The following terms shall apply to all design services provided by DEEP to Client (the ‘Services’). DEEP may, on request, pitch for such work (‘Pitch’) and/or provide such advice in accordance with a brief agreed in writing between DEEP and Client.
In the event of an unsuccessful Pitch, Client will not use any designs, documents, concepts, ideas, images, fonts, typefaces or information provided as part of the Pitch and will return all materials delivered to it as part of the Pitch.
Where the Pitch is accepted by Client (whether or not amended) or DEEP provides Services to Client, these terms shall be the agreement between the Parties and shall incorporate any schedules or statements in the Pitch or otherwise in writing by DEEP of the Estimate and the Scope of Works (together, the ‘Agreement’).
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 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 DEEP shall provide the Services to ensure that any designed product (‘Deliverable’) shall be in accordance with the Scope of
Works or Estimate.
1.3 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, subject to and compliant with all relevant laws, regulations and/or codes of practice including but not limited to the Data Protection Act 2018 and all other UK laws and regulations relating to the use, protection and privacy of personal data (‘Data Protection Requirements’).
1.4 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.
1.5 Client warrants to DEEP that Client owns the copyright and all other rights in material, data or other information supplied to DEEP and Client has the required legal permission to use and reproduce such material, data or other information. Client further warrants that use of such material, data or other information in the Services will not infringe the rights of any third party or any regulations.
1.6 DEEP may make any changes to the Services which are reasonably necessary to comply with any applicable safety, legal or other 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.
1.7 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 the fault of DEEP. Time shall not be of the essence of the contract unless it is expressly agreed in writing between DEEP and Client.
2.1 Client shall pay to DEEP those fees for the Services set out in the Estimate or Scope of Works (the ‘Fees’) in addition to any costs and expenses incurred by DEEP on Client’s behalf in connection with the provision of the Services. The Fees may be amended by DEEP in writing to reflect any change requested by Client or necessary to the Scope of Works or for the delivery of
the Services.
2.2 Invoices shall be paid by Client in full, within 30 days of the date of each invoice.
2.3 If payment is not made by Client on the due date, DEEP shall be entitled, without limiting any other right it has, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% above base rate from time to time of Barclays Bank plc from the due date until the outstanding amount is paid in full.
2.4 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 the agreed timescales and causes delay or Client requests significant changes to the Services that were not included in the Estimate or Scope of Works.
2.5 DEEP reserves the right to employ a third party to carry out any Deliverable and to purchase any necessary materials from third party suppliers. Such third party services and materials will be charged to Client at cost plus an additional ten per cent (10%) administrative fee.
2.6 DEEP reserves the right to invoice Client for expenses incurred in the provision of the Services such as incidental expenses and travel charges.
2.7 Any Estimate 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.
2.8 Title to or licence to use any property or intellectual property forming part of the Services shall pass to Client when and only when the Fees have been paid in full to DEEP. Client will be deemed to be holding any physical property not paid for in safe keeping on DEEP’s behalf so that DEEP will be entitled to recover such property if there is a default by Client.
2.9 Where the Estimate or Scope of Works divides delivery of the Services into stages then each stage shall be undertaken in accordance with this Agreement and DEEP may invoice at each stage when it is complete.
2.10 DEEP may, at its discretion, invoice up to fifty per cent (50%) of the Fees and/or costs and expenses in advance and DEEP reserves the right not to commence work until payment by Client.
2.11 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.
2.12 Where the Services are provided for a fixed price:
(a) the Fees shall be as stated in the Scope of Works or Estimate;
(b) any Fees to be paid to DEEP in instalments shall be paid as set out in the Scope of Works or Estimate; and
(c) any instalment shall be payable together with costs and expenses (plus VAT, where appropriate) and a detailed breakdown of any costs and expenses, accompanied by the relevant receipts shall be provided on request.
