Terms and Conditions
We trust these prices meet with your approval and look forward to producing the work on your behalf.
All prices are exclusive of VAT, which is to be applied at the current rate of 20%. This quotation is valid for 30 days from the date shown.The quoted fees are based on the information we have been given.Please note that delivery charges are not included in this quote unless
Our terms of payment are 14 days from the date of our invoice which will be sent on completion and/or delivery of the work.
It is our policy for new customers to be asked to pay for part or all of the cost of the work before any work is undertaken.
When we receive your purchase order or written confirmation that our fees are acceptable, we will notify you that we have accepted your order.
All orders are accepted subject to our Terms and Conditions of Business.
The final proof of any visuals/artwork must be checked and signed off as approved and accepted by you.
All visuals/artwork remain our copyright and the intellectual property of Design Pit until signed off and paid for in full by the client. Please be sure to read all text and check all details very carefully before committing to sign off design visuals/artwork. Sign off must be in writing by a person authorised to do the sign off, preferably via email. Sign off can also be accepted by the making of a handwritten signature on a printed proof or on a visual by a suitably authorised person.
Once signed off, you have accepted that the design visuals/artwork are correct and as ordered. Design Pit will then make visuals/artwork ready and send them away for print/production. Once they have been sent visuals/artwork CANNOT be changed or amended and will be printed/produced as per the visuals/artwork that have been signed off.
Any errors found after sign off are the responsibility of the Client and Design Pit shall have no liability for errors after this point in time.
Unless you have specifically requested otherwise, digital artwork files will be stored by Design Pit on secure archive drives in the cloud, free of charge, after completion we have finished the work. Most clients will not be able to access the artwork files due to limitations of software on common computer systems so we store the work to avoid accidental deletion or misplacement of it by storing it securely on your behalf.
Future editing of these files can then be done at your request quickly and efficiently. In requesting changes to existing stored files, you will be giving us permission to use the files in order to create a new piece of digital artwork. Ownership of that new work will belong to you (the Client) once paid for in full. Please note that future editing, adjustments or reissues of your stored files will be charged for at the going rate depending on the complexity of changes required and the amount of work involved.
1.1 Defined terms used in this agreement appear at the end of these Terms and Conditions. The following rules of interpretation apply in this agreement.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Any Schedules will form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.4 A reference to a statute or statutory provision is a reference to it in force as at the date of this agreement.
1.5 A reference to writing or written includes email. 1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. THE SERVICES
2.1 In consideration of the payment of the Fees by the Client, Design Pit shall perform the Services for, and provide the Deliverables to, the Client.
2.2 Design Pit will usually provide a written quotation for the Work. A quotation is an invitation to the Client to order the Services and Deliverables. No agreement shall be made unless the Client’s order is first accepted by Design Pit.
2.3 Without limiting any other obligations of Design Pit under this agreement, Design Pit shall perform the Services in a professional manner, in accordance with: (a) best industry practice, using all due skill, care and diligence; (b) the provisions of this agreement and the relevant Quotation; (c) the Client’s brand guidelines and the Client’s marketing policies (if applicable); and (d) reasonable written instructions of the Client from time to time.
2.4 Design Pit shall ensure that, at all times while this agreement is in force, it holds all licences and authorisations necessary to supply the Services and to enable it to comply with its other obligations under this agreement.
2.5 Design Pit shall co-operate with any third parties as the Client may from time to time nominate for the purposes of performing any related services, and shall work with the Client’s nominated suppliers efficiently and in good faith.
2.6 Design Pit shall use its best endeavours to carry out the Services within any timeline specified in the Quotation but time shall not be of the essence in this agreement unless explicitly agreed and stated in the Quotation. In such case the provisions of clause 17 (Force Majeure) shall still apply.
3. CLIENT OBLIGATIONS
3.1 The Client shall co-operate with Design Pit and shall provide to Design Pit, at Design Pit’s request, such information concerning the Client, the Client’s requirements in respect of the Services and any advertising campaign to which the Services relate as is reasonably necessary to enable Design Pit to perform the Services.
3.2 Unless a specific time frame for the Client’s response is specified, the Client shall respond reasonably promptly to any request by Design Pit for information or approval.
3.3 Only written approval by a person authorised on behalf of the Client (as identified in the Quotation or subsequently notified to Design Pit) shall be written approval by the Client for the purposes of this agreement. Written approval may be given by way of the manuscript signature of such an authorised person or by an email from the personal account of such an authorised person.
4. FEES AND EXPENSES
4.1 In consideration for the provision of the Services in accordance with this agreement, the Client shall pay the Fees to Design Pit when due.
4.2 The Fees are inclusive of all costs of: (a) production work to produce the Deliverables, including any artwork, design, graphics, editing and printing; (b) all materials used by or on behalf of Design Pit to produce the Deliverables and/or provide the Services; and (c) all overheads or administration costs of Design Pit, including all costs of telephone calls, printing and stationery, delivery charges and postage costs, except to the extent that the parties agree in advance in any Quotation that those costs shall be chargeable by Design Pit to the Client as Third-Party Costs.
4.3 The Client shall reimburse Design Pit for all Third-Party Costs which have been approved by the Client in advance.
4.4 The Client shall reimburse Design Pit for reasonable Expenses actually incurred by Design Pit.
4.5 Design Pit may invoice the Client for the Fees at such times and/or in such instalments as are set out in the Quotation.
4.6 Design Pit shall provide the Client with supporting documentation for Expenses (including receipts) other than for mileage.
4.7 Unless otherwise agreed and as set out in the Quotation, Design Pit shall deal with all third parties from whom it obtains any products, materials and/or services for its own account, and not as agent for the Client.
5.1 Except as otherwise agreed between the parties, the Client shall pay all invoices submitted by Design Pit within 14 days of receipt of that invoice by the Client, provided always that the invoice sets out Design Pit’s VAT invoice details.
