In these terms and conditions the following shall mean:-
“Charges” means any charges, fees or other remuneration (excluding Value Added Tax) payable by the Client to the Company for Services and/or Goods specified in the Contract.
“Client” means the company and/or individual specified in the Contract.
“Company” means Tribe Marketing Limited.
“Conditions” means these terms and conditions as amended in accordance with the provisions of clause 2b).
“Contract” means any contract between the Company and the Client whereby Services and/or Goods are provided by the Company to the Client, on these Conditions.
“Data Protection Legislation” means up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, the regulations and secondary legislation, as amended from time to time, in the UK and then (ii) any successor legislation to the GDPR for the Data Protection Act 1998.
“Deliverables” means all promotional materials including all copy, layouts, artwork, storyboards, script, presentations, drawings, documents, charts, graphics, photographs, films and/or other materials created or produced by or on behalf the Company for the Client in the course of providing the Services, on any media.
“Force Majeure Event” has the meaning given to it in clause 13.
“Goods” means any goods, materials or products provided by the Company to the Client pursuant to a Contract.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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 Company’s order acknowledgement form as completed by the Client.
“Promotion” means a marketing promotion prepared by the Company for the Client.
“Services” means any services, including the Deliverables and any presentation or proposal, supplied by the Company to the Client pursuant to a Contract.
- These Conditions are, subject to the terms of this Clause 2, the sole terms and conditions upon which the Company supplies the Goods and Services and carries on its business. They shall govern all offers, estimates, quotations, acceptances, contracts and other transactions between the Company and the Client, to the exclusion of all other terms and conditions including those of the Client provided that where in performing the Contract by the provision of Goods, the terms of trading of the suppliers of Goods, including any guarantees and warranties shall apply to the supply of such Goods.
- These Conditions may only be varied with the express written consent of a board director of the Company and are deemed accepted by the Client by virtue of their inclusion in any document forming part of the Contract and automatically take effect from the commencement of any Services to be performed or Goods to be delivered pursuant to the Contract.
- No estimate or other proposal (in whatever form) given by the Company or by any of its duly appointed agents constitutes an offer. All Orders accepted by the Company are subject to these Conditions.
- These Conditions embody the entire agreement and understanding of the parties and supersede all other contracts, representations or undertakings in respect of a Contract and the Goods and Services to be provided pursuant to such contract.
- If the Company has provided in any estimate, quotation or any contractual document any drawing, photographs, illustrations, specifications, statistics, data or descriptive matter relating to the Services and Goods to be provided, the same shall be taken as an estimate only. They do not constitute a description of the Services or Goods, shall not be taken to be representations made by the Company and are not warranted to be accurate. The Client acknowledges that the sale of the Goods is not a sale by sample.
- APPROVAL AND AUTHORITY
- The conclusion of a binding contract pursuant to Clause 2 shall constitute the Client’s authority for the Customer to proceed to the preparation of the Deliverables.
- The Company shall submit the Deliverables together with any further or revised estimates of the costs applicable to a Promotion to the Client for specific approval.
- The Client’s written approval of the Deliverables and estimates referred to in Clause 3 b) shall be the Company’s authority to proceed with the Promotion to the extent agreed to by the Client.
- DELIVERY OF GOODS
- The Company shall ensure that each delivery of Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods and special storage instructions (if any).
- If the Contract between the Company and the Client specifies a time and date for the delivery of the Goods, such time and date are approximate only. Time and date of delivery is not of the essence and the Company shall not be liable for any delay in the delivery of the Goods that is caused by a Force Majeure Event or by the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- Should expedited delivery or performance be agreed by the Company and necessitate overtime or other additional cost, an additional charge shall be payable by the Client.
- In the event of any delay by the Company to deliver the Goods, the Company shall not be liable for any indirect or consequential loss or damage suffered by the Client (including loss of profit or the increased costs of any promotion) and the Client shall not be entitled to rescind the Contract or any part thereof in the event of any delay.
- The Company shall not be liable for any loss or damage incurred by the Client or the increased costs of a Promotion which:-
- result from any circumstances which are the Client’s responsibility under the Contract; or
- arise from any omission or error in any copy or other material which has been approved by the Client; or
- otherwise arise in the absence of negligence on the part of the Company; or
- arise for reasons outside the Company’s direct control, whether or not due to the Company’s negligence.
The Client shall not be entitled to rescind the Contract or any part thereof in such circumstances.
