannot be limited or excluded by law.

Intellectual Property

32. You acknowledge and agree that all Intellectual Property Rights in the Work and in connection with the Services provided to you vest in, or will upon their creation vest in, Burrough Design.

33. Upon your payment to us in full of the Fees and Expenses owing in respect of the applicable Services, we will grant to you a worldwide, perpetual, exclusive licence to use the final Work delivered to you, subject to clause 34 below.

34. Burrough Design shall be entitled to use the final Work in relation to the promotion or advertisement of Burrough Design’s services (but not for any other purpose), unless you notify us in writing that you would prefer we not do so.

35. We warrant that the Work produced by us in the course of the Services will not infringe any third party’s Intellectual Property Rights. However, to the extent the Work incorporates information or material provided or required by you (or your suppliers or those engaged by you or that are acting on your behalf), we are not liable to you if the Work infringes the Intellectual Property Rights of a third party because of that information or material (this exclusion shall also apply in relation to information or material that you expressly instruct us to incorporate into the Work even if you did not provide that information or material to us).

Privacy

36. Subject to the terms of our Privacy Policy, we will only collect personal information from you for:

(a) providing the Services;

(b) conducting research and/or studies relating to the provision of the Services;

(c) to the extent permitted by law, notifying you of other services provided by us and other parties which may be of interest to you (subject to your right to opt out of such communications); or

(d) providing information to you which we believe may be useful or relevant to you having regard to your interest in the Services.

37. You give us permission to collect and store any personal details and other information provided by you in connection with the Services, in accordance with our Privacy Policy.

Data Storage and Retrieval

38. Burrough Design will take reasonable steps to store all Work (in digital form) for a period of up to three (3) years from completion of the applicable Services.

39. Burrough Design will take reasonable steps to ensure that regular backups of this digital archive are performed, and that Work is retained, but does not give any guarantees as to the availability of that Work.

40. You may obtain copies of previously supplied Work by requesting retrieval of such Work from our archive in writing to Burrough Design and by paying us an archival retrieval fee (as notified by us to you at the relevant time).

Termination

41. You may terminate this Agreement by notice in writing to us:

(a) without cause by giving us thirty (30) days written notice; or

(b) if we commit a material breach of this Agreement, and such breach is either incapable of remedy or we fail to remedy such breach within fourteen (14) days of receiving a notice in writing from you.

42. We may terminate this Agreement by notice in writing to you:

(a) without cause by giving you thirty (30) days written notice; or

(b) if you commit a material breach of this Agreement, and such breach is either incapable of remedy or you fail to remedy such breach within fourteen (14) days of receiving a notice in writing from us.

43. Upon termination of this Agreement pursuant to clause 41 or clause 42 above:

(a) our obligation to provide the Services ceases after the end of the notice period;

(b) each party’s rights and obligations accrued before termination are not affected;

(d) each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record keeping obligations;

(e) you must pay all outstanding Fees and Expenses to us within seven (7) days of service of the notice of termination;

(f) you must pay all Fees and Expenses to us within seven (7) days of receipt of our final invoice following termination of this Agreement in respect of all Services performed up to the date of termination; and

(g) clauses 21, 27 – 40, 44, 45 and 46 – 56 will survive termination.

Confidential Information

44. Each party (Recipient) agrees at all times during and for so long as is legally permissible after the term of this Agreement to keep confidential the Confidential Information of the other party (Disclosing Party) and will not disclose or discuss the same without the prior written approval of that other party, except:

(a) as specifically provided by this Agreement;

(b) to the extent permitted or required by law;

(d) to the extent required to instruct the Recipient’s professional advisers in relation to the preparation, completion and performance of this Agreement;

(e) where the information is or becomes public knowledge, other than as the result of a breach of a duty of confidentiality to the other party, and such public knowledge is notified and agreed in writing by the parties;

(f) where the information was known to the party before the date of this Agreement and such prior knowledge is notified and agreed in writing between the parties; or

(g) where the information becomes known to the party after the date of this Agreement other than as the result of a breach of a duty of confidentiality to the other party and such subsequent knowledge is notified and agreed in writing between the parties.