2.13 Unless otherwise stated in the Scope of Works or Estimate, the Fees exclude:
2.14 Client shall pay each invoice to a bank account nominated in writing by DEEP. Client acknowledges that payment terms for invoices issued in respect of some costs and expenses may need to be paid in full more promptly than within 30 days of receipt, in order for 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 Scope of Works 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 Barclays Bank plc base rate from time to time per annum.
2.15 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.
2.16 If the Services 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 Services. DEEP shall allow Client to inspect such records at all reasonable times on request.
3.1 All copyright or other intellectual property rights in any materials or other information 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 designs provided in the course of the Services shall belong to DEEP until payment of all invoices in full, whereupon DEEP shall transfer to Client:
3.2 Client acknowledges that subcontractors in particular, by way of example and not limitation, illustrators, may reserve rights in and require the return of original artwork.
3.3 Where Client intends to use a font, typeface or image (collectively, the ‘Software’) contained in the Services, Client shall obtain a licence directly from the proprietor for the use of such Software and shall pay to the proprietor the licence fee. Client shall not use the Software contrary to the relevant licence.
3.4 Client shall consent to the use of the creative work undertaken by DEEP as part of its portfolio of work and to use the names of the Client in connection with showcasing such work.
3.5 If the original brief was for one design and Client selects more than one design, additional Fees may be charged considering the nature of the brief and the work involved.
3.6 Any materials or other information provided by Client to DEEP and any materials produced by DEEP in the provision of the Services shall be kept confidential by DEEP. This shall not apply to materials or other information which are public knowledge at the time they are provided by Client, and shall cease to apply if at any future time they become public knowledge through no fault of DEEP.
3.7 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, documents, software, concepts, images, ideas or intellectual property developed during the Services.
3.8 Where work is subcontracted to a subcontractor selected by Client, it will be Client’s responsibility to secure the appropriate licences from Client’s nominated subcontractor.
3.9 DEEP will on demand and at the cost of Client execute such reasonable documents and do such reasonable things as are necessary to give effect to this clause 3.
3.10 DEEP asserts moral rights on behalf of any author employed in work in respect of the Services.
3.11 DEEP reserves the right to showcase any Deliverable within its marketing portfolio. When such Deliverable is in the public domain, DEEP shall have rights of reasonable publicity and Client shall, on request, provide DEEP with a reasonable quantity of free samples of such Deliverable in use by Client.
4.1 DEEP warrants to Client that the Services will be provided using reasonable care and skill and in accordance with Client’s written instructions, so far as is reasonably practicable.
4.2 Where DEEP supplies goods or materials to Client in connection with the Services, which have been supplied to DEEP by a third party:
4.3 DEEP warrants that any Deliverable is original and that it will not knowingly or negligently infringe the rights of any third party when providing the Services. DEEP shall not be responsible for making any enquiries as to the originality of any Deliverable 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 rights arising out of or in connection with any Deliverable.
4.4 Client shall indemnify DEEP against any loss, damage, costs, expenses or other claims arising out of or in connection with DEEP providing the Services, provided that:
4.5 DEEP shall have no liability to Client for any loss, damage, costs, expenses or other claims arising out of or in connection with any materials or instructions supplied by Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or delayed provided that such loss, damage, costs, expenses or other claims did not arise due to any negligent action or inaction of DEEP.
4.6 Neither party shall be liable to the other for any loss of profit, reputation or opportunity, or any indirect, special or consequential loss, damage, costs, expenses or other claims which arise out of or in connection with the Services or their use by Client.
4.7 DEEP’s liability arising out of or in connection with the Services and its obligations pursuant to this Agreement or any tort (other in than in respect of death or personal injury), shall not exceed the Fees actually paid by Client in the twelve months preceding the event giving rise to such liability, or such other sum as may be claimed by DEEP under any insurance policy that it holds.
4.8 DEEP shall have no liability or responsibility for:
4.9 Client accepts reasonable tolerances in relation to any Deliverable, including in respect of, inter alia, paper, quality and colour.
