Terms of Business

1. Definitions

“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. Conditions

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. Payment and Interest

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. Supply of Services

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  his/her services to the best of his/her technical and creative skill and to be solely  responsible for how the services are provided; 

4.3 To the best of his/her 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  his or her appointment; 

4.5 To use such suitably qualified and experienced personnel as he or she 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. Client’s obligations

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. Confidentiality

6.1 The Agency hereby agrees that during the course of his or her 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  he or she shall use his or her 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. Intellectual Property Rights

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 his 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 his 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. Limitation of Liability

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. Termination of Agreement

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 him or her or making  any arrangement with his or her creditors or having an interim order made against him  or her; 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. Consequences of Termination

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 his or her 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 him or  her. He or she 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. 

11. Indemnification

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. 

12. Non-Solicitation

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. 

13. Advertising/Publications

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). 

14. Insurance

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. Data Protection and Data Processing

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. Entire Agreement

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. Force Majeure

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. 

18. Severability

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. 

19. Waiver

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. Law and Jurisdiction

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).