5.2 All sums payable under this agreement: (a) are exclusive of any VAT which shall be payable by the Client to Design Pit in addition; and (b) shall be paid to the credit of Design Pit’s bank account, details of which shall be notified to the Client as and when necessary.
5.3 If the Client fails to make any payment due to Design Pit under this agreement by the due date for payment, then, without limiting Design Pit’s remedies under this agreement, the Client shall pay statutory interest under the Late Payment of Commercial Debts Act 1998 on the overdue amount. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
6. APPROVALS AND AUTHORITY
6.1 Following the making of an agreement for the provision of the Services and/or Deliverables, Design Pit shall submit to the Client materials including copy, layouts, artwork (including concept artwork) and text for written approval. The Client may request Design Pit to submit to the Client several alternative ideas which will then be reviewed by the Client. The Client will provide written approval to Design Pit within 7 Business Days of receipt.
6.2 In relation to any Deliverable, Design Pit may proceed to produce the Deliverable when it has obtained the Client’s written approval of: (a) the relevant copy, layouts, artwork (including concept artwork) and text; (b) Third-Party Costs if any; and (c) the terms of acquisition of any Third-Party Material to be included in the Deliverable.
7. COMPLIANCE OF DELIVERABLES WITH THE LAW
7.1 Design Pit shall ensure that all Deliverables (excluding the Client’s Property) and their publication shall: (a) comply with all applicable laws and any other applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force, including all such guidelines and codes issued by statutory, regulatory and industry bodies; (b) not infringe the IP Rights or proprietary rights of any third party; and (c) not be defamatory, libellous, obscene or otherwise offensive.
7.2 Design Pit shall be liable to the Client for all liabilities, costs, expenses, damages and losses (but not any indirect or consequential losses, loss of profit, loss of reputation) suffered or incurred by the Client (“Losses”) arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Client by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach by Design Pit of clause 7.1. 7.3 The indemnity in clause 7.2 shall not extend to any Losses if the same are caused by:
(a) any breach of this agreement by the Client; or (b) the negligence or fraud of the Client; or (c) the provision by the Client to Design Pit of any Client Property that infringes or is claimed by a third party to infringe the IP Rights or proprietary rights of any third party. 7.4 If either Design Pit or the Client becomes aware that there is risk that any Deliverable is not in compliance with clause 7.1, each shall promptly notify the other, and, without prejudice to any other right or remedy of the Client, Design Pit shall make any modifications which may be necessary to remedy that defect in the Deliverables. Any modifications shall be at Design Pit’s cost unless the problem was due to the Client’s act or omission (and/or to any material error in the Client’s Property and/or any information provided by the Client to Design Pit).
7.5 The Client shall ensure that Design Pit’s possession and use of the Client’s Property in the exercise of Design Pit’s obligations under this agreement shall not infringe the IP Rights or proprietary rights of any third party.
8. OWNERSHIP OF IP RIGHTS
8.1 It is the intention of the parties that, subject to satisfactory payment of all sums due:
(a) the Client shall own all Deliverables produced by Design Pit;
(b) the Client shall own all Third-Party Materials comprised in Deliverables, where an assignment of such materials is available on commercially reasonable terms which have been approved by the Client in accordance with clause 8.6; and
(c) where no assignment of Third-Party Materials is available on commercially reasonable terms the Client shall receive a direct licence of such materials for the Client’s Minimum Commercial Purposes or such wider purposes as Design Pit and the Client may agree, in accordance with clause 8.6. 8.2 Subject to satisfactory payment of all sums due Design Pit hereby irrevocably, unconditionally and absolutely assigns to the Client, with full title guarantee, and without restriction, all right, title and interest in and to all existing and future IP Rights (including future copyright and design right) subsisting in or relating to all Deliverables whether created, developed or produced before, on or after the making of this agreement, in all countries and with the right to sue for damages and other relief for past infringement of any of those IP Rights.
8.3 To the extent that clause 8.2 is not effective to assign legal title to the IP Rights in or to the Deliverables, then Design Pit shall assign to the Client such IP Rights as and when requested by the Client by executing any assignment documents reasonably requested by the Client. Until such time as those IP Rights are assigned to the Client, Design Pit shall hold all such IP Rights on trust for the Client and the Client shall have an exclusive worldwide, royalty-free licence under those IP Rights and to use the Deliverables for any purpose.
8.4 Design Pit warrants that it has obtained or shall obtain from all Subcontractors an unconditional assignment without restriction of the legal and beneficial ownership of all existing and future IP Rights subsisting in or relating to any Deliverables created or developed by such Subcontractors, in all countries, and that the assignment under clause 8.2 includes the assignment of all of those IP Rights.
8.5 Design Pit shall not incorporate and/or use Third-Party Materials in any Deliverable unless Design Pit has obtained the prior written consent of the Client to do so. Design Pit shall give the Client reasonable prior notice of its intention to include any such Third-Party Materials and at the same time shall notify the Client in writing: (a) whether an assignment to the Client of the relevant Third-Party Materials can be obtained and the cost of obtaining it; and (b) if no assignment of the relevant Third-Party Materials can be obtained or cannot be obtained for a reasonable cost, the cost of obtaining a licence of such materials. Design Pit shall not propose the inclusion of any Third-Party Materials in any Deliverable unless Design Pit is able to negotiate a licence of such materials for the Client’s Minimum Commercial Purposes.
8.6 Following receipt of Design Pit’s notice under clause 8.5, the Client shall notify Design Pit in writing of whether inclusion of the relevant ThirdParty Material is approved, and whether Design Pit is required to obtain an assignment (if available) or a licence, and if so, the extent of such licence required and the approved cost thereof.
8.7 Design Pit shall ensure that all licences of Third-Party Materials are granted directly to the Client or such of its Affiliates as the Client shall notify to Design Pit.
8.8 Design Pit shall, at any time on request, provide to the Client such information on the rights acquired in respect of any Third-Party Material and warrants that any usage rights information provided to the Client shall be accurate and complete.
