Terms of Business for Design Services

The following terms shall apply to all design services provided by DEEP to Client.

DEEP may on request pitch for such work (a “Pitch”) and/or provide such advice in accordance with a brief agreed in writing (“the Services”). In the event of an unsuccessful Pitch Client will not use any designs documents concepts ideas or information provided as part of the Pitch and will return all materials delivered to it as part of the Pitch.

If Client shall have any complaint about the quality of the Services or goods provided as part of the Services then notice shall be given to DEEP within seven days of delivery. In the absence of such notification Client shall be deemed to have accepted the supply.

  1. Supply of the services

1.1              DEEP shall provide the Services to Client in accordance with this Agreement. Any changes or additions to the Services or this Agreement must be agreed in writing between DEEP and Client.

1.2             Client shall supply DEEP, at Client’s own expense, with a copy of all necessary materials, data or other information required by DEEP to provide the Services to Client subject to and compliant with relevant laws, regulations and/or codes of practice including but not limited to the Data Protection Directive (95/46/E C) and the General Data Protection Regulations.

1.3             DEEP shall not be responsible for any shortcomings in information provided by Client and Client accepts that Client’s knowledge and experience in Client’s industry sector and the manufacture, processing and packaging of Client’s goods/services is vital in this regard. Client shall be responsible for and DEEP is not obliged to check or verify the accuracy of material supplied by Client.

1.4             Client warrants to DEEP that Client owns the copyright and all other rights in material, data or other information supplied and that Client has the required legal permission to use and reproduce such material, data or other information.  Client further warrant that the use of such material, data or other information in the Services will not infringe the rights of any third party or any regulations.

1.5             DEEP may make any changes to the Services, which are reasonably necessary to comply with any applicable safety or other legal or similar requirements.  DEEP undertakes to notify Client as soon as possible before making such changes and in circumstances where prior notification is not reasonably practicable, to notify Client as soon as possible after such changes have been made.

1.6             The delivery times of the Services stated by DEEP are reasonable estimates and DEEP shall not be responsible for any delay that is not directly attributable to the fault of DEEP. Time shall not be of the essence of the contract unless it is expressly agreed in writing.

 

  1. Fees charges and payments

 

2.1

2.1.1          Client shall pay the agreed Fees as set out in the Estimate or Scope of Works to DEEP in addition to any costs and expenses incurred by DEEP on Client’s behalf in respect of the provision of the Services.

2.1.2          Invoices shall be paid by Client in full within 30 days of the date of each invoice.

2.1.3          If payment is not made on the due date, DEEP shall be entitled, without limiting any other rights we may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4 % above the base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full.

2.1.4          The final cost for the Services may in certain circumstances be higher than the estimated or agreed Fees. DEEP reserves the right to charge additional Fees if Client does not keep to agreed timescales and causes delay or Client requests significant changes to the Services that were not included in the original estimate.

2.1.5          DEEP reserves the right to employ a third party to carry out any of the work connected to the Services and to purchase any necessary material from third party suppliers.  Such third-party services and materials will be charged to Client at cost plus an additional 10 per cent administrative fee.

2.1.6         DEEP reserves the right to invoice Client for expenses incurred in the provision of the Services such as incidental expenses such as travel charges.

2.1.7          Any estimate for a whole or part of the Contract Price shall remain valid for 3 months and is given in good faith and shall be treated as an estimate only and all errors and omissions shall be accepted.

2.1.8         Title to or license to use any property or intellectual property forming part of the Services shall pass to Client when and only when the full Contract Price for the Services has been paid and DEEP and Client will be deemed to be holding any physical property not paid for in safe keeping on DEEP’S behalf so that in default DEEP will be entitled to recover such property from Client’s premises.

2.1.9          Where the Estimate or Scope of Works is quoted in stages then each stage shall be undertaken in accordance with these conditions and DEEP shall invoice out each stage when it is complete.

2.1.10        For new business DEEP may, at its discretion, invoice up to Fifty percent (50%) of the total estimated fees and/or costs in advance and DEEP reserves the right not to commence work until this has been settled.

2.1.11         Some approved third-party costs may be invoiced prior to commissioning and DEEP reserves the right to wait until such costs have been paid before commencing work.

 

2.2.

2.2.1          Where the Services are provided for a fixed price:

(a)      The total price for the Works shall be the amount set out in a Statement of Work or Estimate supplied.

