M Scott T/A 59deluxe Terms of Business

These terms and conditions shall govern the contract between (1) 59deluxe and (2) the Client. 59deluxe Ltd may agree modifications to these terms but such modifications must be in writing signed by 59deluxe and cannot be inferred from a course of behaviour.

1.SCOPE OF CONTRACT

a. 59deluxe provides brand marketing design and interactive media consultancy advice and services relating to the promotion of the Client’s goods and/or services and the Client’s brand and corporate identity, and will (on request) pitch for such work (a “Pitch”) and/or (ii) will provide such advice in accordance with a brief agreed in writing (“the Service”).

b. In the event of an unsuccessful Pitch the Client will not use any design documents, concepts or information provided as part of the Pitch (“Pitch Material”) and will return all Pitch Material to 59deluxe.

c. If the Client shall have any complaint about the quality of the Service or goods provided then notice shall be given to 59deluxe within 7 days of delivery. In the absence of such notification the Client shall be deemed to have accepted the supply.

d. A binding contract for the provision of the Service will be made when 59deluxe confirm in writing the instructions received from the Client.

e. 59deluxe cannot guarantee that emails sent to it or its agents or representatives will be received and all critical communications should be sent requesting a return Read Receipt or post/recorded delivery.

f. 59deluxe will accept and act upon instructions communicated to it by any means whatsoever by the Client and/or its representatives, agents or authorised persons and is not obliged to seek verification of such instructions.

2. CLIENT’S DUTY TO PROVIDE INFORMATION AND FOR MATERIALS SUPPLIED

a. The Client shall be solely responsible for providing 59deluxe with all necessary information concerning its goods/services, the Service (including the scope of use required), the market and generally. 59deluxe shall not be responsible for any shortcomings in such information. The Client accepts that its knowledge and experience in its industry sector and the manufacture, processing and packaging of its goods is vital in this regard.

b. Any advertising material supplied by or on behalf of the Client must comply with the Trade Descriptions Acts 1968 and 1972 and any other applicable laws and regulations.

c. The Client shall be responsible for providing all necessary permissions, licences and consents which may be required for the provision of the Service unless 59deluxe has expressly agreed in writing to do so.

d. The Client warrants that it either owns or holds the necessary licence(s) in respect of materials supplied by it to 59deluxe in connection with the provision of the Service and will indemnify 59deluxe against all costs, claims, liabilities and losses if this is not the case.

3. DELIVERY

a. The delivery times of the Service stated by 59deluxe are reasonable estimates and 59deluxe shall not be responsible for any delay that is not directly attributable to the fault of the 59deluxe which for the avoidance of doubt means any circumstances or events beyond 59deluxe’s reasonable control.

b. The Client recognises that for 59deluxe to be able to perform the Services in a timely fashion and to meet any agreed timetable the Client must also respond to enquiries and deal promptly with the signing off and approval of materials submitted to it. The Client acknowledges that if it fails to do this then 59deluxe cannot be expected to perform the Service within the agreed period of time.

4. CONTRACT PRICES/TITLE

a. The Contract Price includes:-Studio costs (such as sub contractors); and Studio fees.

b. Reasonable expenses (including materials, travelling, accommodation, courier fees and electronic costs) will be charged in addition to the Contract Price.

c. 59deluxe reserves the right to add a reasonable handling charge on expenses and costs.

d. Any estimate of the whole or any part of the Contract Price is given based upon information available to 59deluxe at the time and shall remain valid for 28 days and is given in good faith and shall be treated as an estimate only and all errors and omissions shall be accepted.

e. The Client must contact 59deluxe concerning any queries with an invoice within 3 working days of the date of the invoice.

f. Payment of the Contract Price shall be made in pounds sterling within a maximum period of 30 days of the Client’s receipt of 59deluxe’s correct invoice. 59deluxe shall be entitled to charge interest and claim compensation on overdue sums in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. Interest will be calculated from the invoice date to the date of payment.

g. Title to or licence to use any property or intellectual property forming part of the Service shall pass to the Client when and only when the full Contract Price for the Service has been paid.