8.9 Design Pit shall procure from all owners of any other IP Rights in materials incorporated into the Deliverables and all other third parties used by Design Pit in connection with Deliverables, all necessary consents, releases, and approvals.
8.10 The Client grants Design Pit a non-exclusive, non-transferable, royalty-free licence to use the Client’s Property (excluding the Trade Marks) and the Deliverables solely to the extent necessary to enable Design Pit to provide the Services and for the purposes of providing services of a like nature in the future.
9. OWNERSHIP AND RISK
9.1 The Client’s Property shall, at all times be and remain, as between the Client and Design Pit, the exclusive property of the Client. Design Pit shall not dispose of, or use, any of the Client’s Property other than in accordance with the provisions of this agreement and/or the Client’s written instructions.
9.2 Title to all Deliverables prepared for the Client by Design Pit shall pass to the Client on the date of payment (or other satisfaction) of all sums owing by the Client to Design Pit under this or any other agreement. Any Deliverables owned by the Client but in the possession of Design Pit shall be held by Design Pit on trust for the Client and in accordance with the provisions for storage outlined in the Quotation.
9.3 Risk in the Deliverables shall pass to the Client on delivery.
10. TRADE MARK LICENCE
10.1 The Client grants Design Pit a non-exclusive, non-transferable, royalty-free licence for the purposes of carrying out its obligations under this agreement to use, and permit its Subcontractors to use, any Trade Marks in the creation of the Deliverables.
10.2 Design Pit shall only use the Trade Marks in accordance with the Client’s Brand Guidelines if any. No Deliverables incorporating the Trade Marks shall be supplied to any person other than the Client or disposed of in any way other than as specified by the Client.
10.3 Design Pit acknowledges that it will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall vest automatically in the Client and Design Pit shall not make any use of them except in accordance with the terms of this agreement.
11.1 Design Pit shall notify the Client promptly on becoming aware of:
(a) any unauthorised use by any third party of any IP Rights of the Client (including the Trade Marks and/or any IP Rights in the Deliverables); or
(b) any actual or threatened claim by any third party in connection with the Services or Deliverables (or the use of the latter by the Client or any of its licensees), in each case giving full details of that unauthorised use and/or claim.
11.2 The Client shall have sole and complete control of any litigation or other proceedings arising out of any unauthorised use of its IP Rights or any third-party claim against it in respect of the Services or the Deliverables. Design Pit shall, and shall procure that its Subcontractors shall, provide the Client with all assistance as may be reasonably required by the Client to prosecute, defend or settle any such claim. Design Pit shall not take any action which might be reasonably anticipated to compromise any such claim. Design Pit shall not have any right to initiate any proceedings without the Client’s written consent.
12.1 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a nonconfidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or (d) the parties agree in writing is not confidential or may be disclosed.
12.2 Each party shall keep the other party’s Confidential Information confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this agreement (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.
12.3 A party may disclose the other party’s Confidential Information to those of its employees or sub-contractors who need to know such Confidential Information for the Permitted Purpose, provided that: (a) it informs such persons of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for such persons’ compliance with the confidentiality obligations set out in this clause.
13. DATA PROTECTION
13.1 If Design Pit acquires from the Client in the course of the provision of the Services, any personal data relating to any of the Personnel of the Client and/or its Affiliates or any other individual (Client Personal Data), Design Pit shall:
(a) only process the Client Personal Data in accordance with the instructions of the Client and at all times in accordance with the Data Protection Act 1998 (or any similar or equivalent legislation applicable in the Territory);
(b) not otherwise modify, amend or alter the contents of the Client Personal Data or disclose or permit the disclosure of any of the Client Personal Data to any third party unless specifically authorised in writing by the Client;
(c) take appropriate technical and organisational measures against unauthorised or unlawful processing of the Client Personal Data and against accidental loss or destruction of, or damage to, the Client Personal Data; and (d) provide reasonable evidence of Design Pit’s compliance with its obligations under this clause 13.1 to the Client on reasonable notice and request.
13.2 At the Client’s request, Design Pit shall provide the Client with a copy of all Client Personal Data held by it in the format and on the media reasonably specified by the Client.
13.3 In this clause 13, personal data, data subject and process shall have the meanings given to them in the Data Protection Act 1988.
14. LIMITATION OF LIABILITY
14.1 Nothing in this agreement shall limit or exclude Design Pit’s or the Client’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees or subcontractors;
(b) fraud or fraudulent misrepresentation.
14.2 Subject to Clause 14.1, neither party shall have any liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss howsoever caused as may arise under or in connection with this agreement.
14.3 Subject to Clause 14.1 and Clause 14.2, Design Pit’s total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the aggregate of the Fees, Third-Party Costs and Expenses paid by the Client under this Agreement.
15.1 Without affecting any other right or remedy available to it, Design Pit may terminate this agreement with immediate effect by giving written notice to the Client if: (a) after receiving a written reminder for payment, within the following  days the Client has failed to pay any amounts falling due under the agreement;
(b) the Client commits a material breach of any term of this agreement which is irremediable or if such breach is remediable fails to remedy that breach within a period of  days after being notified in writing to do so;
(c) the Client suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Client (being a company); (g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Client;
(h) the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
15.2 Without affecting any other right or remedy available to it, the Client may terminate this agreement at any time, by giving written notice of termination to Design Pit, that termination taking effect on the date of receipt of notice by Design Pit or any later date as may be specified in the notice, if:
(a) Design Pit commits a material breach of this agreement which (if such breach is remediable) it fails to remedy within a period of  days after being notified in writing to do so; (b) Design Pit challenges the Client’s right or title in or to, or the validity of any registrations of, the Trade Marks or any other IP Rights of the Client.