(b)      Unless otherwise stated in a Statement of Work or Estimate the total price shall be paid to DEEP in instalments, as set out in a Statement of Work or Estimate.

(c)      When an instalment is due, DEEP shall invoice Client in British Pounds for the charges that are then payable, together with costs and expenses (and VAT, where appropriate) and provide a detailed breakdown of any costs and expenses, accompanied by the relevant receipts.

 

2.2.2         Unless otherwise stated in a Statement of Work or Estimate, any fixed price or hourly rate contained in a Statement of Work or Estimate excludes:

  • the cost of hotel, subsistence, travel and other ancillary expenses reasonably and properly incurred by members of Deep’s Team in connection with the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by DEEP for the supply of the Services, which expenses, materials and third party services shall be invoiced by DEEP at cost, with the exception of Production Costs, which shall be invoiced at a maximum of 20% mark up by DEEP.
  • VAT, which DEEP shall add to its invoices at the appropriate rate.

2.2.3         Client shall pay each invoice which is properly due and submitted to it by DEEP, within 30 days of receipt, to a bank account nominated in writing by DEEP. Client acknowledges that payment terms for invoices issues in respect of some costs and expenses may need to be paid more promptly than within 30 days of receipt in order for such third parties to commence work and for defined milestones to be met. The parties shall mutually agree such payment terms in writing (if possible, in the applicable Statement of Work or Estimate). If Client fails to pay DEEP on the due date, DEEP may charge interest on the overdue amount at the rate of 4% above base rate from time to time per annum.

2.2.4         Invoices covering payment in respect of materials purchased by, or services provided to, DEEP or for reimbursement of expenses, shall be accompanied by relevant receipts.

2.2.5         If Works are being carried out on a time and materials basis, DEEP shall maintain complete and accurate records of the time spent and materials used by DEEP in providing the Works in such form as you shall approve. DEEP shall allow you to inspect such records at all reasonable times on request.

 

  1. Legal rights

3.1             All copyright or other intellectual property rights in any material received by DEEP from Client in respect of the development of the Services shall belong to Client. Likewise, all copyright and intellectual property rights relating to the design of the Services shall belong to DEEP until payment of all invoices in full, whereupon DEEP shall transfer to Client:

  • the appropriate rights in graphic designs (including strategic positioning, brand identity and design for print and digital) in the final design chosen by Client for implementation on by way of ownership or license from the individual designer or copyright owner on terms agreed for Client’s use; and
  • a license of such other digital (backend) designs which are selected by the Client but for the avoidance of doubt Deep shall not be required to grant or procure licenses for the use of designs not chosen or which are not commercially exploited by Client within three months of selection in the absence of written agreement to the contrary.

3.2            For the avoidance of doubt Client acknowledge that subcontractors in particular by way of example and not limitation illustrators will reserve rights in and require the return of original artwork.

3.3            If the original brief was for one design and Client selects more than one design an additional fee may be calculated by DEEP in good faith considering the nature of the brief and the work involved and will be payable by Client on the same terms as fees generally.

3.4            Any material or other information provided by Client to DEEP and any material produced by DEEP in the provision of the Services shall be kept confidential by DEEP.  However, the foregoing shall not apply to any material or other information which are public knowledge at the time when they are provided by Client to us, and shall cease to apply if at any future time they become public knowledge through no fault of DEEP.

3.5            Provided that DEEP shall not infringe Client’s rights in any design selected by Client DEEP reserves the exclusive right to use all other designs and software concepts ideas or intellectual property developed during the Services.

3.6            Where work is subcontracted to subcontractors selected by Client it will be Client’s responsibility to secure the appropriate licenses from Client’s nominated subcontractor.

3.7            DEEP will on demand and at the cost of the Client execute such reasonable documents and do such reasonable things as are necessary to give effect to this clause.

3.8            DEEP asserts moral rights on behalf of any author employed in work arising in respect of the Services.

3.9            Client shall indemnify DEEP against any loss, damages, costs, expenses or other claims arising from any use by DEEP for the purpose of providing the Services any material or other information provided by Client to DEEP provided that: (i) DEEP gives notice to Client of any such claim as soon as reasonably practicable on becoming aware of the same; (ii) DEEP gives Client the sole conduct of the defence of any such claim or proceedings and does not at any time admit liability or otherwise settle or compromise such claim or proceedings (except with Client’s express written consent); and (iii) DEEP acts in accordance with Client’s reasonable instructions and gives Client such assistance as Client reasonably requires in respect of the conduct of the claim or proceedings.