h. All costs for expenses where quoted as estimated are exclusive of VAT and local taxes which will be charged at the appropriate rate.

i. Where the Contract is quoted in stages then each such stage shall be under these conditions and 59deluxe shall be entitled to be paid a proportion of the estimated Contract Price for each stage in advance.

j. For new business, 59deluxe may, at its discretion, invoice a proportion of the total estimated fees and/or costs in advance and will not commence work until this has been settled.

k. 59deluxe reserves the right to withhold final delivery of work until all of its fees and expenses have been paid in full.

l. Unless agreed otherwise in writing the Contract Price will make provision for up to 2 sets of reasonable and minor author corrections and further corrections shall be charged for as additional work.

m. The Client shall pay 59deluxe any expenses incurred by or in connection with the recovery of monies owing by the Client to 59deluxe.

5. INTELLECTUAL PROPERTY

a. Graphic Designs (including electronically displayed designs) the Service includes 59deluxe’s copyright in the final design chosen by the Client for implementation.

b. For the avoidance of doubt the Final Graphic Design does not include any copyright in any software, code or script). The Client agrees not to exploit the Final Graphic Design outside the market category and territory for which the Service was provided except with 59deluxe’s written consent.

c. Software: Whilst 59deluxe (and it’s successors in title) is hosting the Client website in respect of which the Service has been provided 59deluxe grants to the Client a non exclusive non assignable licence to use the Software.

d. Multi Designs: If more than one design is chosen by the Client and this was not provided for in the agreed brief for that Service an additional fee may be payable by the Client. The Client is reminded that they will not acquire any usage rights for any designs not paid for.

e. Sub-contractors Intellectual Property (i) 59deluxe will use all reasonable endeavours to secure the relevant intellectual property rights of its sub-contractors.

f. (ii) Clients are reminded that illustrators usually retain ownership of the original illustration and may demand its return undamaged although this should not restrict the Client’s use of any illustration within the negotiated usage rights.

g. Originality: 59deluxe warrants that its own design work is original and that it will not knowingly or negligently infringe the rights or intellectual property of a third party but (unless expressly agreed to the contrary) it is under no obligation to make any enquiry in this respect and it shall have no liability to the Client in respect of any infringement or alleged infringement of intellectual property or passing off.

(h) Further Assurance: 59deluxe will on demand and at the cost of the Client execute such documents and do such things as are reasonably necessary to give effect to this clause. © 59deluxe

6. CANCELLATION OF CONTRACT

a. The Client shall be entitled to cancel the Service at any time upon 30 days notice and thereupon shall immediately pay to 59deluxe all fees due up to cancellation and all disbursements which cannot be cancelled.

b. Following cancellation and subject to the payment to 59deluxe of all sums due the Client shall be entitled to select and will receive title and intellectual property rights in accordance with clause 6 in one of the designs that have been presented to the Client prior to the date of termination.

c. 59deluxe shall be entitled to terminate the Contract if any part of the Contract Price (on any work being undertaken for the Client) is outstanding (but not formally disputed) 30 days after the due date, if the Client shall go into liquidation, receivership or equivalent (or if proceedings are issued in relation thereto) or if it shall enter into an agreement with its creditors, or if the Client is in material breach of these terms.

d. 59deluxe also reserve the right to terminate the Contract if in its reasonable opinion its continuing involvement with the Client or the project might be damaging to the goodwill and reputation of 59deluxe and in such circumstances the provisions of Clause 6 shall apply.

7. WEBSITE DEVELOPMENT

a. The Client acknowledges that any new inventions, designs or process which devolve in the provision of the services unless in relation to website or software development otherwise agreed shall belong to 59deluxe.

b. The Client shall take exclusive responsibility to ensure that any agreed specification contains full details of, and adequately, reflects the Client’s business and/or financial requirements in relation to any website commissioned by the Client.

c. The Client acknowledges that the website shall only be compatible or interoperable with the platforms, browsers and operating systems set out in the website specification and will only operate to any performance benchmarks set out in the specification.