16. CONSEQUENCES OF TERMINATION
16.1 On expiry or termination of this agreement:
(a) Design Pit shall immediately cease all further performance of the Services;
(b) Design Pit shall immediately cease all further use of the Trade Marks, the Deliverables, the Client’s Property and any other IP Rights of the Client or it’s Affiliates;
(c) Design Pit shall be entitled to invoice the Client for all outstanding properly incurred Fees, Third-Party Costs and Expenses, which shall be payable by the Client;
(d) the Client shall pay to Design Pit any sums payable by Design Pit to any third party under any legally binding commitment relating to the provision of the Services that was entered into by Design Pit, before the date of expiry or termination, with the Client’s consent, to the extent that Design Pit is unable to cancel or otherwise mitigate that commitment (except to the extent that those sums are already covered by any Fees, Third-Party Costs or Expenses paid or payable by the Client under this agreement).
(e) each party shall return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(f) each party shall erase all the other party’s Confidential Information from its computer systems (to the extent possible);
(g) Design Pit shall deliver to the Client (or any third party specified by the Client), promptly, in accordance with the Client’s instructions all of the Client’s Property in its possession or control at the date of termination.
16.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement.
17. FORCE MAJEURE 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 time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed OR 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 2 months, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.
18. WAIVER No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy
19. ENTIRE AGREEMENT
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
20. VARIATION No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21. THIRD-PARTY RIGHTS
21.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
21.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
22. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
24. DEFINED TERMS
Client’s Property: any and all materials, documents, records, research, photography, logos, designs, software or other property (including all IP rights therein) belonging to the Client which are provided to Design Pit by or on behalf of the Client and/or otherwise come into the possession, custody or control of Design Pit in connection with the provision of the Services. Confidential Information:
(a) all information (however recorded or preserved) disclosed by a party to the other party before, on or after the date of this agreement, relating to: (i) the business, affairs, clients, suppliers, plans, intentions or market opportunities of the disclosing party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
(b) all documents or physical materials created by or on behalf of the receiving party that are based upon, derived from, or include any information disclosed by, the disclosing party. It does not include any information that:
(c) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party in breach of clause );
(d) was known to the receiving party, or available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(e) was, is or becomes available to the receiving party on a nonconfidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
(f) the parties agree in writing is not confidential or may be disclosed; or
(g) is developed by or for the receiving party independently of the information disclosed by the disclosing party. Deliverable(s): all tangible items including copy, layouts, artwork, presentations, drawings, documents, cards, charts, graphics, and/ or other materials created or produced by or on behalf of Design Pit for the Client in the course of providing the Services, on any media (whether any media exist or are subsequently developed). Expenses: out of pocket expenses (if any).
Fees: the fees for the Services as set out in the Quotation. IP Rights: copyright and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Services: the services to be provided by Design Pit to the Client as set out in the Quotation.
Subcontractor: any third party engaged by Design Pit to provide any part of the Services or any of the Deliverables. Third-Party Costs: costs payable by Design Pit to third parties relating to the provision of the Services which are not included in the Fees and are not Expenses. Third-Party Material: any work or materials authored, created or performed by a third party and either commissioned for, or used in relation to, the Services, including library images. Trade Marks: any registered or unregistered trademarks, and all unregistered logos belonging to the Client from time to time. VAT: value added tax chargeable under the Value Added Tax Act 1994.
Design365 – Access, Accelerator, Activator Packages: Terms and Conditions of Business
(1) These Terms shall apply to all contracts for the Access, Accelerator and Activator Packages. Each Package is designed to be an efficient way for the Client to procure the Services of Design Pit on a continuing basis by spreading the cost of our work over a longer period.
(2) The Terms are incorporated into and form an integral part of each Client agreement for one of the Packages.
(3) Definitions used in these Terms and rules for interpretation may be found at the end of these Terms.
(4) Design Pit shall use its best endeavours to carry out the Services within any timeline agreed but time shall not be of the essence in this agreement.
2. CONTRACT FOR SERVICES
(1) A contract (“Agreement”) will only have been made when the Client has made an offer to take one of the Packages and when Design Pit has accepted that offer in writing. On delivery of Design Pit’s acceptance an Agreement for the provision of a Package of Services will have been made.
(2) Each Package consists of a menu of Services to be provided. Each one will have a fixed Cost payable monthly.
(3) Following the making of an Agreement, Design Pit shall start to deliver the Services from the first day of the next following calendar month.
(4) An Agreement for a Package shall continue for 12 months from the date of the Agreement (“the Initial Period”) and shall then renew automatically for consecutive periods of 3 months unless cancelled in accordance with the notice provisions in clause 4. Each 3 month period that follows the Initial Period is referred to as a “Rolling Contract”.
(5) Without limiting any other obligations of Design Pit under this Agreement, Design Pit shall perform the Services in a professional manner, in accordance with:
(a) best industry practice, using all due skill, care and diligence;
(b) the provisions of this Agreement and the relevant Quotation;
(c) the Client’s brand guidelines and the Client’s marketing policies (if applicable); and
(d) reasonable written instructions of the Client from time to time.
(6) Design Pit shall ensure that, at all times while this Agreement is in force, it holds all licences and authorisations necessary to supply the Services and to enable it to comply with its other obligations under this Agreement.
(7) Design Pit shall co-operate with any third parties as the Client may from time to time nominate for the purposes of performing any related services, and shall work with the Client’s nominated suppliers efficiently and in good faith.
(8) It may be necessary for the Client to provide information, data, facilities or members of staff, in order that Design Pit may deliver the Services on an agreed date. If the information, data, facilities or members of staff are not provided, or incomplete or incorrect information or data is provided, Design Pit may take longer to complete Services as a result. If because of such failing by the Client the Studio Hours for that month are used, any additional Studio Hours required may be charged as additional Fees at the current Studio Hour rate.
(9) It is possible that there may be delays or cancellations in providing certain Services under a Package which is due to a delay or failure by the Client to provide information. In such a case Design Pit will not be liable to the Client for any failure to perform, or delay in performance of, any of its obligations under these Terms.
3. THE PACKAGES
(1) As Design Pit primarily provides creative services, the Services to be provided under each Package are described by reference to the hours of time to be provided by Design Pit under each Package. These hours are referred to as “Studio Hours”. Packages shall run from the first day of a calendar month unless explicitly agreed otherwise.