3.10          DEEP reserve the right to showcase any of DEEP’S creative work within DEEP’S marketing portfolio and when the Services are in the public domain DEEP shall have rights of reasonable publicity and if so requested Client shall provide DEEP with a reasonable quantity of free samples of the work of DEEP in use.

 

4 Warranties and liabilities

4.1             DEEP warrants to Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with Client’s written instructions and Schedule 2. Where DEEP supplies to Client in connection with the provision of the Services any goods or materials supplied by a third party, DEEP does not give any warranty, guarantee or other term as to the quality, fitness for purpose or otherwise of such goods or material, but shall, where possible, assign to Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to DEEP.

4.2            DEEP warrants that its own design work is original and that it will not knowingly or negligently infringe the rights of any third party but unless expressly agreed to the contrary DEEP shall not be responsible for making an enquiry and save to the extent that DEEP is in Breach of this warranty DEEP shall have no liability to Client for any infringement or alleged infringement of intellectual property or passing off.

4.3            DEEP shall have no liability to Client for any loss, damage, costs, expenses or other claims for compensation arising from any material or instructions supplied by Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or nonarrival, provided that such loss, damage, costs, expenses or other claims for compensation did not arise due to any negligent action or inaction by DEEP.

4.4            Neither party shall be liable to the other for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims, which arise out of or about the provision of the Services or their use by Client.

4.5            The entire liability of DEEP under or in connection with the provision of the Services and its obligations under this Agreement or tort (other in than in respect of death or personal injury) shall not exceed the amount of DEEP’s Fees actually paid by Client in the twelve months preceding the event giving rise to any claim or such sum as may be receivable by DEEP under any insurance policy effected by DEEP.

4.6            DEEP shall not be liable for any indirect or consequential loss or any loss of profit, reputation or opportunity.

4.7            DEEP shall have no liability or have responsibility for:

  1. sub-contractors or third- party providers save for design or digital freelancers utilised by DEEP.
  2. any errors apparent in artwork, copy or proofs that have been signed off by Client or on Client’s behalf.

4.8            The Client accepts reasonable tolerances in relation to the Services including in respect of, inter alia, paper quality and colour.

 

5  Termination and Force Majeure

5.1             Client shall be entitled to terminate this Agreement at any time by giving not less than 30 days’ written notice to DEEP. Client agree to pay on the date of the notice to terminate all outstanding Fees and further where relevant a pro rata share of the Fees calculated up to and including the date of actual termination.

5.2            DEEP shall be entitled to terminate this Agreement if any part of the Contract Price is outstanding (and not justifiably disputed) within 7 days of its due date or if in its reasonable opinion the continued association of DEEP with Client or the project DEEP is engaged in is or might be damaging to the goodwill of DEEP.

5.3            Either party may (without limiting any other remedy) at any time terminate this Agreement by giving written notice to the other if the other commits any breach of this Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so. Either party may terminate this Agreement on notice if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.

5.4            Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.

 

6   Duty of confidentiality and data protection

6.1             Subject to clause 3.4, each party will use its endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that DEEP’s method of working and pricing structures are proprietary and are not generally in the public domain.

6.2            The “Data Protection Requirements” are the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and any successor legislation to the GDPR or the Data Protection Act 1998.

6.3            DEEP shall at all times comply with its obligations under Data Protection Requirements to ensure that personal data it controls or processes remains confidential. Personal data will only be used for a permitted purpose and for a reasonable time, subject to any legal or regulatory requirements, will be deleted or corrected within a reasonable time following a written request to DEEP.

6.4            The parties acknowledge that for the purposes of the Data Protection Requirements, the Client is the Controller and the Deep is the Processor.

6.5            DEEP may use data it controls or processes in connection with the Client to create or update records held by DEEP relating to any matter(s), including without limitation for the purpose of product, market or credit analysis, and statistical compilation. DEEP will not transfer personal data out of the European Economic Area without prior consent. Nor will DEEP disclose personal data to third parties without first obtaining the consent of the Client unless there is a technical, legal or regulatory reason for not doing so.  The Client understands and agrees that DEEP will use servers in the UK, and consents to the transfer of personal data accordingly.

6.6            In relation to any Client DEEP may make enquiries at any time with credit reference agencies, which will keep a record of such enquiry whether or not credit is granted.