- The Client shall not be entitled to reject the delivery of Goods by reason only of shortfall in or excess numbers of items delivered.
- In relation to deliveries of Goods made directly to the Client or its nominee, advice of:
- damage, delay or partial loss of Goods in transit; or
- of non-delivery of Goods; or
- delivery of Goods not complying with the description ordered under the Contract,
must be given in writing to the Company within seven clear days of delivery (or in the case of non-delivery within seven clear days of the date when delivery was due). Any claim in respect thereof must be made in writing to a director of the Company within fourteen clear days of delivery (or in the case of non-delivery within 14 days of the date when delivery was due).
- All other claims must be made in writing to the Company within ten days of delivery. The Company shall not be liable in respect of any claim unless the aforementioned requirements have been complied with.
- The Company shall not be liable for any warping or distortion of cardboard paper goods and plastic (being hygroscopic materials subject to variations in temperature and humidity both natural and artificial) and the Company shall not be liable for any variance in the quantities of Goods (being stationary or printed material) which does not exceed 10% of the quantity ordered nor for any shortage of loose sheets.
- TERMS AS TO QUALITY OF GOODS
- The Company shall take all reasonable steps to ensure that the Goods supplied will be of a standard appropriate to the purpose for which the Goods are to be used and which have been notified to the Company by the Client in writing, provided that where the Goods are obtained from a third party, the Goods are supplied on the basis of the disclaimers and warranties which govern supplies from such third party.
- All other conditions and warranties, express or implied by common law, statute or otherwise are hereby expressly excluded and subject to Clause 14, the Company shall have no liability for any loss of whatsoever description suffered by the Client by reason of any breach or alleged breach of any Contract by the Company, or by reason of its negligence (or that of its sub-contractors).
- The Company shall not be liable for a failure to comply with its obligations under Clause 5a) or otherwise concerning the quality of the Goods if:
- the Client does not notify the Company of the defect as soon as is reasonably possible and in any event within the period specified in Clauses 4g) and 4h) (immediately confirming in writing any oral notification);
- the Client makes any further use of the Goods after giving notice in accordance with Clauses 4g) and 4h);
- the Client alters or repairs such Goods without the written consent of the Company,
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions ;
- the Client is provided a reasonable opportunity to inspect all Goods delivered;
- the Customer (if requested to do so by the Company) returns such Goods to the Company at the Company’s costs; and
- there is a reason to believe that the defect is a result of damage in the course or delivery by a carrier engaged by the Company the conditions as to notification required hereby shall also require equivalent notice to the carrier.
- SUPPLY OF SERVICES
- The Company shall supply the Services to the Client in accordance with the terms of the Contract.
- The Company shall use all reasonable endeavours to meet any performance date for the Services as agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- The Company warrants to the Client that it will provide the Services using reasonable care and skill.
- Due to the nature of the Services provided by the Company, the Company shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any research information provided (if any) to the Client by the Company under the Contract which is incorrect or inaccurate as a result of the size of the sample groups used or inaccurate responses and the Client shall rely on any statistical information provided by the Company to the Client at the Client’s own risk.
- OBLIGATIONS OF THE CLIENT
- The Client shall inform the Company forthwith:
- if any claim, statement or representation in any Promotion to be carried out is, will be, or is likely to be deemed defamatory, in breach of copyright or otherwise constitutes a violation or infringement of the rights of any person, firm or company or in breach of the terms of any Act or provision of the law or is in any other way unlawful; or
- if any claim or trade description in any work comprised in the Services and/or the Goods and submitted by the Company to the Client for approval is false or misleading.
- The Client shall ensure that all information concerning the Client’s products or services required by statute or otherwise to be displayed during a Promotion is displayed in accordance with such legislation, and shall be responsible for ensuring the legality of all promotional or other materials prepared on behalf of the Client by the Company or its agents.
- The Client shall be responsible for the selection or approval of Goods to be used in any Promotion and shall ensure that all such Goods are entirely suitable for that type of Promotion. The Company shall not be liable for any loss incurred by the Client as a result of any use made of the Goods for any purpose other than the purpose for which the Goods are designed.
- The Client shall, prior to any printing or publication or of any use being made by the Client of any Services and/or Goods provided to the Client by the Company,
- approve in writing all such Services and/or Goods; and
- confirm in writing that the Services and/or Goods are accurate and conform to the terms of the Contract.