(2) The Services to be provided under each Package are as set out in the Schedule which is attached at the end of these Terms.
(3) Subject to paragraph (4) of this clause, the Client may choose to alter its Package during the course of the Agreement (“moving Packages”). Please note that moving Packages will have effect to restart the Initial Period for a further period of 12 months and the provisions of clause 2 paragraph (4) will apply as to the term of the Agreement, notice and renewal. For avoidance of doubt any liability of a party incurred before moving Packages will continue to subsist.
(4) A Client may elect to move from the Access Package to either of an Accelerator or an Activator Package in the Initial Period at any time after the expiry of three calendar months. A Client may elect to move from Activator to Accelerator or Access or from Accelerator to Access at any time in the Initial Period following the expiry of six calendar months.
(5) Where Business Cards are offered as part of the provision these shall be provided within the first two calendar months of the Initial Period, or (as the case may be) within the first two months of the first Rolling Contract. The obligation to provide Business Cards shall then continue as an annual obligation of Design Pit only for so long as the Agreement has continued without termination or suspension.
(6) Business Cards provided free under the Package shall be prepared and provided bearing the details of only one individual who is an employee or officer of the Client. Business cards for any other employees, officers or contractors can be provided at a cost to be agreed.
(7) The Services to be provided and the time when they are to be provided may not be settled between the parties on the making of the Agreement. Therefore the parties may agree the Services and the time when they are to be provided during the continuance of this Agreement.
(8) By agreement with Design Pit, the Client may opt to take further Services over and above those available to it under the selected Package (“Additional Services”). Such Additional Services shall be charged separately at the rates or on the basis appertaining for those Services at the time the Additional Services are agreed to be provided.
(9) Design Pit reserves the right to alter the menu of Services from time to time but no alterations shall affect a current Agreement.
4. STUDIO HOURS AND FLEXI-HOURS
(1) Subject to the provisions of this clause regarding Flexi-Hours, Studio Hours will be provided in the numbers shown in the Schedule under each Package per month of the Agreement.
(2) Studio Hours which are not used in any period under the Agreement may not be carried forward. Further if Studio Hours are unused during any period of the Agreement because the Client has failed to provide any clear and explicit instructions for the use of those Studio Hours, those Studio Hours shall be void and no entitlement to re-imbursement for those Hours shall arise.
(3) A Studio Hour will have been delivered (“used”) once Design Pit has provided Services under the Package for a total period of one hour. Design Pit may provide a Studio Hour over periods of less than one hour and a Studio Hour will be used once the aggregate of those lesser periods is one hour.
(4) A Flexi-Hour is a Studio Hour that may, on the request of the Client, be used in an adjacent month. A Flexi-Hour may brought forward for use in the calendar month immediately preceding the month in which it should otherwise have been used or it may be pushed back to be used in the month immediately following the month in which it should otherwise have been used.
(5) Any request by the Client:
(a) to bring forward one or more Flexi-Hours must be made no later than 7 days before the end of the month prior to the month in which the Flexi-Hours fall;
(b) to push back one or more unused Flexi-Hours must be made no later than 7 days before the end of the month in which that Flexi-Hour or those Flexi-Hours fall.
(6) The Flexi-Hours provided each month under a Package may only be moved (whether forward or pushed back) once. If not used thereafter they shall be void and no entitlement to re-imbursement for those Hours shall arise.
(7) Design Pit will provide the agreed number of Studio Hours as provided for under the Package Specification subject to events which are outside of the control of Design Pit.
(8) For the purposes of paragraph (7) above, events outside of the control of Design Pit means any act or event beyond the reasonable control of Design Pit, including without limitation an act or omission of the Client, any strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.
(9) If an event outside of the control of Design Pit takes place that affects the performance of Services under these Terms:
(a) Design Pit will contact the Client as soon as reasonably possible; and
(b) Design Pit’s obligations under these Terms will be suspended and the time for performance of the obligations will be extended for the duration of the event and Design Pit will restart the Services as soon as reasonably possible after the event or on a date and time agreed between the parties.
5. CANCELLING YOUR PACKAGE
(1) If a Client purports to cancel the Package otherwise than in accordance with this clause, a notice given shall not operate to terminate the Agreement.
(2) The Client may terminate an Agreement by providing a notice in writing (by post or by email) to Design Pit:
(a) during the period commencing no earlier than 3 months before the expiry of the Initial Period but no later than 2 months before the end of the Initial Period; or
(b) from the date of expiry of the Initial Period, by giving not less than three calendar months’ notice.
(3) Design Pit may, at its discretion, by notice (by post or by email) accept any purported cancellation by the Client. On delivery of Design Pit’s acceptance notice the Agreement shall terminate. Any such acceptance shall not prejudice any of Design Pit’s rights which have otherwise accrued under the Agreement. For the purposes of this paragraph, a cancellation by the Client of any instruction to its bank to make a payment to Design Pit may be construed as an act purporting to cancel the Agreement.
(4) Where the Agreement is terminated by Design Pit under the provisions of paragraph (3) Design Pit shall become immediately entitled to payment in full of the costs that would otherwise be payable:
(a) for the balance of the Initial Period;
(b) for the balance of a Rolling Contract.
6. PAYMENT TERMS
(1) The cost of each Package shall be the current price as advertised by Design Pit on the date that the Agreement is made. An increase in the cost of a Package can only be implemented with effect from the beginning of the next following anniversary of the making of the Agreement and the Client shall be given notice if such increase is to come into effect.
(2) The Client agrees and understands that payment is due monthly in advance and that Design Pit allows for the cost of the Services provided to be spread across a 12 month period.
(3) The Client agrees to be bound by any payment terms set out in the Package Information or, in the absence of any such agreed payment terms, all amounts arising under this Agreement shall be payable by direct debit in advance of each months’ Services. Time for payment shall be of the essence. The Client shall pay the cost in full without any set-off or counterclaim whatever.
