“Agency” means Trio Digital Ltd T/A Trio Media, Suite 3, Regents Court, 39a Harrogate Road, Chapel Allerton, Leeds, LS7 3PD
“Client” means the person who buys or agrees to buy the Goods/and or Services from the Agency.
“Conditions” means the terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Agency.
“Services” means the services supplied by the Agency to the Client as set out in the Order.
“Price” means the price for the Services, excluding VAT and any carriage, packaging and insurance costs.
“Intellectual Property Rights” means Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights 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.
“Order” means the Client’s order for the supply of Goods and/or Services, as set out in the Client’s written acceptance of the Agency’s quotation.
2.1 These Conditions shall form the basis of the contract between the Agency and the Client in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Client’s standard conditions of purchase or any other conditions which the Client may purport to apply under any purchase order or confirmation of order or any other document.
2.2 All orders for Goods and/or Services shall be deemed to be an offer by the Client to purchase Goods and/or Services from the Agency pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Client’s acceptance of these Conditions.
2.4 These Conditions may not be varied except by the written agreement of a director of the Agency.
2.5 These Conditions represent the whole of the agreement between the Agency and the Client. They supersede any other conditions previously issued.
3.1 Payment of the Price and VAT shall be due by the date set out on the Agency’s invoice.
3.2 Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of [8%] per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgment.
3.3 The Client shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by the Agency.
3.4 The Client shall be responsible for all debt recovery and legal fees associated with unpaid invoices.
4.1 To undertake and provide the Services in accordance with any brief and deadline agreed with the Client and;
4.2 To manage and carry out the Services in an expert and diligent manner and to provide their services to the best of their technical and creative skill and to be solely responsible for how the services are provided;
4.3 To the best of their ability, promptly and faithfully to meet the Deliverables and deadlines agreed with the Client;
4.4 The Agency is free to undertake and accept other engagements, except those which lead or might lead to any conflict of interest between the Agency and the Client during their appointment;
4.5 To use such suitably qualified and experienced personnel as they may from time to time deem appropriate;
4.6 The Agency has the right to supply a substitute of equivalent knowledge and expertise and acknowledges that the Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Business will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original and the replacement.
4.7 To keep the Client informed of progress on the Services in which they are engaged and shall produce written reports on the same from time to time when so requested by the Client. While the Agency’s method of working is entirely their own and they are not subject to the control of the Client, they shall nevertheless comply with this and any other reasonable requests of the Client (or its clients) which do not impact upon the Agency’s method of working.
5.1 The Client shall:
5.1.1 Ensure that the terms of the Order are complete and accurate;
5.1.2 Co-operate with the Agency in all matters relating to the Services;
5.1.3 Provide the Agency, its employees, agents, consultants and subcontractors, with access to the Client’s premises as reasonably required by the Agency to provide the Services;
5.1.4 Provide the Agency with such information and materials as the Agency may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
5.1.5 Obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
5.1.6 Keep and maintain all materials, equipment, documents and other property of the Agency (Agency Materials) at the Client’s premises in safe custody at its own risk, maintain the Agency Materials in good condition until returned to the Agency, and not dispose of or use the Agency Materials other than in accordance with the Agency’s written instructions or authorisation.
5.2 If the Agency’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
5.2.1 the Agency shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Agency’s performance of any of its obligations;
5.2.2 the Agency shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Agency’s failure or delay to perform any of its obligations as set out in this clause 5.1; and
5.2.3 The Client shall reimburse the Agency on written demand for any costs or losses sustained or incurred by the Agency arising directly or indirectly from the Client Default.
6.1 The Agency hereby agrees that during the course of their engagement under this Agreement they are likely to obtain knowledge of trade secrets and also other confidential information with regard to the business and financial affairs of the Client and those of the Client’s clients, customers and suppliers details of which are not in the public domain (‘Confidential Information’), and accordingly the Agency hereby undertakes to and covenants with the Client that:
6.1.1 They shall not use the Confidential Information other than during the continuance of this Agreement and in connection with the provision of the Services; and
6.1.2 They shall not after the date of this Agreement (save as required by law) disclose or divulge to any person other than to officers or employees of the Client whose province it is to know the same any Confidential Information and they shall use their best endeavours to prevent the publication or disclosure of any Confidential Information by any other person.
6.2 The restrictions set out in Clause 6 shall cease to apply to information or knowledge which comes into the public domain otherwise than by reason of the default of the Agency.
7.1 The Agency assigns to the Client all existing and future Intellectual Property Rights arising from the Services. The Agency also agrees to do all acts as may in the opinion of the Client be necessary to give effect to this Clause.