- The Client shall treat in complete confidence any conceptual work provided by the Company. Any implementation by the Client of a concept or any part of a concept presented by the Company without the appointment of the Company by the Client shall be a breach of these Conditions and the Client agrees that it shall pay to the Company as liquidated and ascertained damages a fee of 15% of the total expenditure above and below the line of the concept implementation and any linked activity incurred by the Client in exploiting such concept.
- The Client shall 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 commence.
- The Client undertakes to the Company that it shall not at any time directly or indirectly solicit or endeavour to entice away from the Company any director, employee or consultant of the Company or employ any former director, employee or consultant of the Company.
- The Client shall ensure that all the Deliverables as part of the Services comply with all relevant laws and do not breach the laws relating to financial services or any code applicable to the Client’s business and the Client shall indemnify the Company for any loss suffered in connection with the same.
- If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
- without effecting any other right or remedy available to it, the Company shall have the right to suspend the performance of its obligations under the Contract until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of its obligations in each case to the extent the Client Default prevents or delays the Company’s performance of any of its obligations.
- the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out this Clause 7i); and
- the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
- The Company shall provide the Services and Goods in accordance with the Contract and the Client shall pay the Charges specified thereon. The Charges set out in an Order are an estimate only and the Client agrees to pay the actual costs incurred by or payable to the Company in performing the Contract. The Company shall use its best endeavours to perform the Contract in compliance with estimated charges. In addition to the Charges, the Client shall pay for any additional expense not provided for in the Contract and incurred by the Company as a result of variations or alterations to the Services and/or Goods (or the termination thereof in accordance with Clause 18) requested by the Client and to which the Company agrees.
- The Company shall invoice the Customer upon signature by the Client of the Order 50% of the known and quoted costs, which shall be payable within 7 days by the Client. The Company shall invoice the Client for the balance due and payable upon commencement of the Services or the delivery of the Goods, unless otherwise explicitly agreed and set out in the order acknowledgement form. Any advance payments agreed between the Company and the Client shall be non-refundable.
- If the Client requires services and/or goods other than those specified in the Contract to be provided by the Company such services and/or goods shall be the subject to additional charges.
- All work produced whether experimental, preliminary or otherwise at the Client’s request will be charged for and the Client agrees to accept such charges.
- The Client shall reimburse the Company all travelling and out-of-pocket expenses incurred in the performance of the Services and the provision of Goods.
- All Charges and any additional costs payable by the Client are quoted exclusive of Value Added Tax and any other tax or duty which may be payable thereon from time to time. The Client agrees that it shall pay Value Added Tax and other taxes to the Company in respect of the Charges.
- The Company shall have the right to invoice the Client in advance or from time to time for any Services and/or Goods to be provided by the Company. If a supplier of Goods or Services to the Company requires payment in advance or at various stages of production, the Client shall pay interim invoices in respect of such Goods or Services immediately on presentation by the Company of such charges. The Company is entitled to retain all commissions received by it in the purchase of Goods and Services made on behalf of the Client.
- Charges are strictly net unless otherwise agreed and payment of the same shall (subject to sub Clause 8b) and 8g)) be made in full (without any set off deductions or withholdings whatsoever) within 30 days from the date of the invoice.
- If any sum owing to the Company by the Client on any account whatsoever is not paid on its due date or if the Company otherwise becomes reasonably dissatisfied with the Client’s credit standing, the Company may (without prejudice to any other rights or remedies it may have) suspend the performance of its obligations under the Contract until such time as arrangements are made which are satisfactory to the Company.
- Time of payment shall be of the essence. If any payment that is to be made under the Contract by the Client to the Company is not made by the due date, interest will be chargeable thereon (after as well as before judgement) on a day to day basis at a rate equivalent to an annual rate of 4 per cent above the Barclays Bank plc Base Rate from time to time until the sum due is paid in full and without prejudice to any other rights of the Company.
- The Company may vary the Charges (and the Client will accept such variations) to reflect any increase in the costs (whether direct or indirect) incurred by the Company in the production or procurement and supply of Services or Goods between the date of the Company’s estimate and the date on which such Services are performed and/or Goods delivered.
The Goods and all physical Deliverables shall be at the risk of the Client from the time at which they leave the Company’s premises for delivery to the Client or its nominee or agent and the Client shall be responsible for insuring the Goods from that time.
The Goods and all physical Deliverables are sold subject only to such conditions as to title as are implied by statute.
- PASSING OF PROPERTY
- Until such time as the Client has paid all sums due to the Company in respect of the Goods, all right and title and property in the Goods shall remain in the Company and the Client will hold the Goods as the Company’s bailee and fiduciary agent.