(4) If the Client fails to make any payment when due under a Agreement, then, without incurring any liability to the Client, Design Pit may suspend delivery of any Services, and / or withhold delivery to the Client of any Deliverables. Any act of Design Pit under this paragraph may continue for so long as the Client remains in default or until the Agreement is terminated.
(5) All Fees are exclusive of VAT which shall be due at the rate ruling on the date of any VAT invoice raised.
(6) Design Pit shall reserve the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 and to recover any amounts of statutory compensation available under that Act on any payment not received by the due date until such sum is received, both before and after judgement.
(7) Where expenses are necessarily occurred in delivering the Package they shall be charged at cost except for mileage which shall be charged at £0.45p per mile travelled. Expenses shall include all disbursements made by Design Pit on behalf of the Client. Invoices for Expenses will normally be raised monthly but Design Pit may, at its sole discretion, choose to raise invoices for Expenses more frequently.
(8) The Client authorises Design Pit to incur, without prior notice to the Client, ‘reasonable’ travel Expenses in performing the Client’s instructions including travel to and from the Client or travel to and from third parties on behalf of the Client.
(9) Design Pit shall retain receipts for Expenses (other than for mileage) incurred which shall be available for inspection by the Client upon reasonable notice.
(10) Additional Services, once delivered, will usually be invoiced for payment at the same time as the next following monthly Package payment becomes due.
(11) Should any amount owed by the Client under the Package be outstanding for a period exceeding 14 days from the date on which Design Pit notifies the Client that payment is overdue, then in default of payment or satisfactory settlement, Design Pit may terminate the Agreement by written notice (by post or by email) to the Client.
7. SIGN OFF
(1) The final proof of any Creation must be checked and signed off as approved and accepted by the Client.
(2) All Creations remain the property of Design Pit until signed off and paid for in full by the Client. The Client should read all text and check all details very carefully before committing to sign off a Creation. Sign off must be in writing by a person authorised to do the sign off, preferably via email. Sign off can also be accepted by the making of a handwritten signature on a printed proof or on a visual by a suitably authorised person.
(3) Once signed off, the Client has accepted that the Creation is correct and as ordered. Design Pit will then make the Creation ready and send it away for print or production as appropriate. Once the Creation has been sent for printing or other tangible production process it CANNOT be changed or amended and will be printed or produced in the form signed off.
(4) Any errors found after sign off are the responsibility of the Client and Design Pit shall have no liability for errors after this point in time.
(1) The Client must inspect any Deliverables on delivery and within 3 days of delivery notify Design Pit of any claimed failure to comply with the requirements of the Client. If the Client fails to notify Design Pit in accordance with these provisions the Deliverables shall be conclusively presumed to be in accordance with the Client’s instructions and the Client shall be deemed to have accepted them.
(2) If the Deliverables are not in accordance with the Agreement for any reason the Client’s sole remedy shall be limited to the making good of any defect by Design Pit, or if Design Pit may elect, by the refunding of a proportionate part of any Package charge.
(3) The Client shall make all arrangements necessary to receive the Deliverables and / or take delivery of them whenever they are tendered for delivery. If the Client requires Design Pit to make physical delivery of any Deliverables which are tangible goods Design Pit shall be entitled to charge for the delivery costs.
(4) Deliverables shall be at the Client’s risk from delivery.
(5) Notwithstanding that Design Pit may have delayed or failed to deliver the Services (or any of them) promptly the Client shall be bound to accept delivery of Deliverables and be bound to pay for the Services in full provided that delivery shall be tendered at any time within 5 days of the notified date for delivery.
8. OWNERSHIP OF IP
(1) Design Pit warrants that all personnel, whether full-time employees or not, will be employed on terms that protect the Client’s rights in its Intellectual Property.
(2) Where Intellectual Property ownership is intended to pass to the Client, subject to satisfactory payment of all sums due, Design Pit hereby irrevocably, unconditionally and absolutely assigns to the Client, with full title guarantee, and without restriction, all rights, titles and interests in and to all existing and future IP Rights (including future copyright and design right) subsisting in or relating to all Deliverables (“IP Rights”) whether created, developed or produced before, on or after the making of this Agreement, in all countries and with the right to sue for damages and other relief for past infringement of any of those IP Rights.
(3) To the extent that paragraph (2) is not effective to assign legal title to the IP Rights in or to the Deliverables, then Design Pit shall assign to the Client such IP Rights as and when requested by the Client by executing any assignment documents reasonably requested by the Client. Until such time as those IP Rights are assigned to the Client, Design Pit shall hold all such IP Rights on trust for the Client and the Client shall have an exclusive worldwide, royalty-free licence under those IP Rights and to use the Deliverables for any purpose.
(4) Where in the course of delivering the Services Design Pit creates any database, spreadsheet, analysis, report, evaluation, drawing, chart, or graph in any format (including as a computer file) using any Intellectual Property of the Client, the Client grants Design Pit a non-exclusive, non-transferable, royalty-free licence to use the Client’s Intellectual Property solely to the extent necessary to enable Design Pit to provide the Services and for the purposes of providing Services of a like nature to the Client in the future. Design Pit grants to the Client a non-exclusive, non-transferable, royalty-free licence to use its Intellectual Property solely to the extent necessary to enable the Client to obtain the benefit of the Services delivered but this licence shall not be construed so as to permit the Client to commercially exploit any of Design Pit’s Intellectual Property.
(1) Unless the Client has specifically requested otherwise, digital artwork files will be stored by Design Pit on secure archive drives in the cloud, free of charge, after the work has been finished. Clients will not be able to access the stored files due to limitations of software on common computer systems so we store the work to avoid accidental deletion or misplacement of it by storing it securely on your behalf.