d. On completion of the website development by 59deluxe the Client shall carry out an acceptance test for the purposes of confirming that the website has been successfully completed in accordance with the specification. The Client shall report any errors to 59deluxe within 15 working days of delivery including any additional information which may correct any error(s). If the Client fails to notify 59deluxe within this time period the website shall be deemed accepted by the Client.

e. 59deluxe will use reasonable endeavours to correct any bugs within a period of 2 months and deliver a corrected version of the website to the Client as soon as reasonably possible.

f. If on the Client’s request 59deluxe supply access codes for a third party developer to work on the site then any bugs or errors would be explored on an hourly basis and charged at the prevailing hourly rate. 59deluxe cannot be accountable for any errors caused by a third party developer.

g. If on the Client’s request 59deluxe supplies access codes for a third party developer other than a subcontractor of 59deluxe to work on the site then any bugs or errors would be explored on an hourly basis and charged at the prevailing hourly rate. 59deluxe cannot be accountable for any errors caused by a third party developer (other than a subcontractor of 59deluxe).

h. If payment has not been received by the due date, 59deluxe has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 21 days after the due date, 59deluxe has the right to replace, modify or remove the website and revoke the Client’s licence of the Work until full payment has been received. By revoking the Client’s licence of the Work or removing the website from the Internet, 59deluxe does not remove the Client’s obligation to pay any outstanding monies owing.

9. DUTY OF CONFIDENTIALITY

a. Each party will use its best 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 59deluxe’s methods of working and pricing structures are proprietary and are not generally in the public domain.

b. Each party shall comply with their obligations under the Data Protection Act 1998 relating to the use and storage of personal data.

10. CLIENT’S RESPONSIBILITY FOR IMPLEMENTATION

a. In the case of three dimensional designs:- (i) Subject to Clause 2 above, 59deluxe will advise on implementation based upon normal production methods and techniques. q (ii) Proposals for implementation of the Service are based upon the information provided by the Client and no warranty or representation is given concerning performance of any packaging.

b. 59deluxe is not responsible for the production of packaging, full responsibility for which remains with the Client.

c. The Client shall indemnify the company in respect of any claim howsoever arising under consumer protection or other legislation other than due to a default of 59deluxe.

d. Failure to consult 59deluxe on implementation or amendment may result in unsatisfactory implementation or amendment.

e. In the case of electronically displayed designs Clients are reminded that they may need to obtain relevant licences for proprietary software, and once the final electronically displayed design has been shown the Client must then inform 59deluxe of all final required alterations within days and upon completion of them the design will be deemed to have been accepted.

11. LIMITATION OF LIABILITY

a. The liability of 59deluxe under the Contract or in tort (other than in respect of death or personal injury) shall not exceed the greater of the sums paid by the Client under the contract or such sum as shall be receivable by 59deluxe in respect of any claim under any insurance policy effected by 59deluxe from time to time. 59deluxe warrants that it maintains insurances.

b. 59deluxe Ltd shall not be liable for any indirect or consequential loss (including loss of sales/profit, loss of production/goodwill/reputation, or packaging or distribution costs).

c. If the Service includes the provision of subcontractors then 59deluxe will advise on and procure the services of subcontractors who 59deluxe is satisfied are reasonably professionally competent. 59deluxe will not be responsible for any default of any third party or sub-contractor, manufacturer or supplier but will give all reasonable assistance to permit the Client to enforce its rights against them to include assigning all of its rights to the Client.

d. Where an error is found in delivered work that is the responsibility of 59deluxe then the liability of 59deluxe shall be limited to correcting or replacing (as appropriate) the work.

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

f. Unless advised by the Client in writing 59deluxe shall determine the print finish, colour balance, paper stock, weight, type and colour in addition to all other print quality related matters.

g. 59deluxe will, if requested by the Client in writing, scan images to a colour balance provided by the Client by way of reference to prints/transparencies supplied.

12. PUBLICITY AND EXAMPLES

a. Once the Service is in the public domain 59deluxe shall have a right to reasonable publicity.

b. 59deluxe Ltd hereby reserves and asserts all moral rights.

13. LEGAL

a. The Contract shall be subject to English Law and under the non-exclusive jurisdiction of the English Courts.

b. Any of these provisions which may be unenforceable shall (to that extent) be severable.