6.7            Where credit is granted, DEEP may also disclose details about the Client’s account with DEEP and the Client’s conduct of the account to such agency or to other agencies or to debt collection agencies. This information may be searched by credit grantors and used and given out in assessing applications for future credit facilities and for debt collection, fraud prevention and other purposes.

6.8            In this clause, references to “the Client” shall be deemed to include (but without limitation) officers, employees, contractors and agents in relation to which DEEP receives personal data arising out of or in connection with DEEP’s dealings with the Client and references to “DEEP” shall be deemed to include its Affiliates. The Client may request that DEEP provides a statement of how any personal data has been used within a reasonable time so that compliance may be audited.

6.9            DEEP shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss and destruction of, or damage to, personal data.

6.10          Where, independently of the processing of the Client’s personal data by DEEP, any Product is used by a Client as a controller or processor of data acquired from or concerning any third party, the Client accepts full responsibility for compliance with all applicable legal, regulatory and contractual requirements. DEEP accepts no liability for any improper or unauthorised holding, storage and processing of such data by the Client. In the event that any such use gives rise to any third party claim against DEEP for loss, damage or expense, the Client agrees to indemnify DEEP in respect of all losses and expenses so-incurred. The Client shall assist DEEP in meeting its obligations under English law and regulation, in particular, obligations relating to security of processing, the notification of personal data breaches and data protection impact assessments.

6.11           The Client warrants that where it passes personal data to DEEP as a data controller or processor it shall have entered into agreements with its customers and suppliers which are compliant with its obligations pursuant to the Data Protection Requirements.

 

7   Web hosting

If DEEP is providing a web hosting service the terms in respect of that web hosting business are contained in the web hosting agreement which in the event of conflict with these terms will prevail in relation to all aspects of the web hosting business.

 

8   No responsibility for packaging

The services offered by Deep are in relation to brand and digital strategy/or strategic positioning with particular reference to brand identity and design, build and content creation for print and digital media. DEEP is not responsible for the production of packaging, full responsibility for which remains with the Client unless expressly agreed otherwise in writing as part of the Services.

 

9  General  

9.1             This Agreement and any Schedules hereto constitute the entire agreement between Client and DEEP, supersede any previous agreement or understanding and may not be varied except in writing between Client and DEEP.

9.2            Any notice required or permitted to be given by either party to the other under this Agreement shall be in writing addressed to the other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

9.3            No failure or delay by either Client or DEEP in exercising any rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Client or DEEP of any breach of this Agreement by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

9.4            This Agreement shall be binding upon and inure to the benefit of Client and DEEP and DEEP’s and Client’s respective successors and assigns. Client may not assign this Agreement without the prior written consent of DEEP, which consent will not be unreasonably withheld or delayed. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.

9.5            This Agreement is enforceable by Client and DEEP and by DEEP’s and Client’s respective successors in title and permitted assignees.  No other person shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a term of this Agreement.

9.6.

  • a. If a controversy or dispute arises under or in connection with this Agreement (Controversy) which cannot be resolved by the Deep personnel and Client personnel any of them shall request that a project meeting shall be held at the offices of Deep, or such other place as the Parties shall mutually agree, within three Business Days to seek a collaborative solution to the Controversy.
  • If the attendees at a project meeting called in accordance with the provisions of clause 9.6 (a) fail to reach a consensus then any Party may serve upon the others a written notice (Controversy Notice) describing the controversy and requesting that it is resolved at a meeting attended by the respective managing director(s) of Deep and the Client.
  • Upon delivery of a Controversy Notice each of the Parties shall within 10 Business Days:
  • appoint a representative who has authority to settle the Controversy and who is either an individual with the office stated in clause 9.6 (b) or is at a higher management level than the person with direct responsibility for the administration of this Agreement (Designated Representative); and
  • notify the other party of the name and contact information of its Designated Representative.
  • Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Controversy, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Controversy made by a Party to the others shall be complied with as soon as reasonably practicable.
  • If the Parties are unable to resolve the Controversy within 20 Business Days after the appointment of the Designated Representatives, any Party may proceed with any other available remedy, including but not limited to, termination pursuant to clause 5.
  • Notwithstanding any other provision of this Agreement, any Party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.

9.7            This Agreement is governed by and shall be construed in accordance with English law. DEEP and Client unconditionally submit to the exclusive jurisdiction of the English courts for determining any dispute which may arise out of or in connection with
this Agreement.