(2) Future editing of these files can be done at the Client’s request quickly and efficiently. In requesting changes to existing stored files, the Client will be giving Design Pit permission to use those files in order to make a new piece of digital artwork. Ownership of that new work will belong to the Client once paid for in full. Please note that future editing, adjustments or reissues of your stored files will be charged for at the going rate depending on the complexity of changes required and the amount of work involved.
10. RETENTION OF TITLE
(1) Rights over any Intellectual Property arising in the course of delivery of the Services (other than Third Party Rights and Design Pit’s Proprietary Rights) and title to any Deliverables shall pass on the last day of the month in which the Intellectual Property was created or the Deliverables were delivered unless the Client is in breach of any term of the Agreement. In the event that the Client has breached any term of the Agreement no rights or title shall pass until the breach has been remedied or, in the case of any default of payment, payment in full or other satisfaction shall have been made.
(2) Until the rights and / or title passes under paragraph (1) to the Client, from delivery the Client shall hold the Deliverables and each of them on a fiduciary basis as bailee for Design Pit.
(3) Notwithstanding that the Deliverables or Intellectual Property described in paragraph (1) (or any of them) remain the property of Design Pit, the Client may use the Deliverables in the ordinary course of its business.
(4) Design Pit shall be entitled to recover any Fees (plus VAT) that become due under any Agreement with the Client notwithstanding that the rights in any Intellectual Property or title to any Deliverables have not passed to the Client.
(5) During any period in which the Client is in breach of any obligations to pay any monies due under an Agreement, the Client shall upon request deliver up the Deliverables to Design Pit. If the Client fails to do so Design Pit may enter upon any premises owned, occupied or controlled by the Client where the Deliverables are situated and take possession of them.
(6) If at any time Design Pit shall require in writing payment of any sums due and owing to it following any breach of Agreement by the Client, the Client shall have no further rights to use the Deliverables and any licence of Intellectual Property granted to the Client shall terminate forthwith and without notice.
(7) The Client shall not pledge or in any way charge by way of security for any indebtedness any of the Deliverables or the Intellectual Property arising in connection with Services which remain the property of Design Pit. Without prejudice to the other rights of Design Pit, if the Client does so then all monies owing by the Client to it at that time shall forthwith become due and payable immediately.
(1) Design Pit undertakes to the Client that it shall:
(a) keep the Confidential Information secret and confidential;
(b) not use or exploit the Confidential Information in any way, except for or in connection with, the delivery of the Services; and
(c) only make disclosure of the Confidential Information in accordance with paragraph (2). Any other disclosure can only be made with the Client’s prior written consent.
(2) Each party may disclose the Confidential Information to any of its officers, employees, advisers, and contractors that need to know the relevant Confidential Information in order to deliver the Services, provided that it procures that each such person to whom the Confidential Information is disclosed to complies with the obligations set out in this clause 13.
12. TERMS REGARDING CANCELLATION
(1) The Client may terminate a Package in accordance with the provisions set out in clause 4 above.
(2) A notice purporting to terminate an Agreement shall have no effect until any invoice which remains to be paid by the Client under the Agreement is paid or satisfied in full.
(3) Notwithstanding the foregoing provisions of this clause 12, the Client shall have the right to terminate an Agreement if Design Pit are unable to provide suitable personnel to provide the Services within a period of 30 (thirty) days of any agreed timelines due to ill health of Design Pit personnel. In such circumstances the Client shall not be liable for any payment of any Fees but Design Pit shall be entitled to retain any payments already made in lieu of any Services carried out prior to the date of termination of the Agreement and to recover all reasonable Expenses incurred.
(4) In the event of termination of the Agreement for any reason, where the Client remains obliged to pay Expenses, then Expenses shall be deemed to include those sums that Design Pit has irrevocably contracted to pay to a third party for the provision of any goods or services that had been required under the Agreement together with any costs, damages, interest, fines, or penalties properly demanded of Design Pit by the third party.
13. CONSEQUENCES OF TERMINATION
(1) Either party shall be entitled to terminate this Agreement at any time without notice if:
(a) the other party ceases or threatens to cease to carry on business; or
(b) the other party is unable to pay its debts or enters into compulsory or voluntary liquidation (other than for the purpose of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation shall be bound by and assume Design Pit’s obligations hereunder);
(c) the other party compounds with or convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or
(d) the other party has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 Schedule B1); or
(e) any similar event occurs under the law of any other jurisdiction in respect of that party.
(2) Either party shall be entitled to terminate the Agreement on written notice to the other party if the other party commits a material breach of any term of the Agreement which, in the case of a breach capable of remedy, shall not have been remedied within 5 days of receipt by the other party of a notice from the non-defaulting party specifying the breach and requiring it to be remedied.
(3) On request, and in any event on termination of this Agreement for whatever reason, each party shall deliver up all Confidential Information and (to the extent not so comprised therein) all correspondence, documents and other property belonging or relating to the other party, and neither party shall, without the prior written consent of the other, make or retain copies of any such documents.
(4) Termination of the Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of the Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other.
(1) Subject to the exclusions set out in paragraphs (2)(a) and (2)(b) Design Pit warrants that the Deliverables will be free from defects for a period of 6 months from delivery.
(2) The exclusions mentioned in paragraph (1) are:
(a) the defect arises from wilful damage, inappropriate use or working conditions, failure to follow any storage or usage instructions supplied, misuse or alteration or repair of the Deliverables;
(b) the Fees have not been paid in full under the Agreement.
(3) All other conditions, terms, representations, and warranties relating to the Services or the Deliverables, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these Terms are hereby excluded.
(1) Unless expressly prohibited by the Client, Design Pit shall have the right, without further reference to the Client, to;
(a) publicise the fact that the Client is, or was, a Client and to utilise the Client’s name in publicity materials in this respect; and,
(b) describe in general terms, the type of work conducted for the Client; and,
(c) publish any work created for the client and use it in Design Pit’s design portfolio.
(2) Wherever the results contained in any Deliverables are used in any information publicly released by the Client, the Client agrees to identify Design Pit as the author unless Design Pit explicitly waives this right. This provision is notwithstanding the over-riding position over ownership of the said Deliverables.