5.1 Client shall be entitled to terminate this Agreement at any time by giving not less than 30 days’ written notice to DEEP. On the date of such notice, Client agrees to pay all outstanding Fees and where relevant, a pro rata share of the Fees calculated up to and including the date of termination.
5.2 DEEP shall be entitled to terminate this Agreement at any time if:
5.3 Either party may (without limiting any other remedy) terminate this Agreement at any time by giving written notice to the other, if the other is in breach of this Agreement and (if capable of remedy) fails to remedy such breach within 30 days of being given written notice to do so.
5.4 Either party may terminate this Agreement at any time if the other goes into liquidation, or (in the case of an individual) becomes bankrupt or makes a voluntary arrangement with his/her creditors or a receiver or administrator is appointed.
5.5 Neither party shall be in breach of this Agreement, nor liable for any delay in performing, or failing to perform, any of their obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond their reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.
6.1 Subject to clause 3.5, each party shall use its reasonable endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. Client recognises that DEEP’s method of working and pricing structures are proprietary and are not generally in the public domain.
6.2 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.
6.3 The parties acknowledge that for the purposes of the Data Protection Requirements, the Client is the Controller and the Deep is the Processor unless otherwise agreed in writing.
6.4 DEEP and Client shall at all times comply with their respective obligations under Data Protection Requirements.
6.5 DEEP may use data it controls or processes in connection with 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 disclose personal data to third parties without first obtaining the consent of Client unless there is a technical, legal or regulatory reason for not doing so. Client understands and agrees that DEEP will use servers in the USA, and consents to the transfer of personal data accordingly
6.6 DEEP may make enquiries of Client at any time with credit reference agencies and may keep a record of such enquiry and whether or not credit is granted to Client by DEEP. Where credit is granted, DEEP may disclose details to credit reference agencies, debt collection agencies or other agencies regarding Client’s account with DEEP and Client’s conduct of such account.
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.
6.7 In this clause, references to ‘Client’ shall be deemed to include (but without limitation) officers, employees, contractors and agents of Client in relation to which DEEP receives personal data arising out of or in connection with DEEP’s dealings with Client and references to ‘DEEP’ shall be deemed to include its Affiliates.
6.8 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 Client’s personal data by DEEP, any Deliverable is used by Client as a controller or processor of data acquired from or concerning any third party, 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 Client. In the event that any such use gives rise to any third party claim against DEEP for loss, damage or expenses, Client agrees to indemnify DEEP in respect of all losses and expenses so-incurred. 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 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.
If DEEP is providing a web hosting service, the terms in respect of that web hosting service will be contained in the web hosting agreement with the web hosting service provider. In the event such terms conflict with this Agreement, this Agreement shall prevail.
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 Client unless expressly agreed otherwise in writing as part of the Services.
9.1 This Agreement constitutes the entire agreement between Client and DEEP and supersedes any previous agreement or understanding and may not be varied unless agreed 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 and addressed to the other party at its principle 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 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, such consent not to be unreasonably withheld or delayed. If any provision of this Agreement shall be held 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 any term of this Agreement.
9.6 If a controversy or dispute arises under or in connection with this Agreement (‘Controversy’) which cannot be resolved by 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 days to seek a collaborative solution to the Controversy.
9.7 If the attendees at a project meeting called in accordance with the provisions of clause 9.6 fail to reach a consensus then any Party may serve upon the other a written notice (‘Controversy Notice’) describing the Controversy and requesting that it is resolved at a meeting attended by the managing director of DEEP and the respective managing director(s) of Client.
9.8 Upon delivery of a Controversy Notice each of the Parties shall within ten days:
9.9 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 other shall be complied with as soon as
reasonably practicable.
9.10 If the Parties are unable to resolve the Controversy within 20 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.
9.11 Notwithstanding any other provision of this Agreement, any Party may seek any interim or other equitable relief necessary (including an injunction) where damages would be an inadequate
remedy.
9.12 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.