- Until all right and title and property in the Goods have passed to the Client, the Client shall:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risk for their full price on the Company’s behalf from the date of delivery;
- notify the Company immediately if it becomes subject to the events listed in Clause 18a)(i); and
- give the Company such information relating to the Goods as the Company may require from time to time.
- Title to all physical Deliverables prepared for the Client by the Company shall pass to the Client upon payment of all sums due to the Company in respect of the relevant Deliverable.
- The Client shall return on demand to the Company all Goods not paid for in full within two months of delivery.
- GENERAL LIEN
The Company shall, in respect of all unpaid debts due from the Client, have a general lien on all goods and property belonging to the Client in the Company’s possession and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as it thinks fit and to apply the proceeds towards such debts.
- FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control.
- LIMITATION OF LIABILITY
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- Subject to clause 14a), the Company’s total liability to the Client shall be limited to the total amount of fees paid by the Client under the Contract in respect of Goods and/or Services, less the total amount which is recovered (or capable of recovery) by the Client from any third party in respect of that loss or damage. The Company’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
- Subject to Clause 14a), the following types of loss are wholly excluded:
- Loss of profits.
- Loss of sales or business.
- Loss of agreements or contracts.
- Loss of anticipated savings.
- Loss of use or corruption of software, data or information.
- Loss of or damage to goodwill.
- Indirect or consequential loss.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Conditions.
- This clause 14 shall survive termination of the Contract.
- The Company shall treat in complete confidence all the marketing and sales information and statistics and data supplied by the Client and (save with the prior consent of the Client) shall not (whether before or after termination of the Contract) disclose any confidential information supplied to it by or on behalf of the Client in connection with any Contract for Services and/or Goods for which payment in full has been received by the Company.
- Notwithstanding the provisions of clause 15a) above the Client acknowledges the right of the Company to use as it thinks fit such general marketing or advertising intelligence in the field relating to and obtained as a result of the supply of the Services or Goods to the Client.
- INTELLECTUAL PROPERTY RIGHTS
- The Intellectual Property Rights in all Deliverables supplied by the Company to the Client for the purposes of any Contract shall remain with the Company unless a director of the Company gives express agreement to the contrary in writing provided always that where the aforesaid Intellectual Property Rights are vested in a third party, such Intellectual Property Rights shall remain with that third party.
- The Company grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, non-exclusive, royalty-free non-transferrable licence to copy and use the Deliverables for the purpose for which it was supplied by the Company to the Client under a Contract.
- The Company will retain the Intellectual Property Rights in any material or service contained in any presentation made to the Client in competition with any other person.
- If following a presentation a Contract is not made between the Client and the Company or on the termination of a Contract, the Intellectual Property Rights in and physical ownership of any advertising plans and ideas prepared by the Company shall remain vested in the Company and shall not thereafter be used by the Client regardless of whether or not the physical embodiment of any creative work is in the possession of the Client whether in the form of copy, artwork, plates, films or otherwise and the Client shall makes those available for collection by the Company.
- The Company shall retain the Intellectual Property Rights in all transparencies supplied by the Company to the Client for the purposes of any Contract and the Client shall be liable and reimburse the Company for any loss or damage whatsoever caused to any of those transparencies so lent to it.
- The Company will keep in its care all sales promotion materials entrusted to it by the Client and forthwith upon completion of the provision of the Services the Company shall be entitled to destroy or otherwise dispose of all such material left in its custody.
- The Client grants the Company a fully paid-up, non-exclusive, royalty-free non-transferrable licence to copy and modify any materials provided by the Client to the Company for the terms of the Contract for the purpose of providing the Services to the Company. The Client shall indemnify the Company against any loss or damage arising out of an infringement of any rights of any third party as a result of the Company exercising its rights under any licence granted to it by the Client in accordance with this clause 16g).
- All lithographic reproduction work including, without limitation, positives, negatives and plates will remain the property of the Company.
- The Client shall not sub-licence, assign or otherwise transfer the rights granted by Clause 16b).
- The Company shall notify the Client promptly on becoming aware of any actual or threatened claim against the Client by any third party in connection with the Deliverables and the Services (or the use of the latter by the Client or any of its licensees), in each giving full details of that unauthorised use and/or claim.