7.2 The Agency undertakes:
7.2.1 To notify to the Client in writing full details of any Intellectual Property Rights promptly on their creation;
7.2.2 To keep confidential details of all Intellectual Property Rights;
7.2.3 Whenever requested to do so by the Client and in any event on the termination of the Agreement, promptly to deliver to the Client all correspondence, documents, papers and records on all media (and all copies or abstracts of them), recording or relating to any part of the Services and the process of their creation which are in their possession, custody or power;
7.2.4 Not to register nor attempt to register any of the Intellectual Property Rights unless requested to do so by the Client; and
7.2.5 To do all acts necessary to confirm that absolute title in all Intellectual Property Rights has passed, or will pass, to the Client.
7.3 The Agency warrants to the Client that:
7.3.1 They have not given and will not give permission to any third party to use any of the Intellectual Property Rights;
7.3.2 They are unaware of any use by any third party of any of the Intellectual Property Rights; and
7.3.3 The use of the Intellectual Property Rights will not infringe the rights of any third party.
7.4 The Agency acknowledges that, except as provided by law, no further fees or compensation other than those provided for in this agreement are due or may become due to the Agency in respect of the performance of their obligations under this Clause 7.
7.5 The Agency waives all moral rights under the Copyright, Designs and Patents Act 1988 which the Agency has or may have in any existing or future works relating to the Services.
8.1 Nothing in these Conditions shall limit or exclude the Agency’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation;
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
8.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
8.1.5 defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
8.2.1 The Agency shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 the Agency’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £100,000.
8.3 After the Warranty Period, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
9.1 Either party shall have the right at any time to terminate this Agreement by not less than four week’s notice in writing to the other party following the initial 3 month contract period.
9.2 In addition, either party shall have the right to terminate this Agreement at any time by summary notice without any payment in lieu in the event of:
9.2.1 The other party being in material or persistent breach of any of the terms of this Agreement; or
9.2.2 The other party persistently and wilfully neglecting or becoming incapable for any reason of efficiently performing the Services or failing to remedy any default in providing the Services; or
9.2.3 The other party dying or becoming by reason of incapacity incapable of managing their affairs; or
9.2.4 The other party having a bankruptcy order made against them or making any arrangement with their creditors or having an interim order made against them; or
9.2.5 The other party taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business
9.2.6 There being a change of control of the other party; or
9.2.7 A party’s financial position deteriorates to such an extent that in the other party’s reasonable opinion that party’s capability to adequately fulfill its obligations under this Agreement have been placed in jeopardy; or
9.2.8 A party doing any action manifestly prejudicial to the interests of the other party or which in the opinion of the other party may bring them into disrepute; or
10.1 Upon the expiration or termination of the engagement under this Agreement for whatsoever cause, the Agency shall forthwith deliver up to the Client or its authorised representative all its property, including all equipment, materials, documents, any other papers which may be in their possession, custody or control and which are the property of the Client or which otherwise relate in any way to the business or affairs of the Client and no copies of the same or any part thereof shall be retained by them. They shall then (if required by the Client) make a declaration that the whole of the provisions of this clause have been complied with.
10.2 The Client shall immediately pay to the Agency all of the Agency’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Agency may submit an invoice, which shall be payable immediately on receipt;
10.3 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 which existed at or before the date of termination or expiry.
10.4 The termination of this agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.
In the event that Agency incurs any loss or expense (including reasonable attorneys’ fees and/or costs) as the result of any claim, suit or proceeding made or brought against Agency based upon or relating to any work which Agency has prepared for Client, with the exception of any claims based on damages alleged to have been intentionally caused by Agency, which work is either approved by you or was based on materials, statements, ideas or instructions from Client, Client agrees to indemnify Agency and to hold Agency harmless from and against any such loss or expense. The obligation to indemnify Agency hereunder shall not be deemed terminated upon cancellation.
Agency will not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of the Statement of Work. Agency’s maximum liability under this TOB shall not exceed the total fees received by it hereunder.
The parties to this Agreement agree that no effort shall be made to solicit employees from the other party, directly or indirectly, and that no compensation of any kind may be offered or provided to any person currently compensated by the other party without prior written consent by the prior compensation provider, for the term of this agreement as described below.
Client hereby grants Agency permission to release information with respect to the existence of the above referenced project in advertising, marketing, public relations or similar publications (such as, but not limited to, marketing brochures, press releases, case studies or references).
The Agency further warrants to the Client that they will:
14.1 Take out and maintain throughout the term of this Agreement, adequate professional indemnity insurance to protect themselves against any liabilities arising out of this Agreement and shall produce, at the request of the Client, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Client;
14.2 Take out and maintain throughout the term of this Agreement, adequate public liability insurance coverage to protect themselves against any liabilities arising out of this Agreement in respect of all and any contractors/employees they utilise to carry out the Services and shall produce, at the request of the Client, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Client.
15.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to the Contractor) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
15.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and the Agency is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
15.3 The Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Agency for the duration and purposes of the Contract.
16.1 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.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.1 If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;
17.2 For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:
17.2.1 Strikes, lockouts or other industrial action;
17.2.2 Terrorism, civil commotion, riot, invasion, war threat or preparation for war;
17.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;
17.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and
17.2.5 Political interference with the normal operations.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
20.2 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).