16. RECRUITMENT OF PERSONNEL
Each party undertakes to the other that it shall not attempt to solicit or procure the services of any officer, employee, contractor or agent of the other party during the continuance of the Agreement and for a period of 6 (six) months thereafter without the written permission of the other party.
17. ILLEGAL ACTIVITIES
(1) Design Pit will not carry out any illegal activities on behalf of the Client. Any requirement of the Client that Design Pit carry out or participate in any unlawful or illegal activity will entitle Design Pit to void the Agreement by notice to the Client and Design Pit will immediately become entitled to recover in full any due charges and Expenses.
(2) The Client agrees not to make any illegal use of any of Design Pit’s Intellectual Property.
18. LIMITATION OF LIABILITY
(1) Design Pit shall be under no liability whatever to the Client for any indirect loss and / or expense (including loss of profit) or consequential loss of any nature suffered by the Client arising out of the breach by Design Pit of the Agreement and save as specifically set out, all liability on the part of Design Pit is limited to the value of the Agreement or to the value of the loss whichever is the smaller.
(2) Design Pit provides information and advice when providing the Services. Such information and advice will be based upon information available to it at the time. Design Pit is not responsible for the accuracy of information provided to it by the Client. The Client agrees and understands that it is responsible for the consequences of anything resulting from the provision by it of inaccurate information to Design Pit or the provision of any information which, when published in any form is in breach of any codes of practice or regulations concerning advertising material and the Client agrees to indemnify Design Pit against any loss or damage resulting therefrom.
(3) It is for the Client to decide whether or not to accept any advice. Design Pit advises that any data or information which is critical to a decision to be made by the Client should be independently verified prior to being acted upon. Design Pit accepts no liability for any loss or damage sustained by the Client which is consequent upon any use made by the Client of any information, opinions and advice given by Design Pit, whether such loss or damage be direct or indirect.
(4) All warranties and conditions whether implied by statute or otherwise are excluded from every Agreement made with the Client provided that nothing in these Conditions shall restrict or exclude liability for death or personal injury caused by the negligence of Design Pit.
19. GENERAL AND DEFINED TERMS AND DEFINITIONS
(1) Any disputes or claims shall be governed by and construed in accordance with English law and the jurisdiction of the English courts.
(2) All unresolved disputes between the Parties shall be referred to arbitration as necessary.
(3) Both parties also agree that all disputes arising with respect to this contract will be arbitrated upon within the English legal system.
(4) The failure by either party to enforce at any time or for any period any one or more of the Terms of the Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all Terms it.
(5) The Client agrees that all of the Terms form part of the Agreement between Design Pit and the Client, except where explicitly excluded or modified in writing and shall take precedence over and shall not be varied by any other means including any terms or conditions that the Client may from time to time apply to suppliers.
(6) In every Agreement between the parties, the following words and phrases shall have the following meaning:
“Business Cards” is a Deliverable being a card on which the details of an individual and the Client are set out which is [describe by reference to maximum size, whether or not double sided, type of material on which printed];
“Client” means a party entering into a contract for the provision of the Services;
“Confidential Information” means all confidential or proprietary information (however recorded or preserved) of the Client that is disclosed or made available (in any form or medium), directly or indirectly, by the Client to Design Pit;
“Creation” means any visual representation in any format, any artwork, shape, design, sound, picture, text, printed material or object of any nature produced by Design Pit under the Agreement;
“Deliverables” means any tangible product, document or thing created in the course of delivering the Services, or any work or database or other creation in which Intellectual Property rights can subsist (where the work or creation is reduced into a computer readable file) and in any case, as produced by Design Pit in the provision of the Services but Deliverables shall not include complex or detailed illustrations, software code and website development, a video production to broadcast quality standard;
“Delivery Date” means the date by which Design Pit intends to provide the Services and / or the Deliverables;
“Design Pit” means DESIGN PIT LIMITED, Company No.: 07025493, Registered Office: Trinity Place, Midland Drive, Sutton Coldfield, West Midlands B72 1TX VAT no. [ ];
“Design Pit’s Proprietary Rights” the Intellectual Property rights that were created, developed or acquired by Design Pit otherwise than for the purposes of providing the Services under this Agreement;
“Fees” means the monies to be paid by the Client to Design Pit in accordance with the terms of this Agreement;
“Flexi Hour” is a Studio Hour that has not yet been used and which may be carried forward or backward by the Client subject to clause 3.
“Intellectual Property” means any copyrights, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered including logos), database rights, business names, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for the registration or protection of any or the foregoing) as may exist anywhere in the world;
“Package” means a particular menu of Services to be provided as selected by the Client;
“Services” means any Services provided under these Terms by Design Pit as set out in the Schedule;
“Studio Hour” is a single complete hour during which Design Pit provides Services.
“Terms” means these terms and conditions of Agreement;
“Third Party Rights” the Intellectual Property owned by or licensed by third parties.
(7) Clause headings shall not affect the interpretation of a Agreement.
(8) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(9) Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
(10) A reference to ‘writing’ or ‘written’ includes faxes and e-mail.
(11) References to clauses and paragraphs are to clauses and paragraphs of the Terms and the Proposal.
(12) For the purposes of the Agreements (Rights of Third Parties) Act 1999 it is agreed that nothing in these Conditions shall confer on any third party any right to enforce or any benefit of any term in these Conditions.
SCHEDULE – PACKAGE SPECIFICATION
The Package levels are broadly defined below but can change from time to time as specified and decided at the sole discretion of Design Pit.
- ‘Access Package’ means 4 Studio Hours per month, quarterly planning emails and monthly bulletins
- ‘Accelerator Package’ means 6 Studio Hours per month (including 4 Flexi-Hours), quarterly planning emails and monthly bulletins
- ‘Activator Package’ means 10 Studio Hours per month, (including 6 Flexi-Hours), quarterly planning emails, quarterly planning visit and monthly bulletins