- DATA PROTECTION AND DATA PROCESSING
Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause and any further data processing agreement to be entered into by the parties is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- Notwithstanding anything to the contrary express or implied elsewhere in the Contract the Company (without prejudice to its other rights) may at its sole discretion either terminate the Contract forthwith or suspend the provision of the Services and/or delivery of the Goods until further notice on notifying the Client to that effect in writing in the event that one or more of the following occurs namely:-
- a liquidator (other than for the purposes of amalgamation or reconstruction) trustee in bankruptcy, administrator, receiver, administrative receiver or receiver and manager is appointed in respect of the whole or any part of the assets and/or undertaking of the Client or the Client enters into any arrangement or composition with its creditors or any similar appointment, arrangement or composition is made under any applicable law; or
- the Client fails to make any payment due to the Company under the Contract by the due date or is otherwise in substantial breach of any of the terms of the Contract.
- The Client shall only be entitled to cancel or terminate the Contract with the prior written consent of a director of the Company.
- Upon termination (whether of whole or part) of the Contract by the Client, the Client shall pay the Company the following amounts:
- in the event of such termination by the Client during the period 8 weeks or more prior to the relevant date for the provision of the Services and/or delivery of the Goods, 30% of the quoted costs of people, 50% of the quoted management fee and all such other costs and expenses suffered or incurred by the Company in respect of the Contract; or
- in the event of such termination by the Client during the period less than 8 weeks but more than 4 weeks prior to the relevant date for the provision of the Services and/or delivery of the Goods, 50% of the quoted costs of people, 75% of the quoted management fee and all such other costs and expenses suffered or incurred by the Company in respect of the Contract; or
- in the event of such termination by the Client during the period 4 weeks or less prior to the relevant date for the provision of the Services and/or delivery of the Goods, 100% of the quoted costs of people, 100% of the quoted management fee and all such other costs and expenses suffered or incurred by the Company in respect of the Contract.
- The termination of the Contract shall not affect the provisions of the Contract that are expressed to operate (or have effect) thereafter.
- THE COMPANY AND THIRD PARTIES
- The Company shall act as a principal at law only in those contracts with third parties where it has notified the Client that it is so acting. Subject thereto, the Company shall act as agent of the Client in all contracts with third parties in performing this Contract.
- Where the Company recommends a supplier (whether a printer, handling house, haulier, warehouse keeper or otherwise) in connection with the provision of the Services and/or Goods under the Contract, the Client shall satisfy itself as to the suitability of such supplier and the Company shall not be liable to the Client for any costs or losses incurred by the Client which result from a failure caused by the actions or defaults of any approved third party.
- ADVERTISING STANDARDS
In order to satisfy the requirements of the Advertising Standards Authority, the British Code of Advertising Practise, the British Code of Sales Promotion Practise, the Code of the Association of Mail Order Publishers, the code of the British Direct Marketing Association and other codes of advertising standards laid down voluntarily within the advertising and sales promotion industry to ensure that all advertising placed by the Company is legal, decent, honest and truthful and in order to satisfy any statutory requirements and in the interests of the Client, the Company and the public, the Client agrees to supply the Company immediately with objective factual evidence, if so required, in support of any product claims or services claims the Client wishes the Company to make in the Services or Goods. Whereas the Company will use its reasonable endeavours to comply with the aforesaid codes and any other relevant codes, rules or statutes, it shall be the Client’s ultimate responsibility to ensure compliance therewith.
The Client shall not transfer or assign in whole or in part its right or obligations under the Contract without the prior written consent of the Company.
The Company may sub-contract the performance of the Contract or any part thereof.
Any notice to be given hereunder shall be in writing and be deemed to have been properly given if served personally by the party giving notice or if sent or delivered to the party concerned by pre-paid recorded delivery letter, telex, cable or facsimile transmission at its address specified in the Contract or such other addresses as that party may from time to time notify in writing to the other party. Any notice personally delivered to such address shall be deemed to have been given on the date of such delivery. Any notice sent by pre-paid recorded delivery post shall be deemed to have been given 48 hours after posting and notice by telex, cable or facsimile shall be deemed to have been served when the same would first be received in normal business hours in the ordinary course of transmission
- APPLICABLE LAW
- The construction, validity and performance of the Contract shall be governed by English Law and Client and the Company submit to the exclusive jurisdiction of the English Courts.
- If any provision of these terms and conditions of business shall to any extent be invalid illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and each of the provisions of these terms and conditions shall be valid, legal and enforceable to the fullest extent permitted by law.
The headings in these terms are for convenience or reference only and do not affect the interpretation of any clause.