45. Other than as permitted pursuant to clause 44 above, neither party may sell, transfer, assign or otherwise dispose of or grant any licence in relation to any Confidential Information or make available copies (whether by photocopying, photographic reproduction or by electronically recorded data) of any Confidential Information to any third party other than with the prior written consent of the other party.

Force Majeure

46. Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of any party
will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to a Force Majeure Event.

47. In the case of the happening of any such Force Majeure Event, the time for performance required by a party under this Agreement will be extended for any period during which performance is prevented by the event.

48. Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds sixty (60) days, any party may immediately terminate this Agreement on providing notice to the other parties, such notice to take effect fourteen (14) days after the date of such notice.

Definitions

49. Unless the context requires otherwise, the following definitions apply to these Terms of Business:

(a) Agreement means the agreement comprising these Terms of Business and the associated Quote accepted by you in accordance with these Terms of Business.

(b) Burrough Design, we or us means the business trading as Burrough Design.

(c) Client, you or your means, in relation to any work that we do for you, the person named as the client in the Quote, or the person for whom Burrough Design undertakes/provides the Services.

(d) Confidential Information means information provided by or on behalf of a Party (Discloser) to the other Party or any of its representatives (Recipient) in relation to the Quote, our Fees, the Services and which (i) is communicated by the Discloser as being confidential; (ii) is by its nature, confidential; (iii) relates to the business affairs or operating processes of the Discloser; or (iv) the Recipient knows or ought to know is confidential, but does not include information which (v) is already known by the Recipient without breach of any obligation of confidentiality; or (vi) is in or becomes in the public domain other than through a breach of these Terms of Business by the Recipient.

(e) Expenses means all expenses, disbursements, or costs incurred by us on your behalf while providing the Services, including for example, the costs of materials, third party service provider hire, and/or studio booking fees.

(f) Fees means the amounts payable by you in respect of the Services, including the Final Fees and any additional fees which we are entitled to charge in accordance with these Terms of Business from time to time.

(g) Final Fees means the Fees the subject of our final invoice, billed to you on completion of the Services.

(h) Intellectual Property Rights means trade marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.

(i) Privacy Policy means our privacy policy, as amended from time to time.

(j) Quote means the document we provide to you setting out our Fees and Expenses and the Scope of Work for the Services, as described in clause 2 above, and as such document may be amended in accordance with this Agreement.

(k) Services means the design services provided to you from time to time as described in the applicable Quote.

(l) Work means any concepts, designs, artwork, images, ideas, presentations, or any other works or materials produced by us or on our behalf as part of the Services.

Governing Law

50. This Agreement is governed by and construed in accordance with the laws of New South Wales and the parties submit to the jurisdiction of the courts of New South Wales.

Other Matters

51. This Agreement constitutes the full and complete agreement between the parties relating to the subject matter contained herein and supersedes any and all previous agreements, understandings, negotiations and representations between the parties in respect of all matters dealt with in this Agreement.

52. This Agreement may only be amended, supplemented or replaced by a document in writing signed by the parties.

53. Any failure or delay by one party to compel performance by another party of any of the terms or conditions of this Agreement does not constitute a waiver of those terms or conditions.

54. A waiver by a party of a provision or of a right under this Agreement is only binding on the party granting the waiver if it is given in writing signed by that party and is only effective in the specific instance for which it is given.

55. A single or partial exercise of a right by a party does not preclude another or further exercise of that right or the exercise of any other right.

56. Any provision of this Agreement which is prohibited, unenforceable or invalid in whole or in part is only ineffective to the extent of the prohibition, unenforceability or invalidity and this does not affect the remaining part of that provision or the other provisions of this Agreement.

Download a copy of the Term of Business here.