1 Introduction
The following terms and conditions apply to the Contract (see definition below) and
each future request for the supply of services and/or materials received by Trinity
Create Limited from the Client (see definition below) from time to time unless
otherwise agreed in writing. The communication of a request by the Client to Trinity
Create Limited for the supply of services and/or materials shall amount to the Client’s
acceptance of these terms. These terms shall take precedence over any terms and
conditions of the Client, whether attached to, enclosed with or referred to in any
purchase order of the Client or elsewhere. They may not be varied except by written
agreement between Trinity Create Limited and the Client.
2 Definitions
In these terms and conditions the following words shall have the meanings given in
this clause:
2.1 ‘Trinity’ means Trinity Create Limited of 85 Great Portland Street, First Floor,
London, England, W1W 7LT.
2.2 ‘Brief’ means either (a) the written brief describing the Deliverables, their intended
use and any pre-set timings for supply, signed by the Client and supplied in advance
of conclusion of the Contract or (b) where no such written brief exists the instructions
provided by the Client to Trinity and Trinity’s written confirmation to the Client of
such instructions shall be regarded as conclusive proof thereof.
2.3 ‘Client’ means the person, firm or company described as such overleaf;
2.4 ‘Contract’ means the agreement whereby Trinity carry out any services instructed
by the Client.
2.5 ‘Deliverables’ means the services and/or materials to be supplied by Trinity under
this contract described in more detail in the Brief
2.6 ‘Job Cost’ means the fee to be charged by Trinity for the Deliverables;
2.7 ‘Project’ means any project for the provision of services (other than under the
terms of Retainer) and which is described in a Proposal;
2.8 ‘Proposal’ means any proposal or quotation provided by Trinity to the Client and
which is agreed between the parties
2.9 ‘Retainer’ a contract under which Trinity agrees to provide ongoing services for a
fixed number of days/hours per month, or a fixed service every month (or at such
other intervals as shall be agreed).
2.10 ‘Rights’ means all copyright and related rights, design rights (whether registered
or unregistered), patents, rights in trade marks (whether registered or unregistered),
database rights and any other intellectual property rights (including all similar or
equivalent rights or forms of protection in any part of the world) in or relating to the
Deliverables, Project or Retainer.
2.11 ‘Services’ such marketing and/or PR services or any other services which the
parties agree that Trinity shall provide the Client ‘
3 Trinity’s obligations
Trinity will use its reasonable care and skill in the production and supply to the Client
of the Deliverables as per the Brief and any other requirements identified overleaf.
4 Charges and Payment
4.1 Where the Services are provided on the basis of a Retainer:
(a) the charges payable shall be calculated in accordance with Trinity’s standard
daily/hourly fee rates, as amended from time to time by Trinity.
4.2 Where the Services are provided as a Project, the total price for the Services shall
be the amount set out in the Proposal/Quote.
4.3 In either case the charges exclude the cost of hotel, subsistence, travelling and
any other ancillary expenses reasonably incurred by the individuals whom Trinity
engages in connection with the Services, and VAT, which Trinity shall add to its
invoices at the appropriate rate.
4.4 Trinity will charge the Client for all third party costs stated in any Proposal/Quote
or as otherwise agreed with the Client. Trinity shall be entitled to retain any rebate or
discount offered by the relevant third party without passing this on to the Client, or
otherwise reserves the right to charge the Client (at its absolute discretion) an uplift
on the amount charged by such third party;
4.5 Charges for Services provided on the basis of a Retainer will be payable monthly
in advance, or as otherwise stated in the Proposal. In the case of Services provided as
a Project, Trinity shall, unless otherwise stated in a Proposal, invoice the Client on
completion of the Project and such invoice is payable in cleared funds within 30 days
of receipt. In either case Trinity reserve the right to require payment in advance of
any Expenses or Third Party Costs, failing which payment for such Expenses and/or
Third Party Costs shall be payable in cleared funds within 30 days of receipt of
invoice.
4.6 Without prejudice to any other right or remedy that it may have, if the Client fails
to pay Trinity on the due date, Trinity may:
(a) charge interest on such sum from the due date for payment at the annual rate of
5% above the base lending rate from time to time of Barclays Bank PLC, accruing on a
daily basis and being compounded quarterly until payment is made, whether before
or after any judgment and Trinity may claim interest under the Late Payment of
Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
4.7 Time for payment shall be of the essence of the Contract.
4.8 All sums payable to Trinity under the Contract shall become due immediately on
its termination, despite any other provision. This clause 8.8 is without prejudice to any
right to claim for interest under the law, or any such right under the Contract.
4.9 Trinity may, without prejudice to any other rights it may have, set off any liability
of the Client to Trinity against any liability of Trinity to the Client.
5 Brief, Deliverables and changes
The Client warrants that the Brief is accurate in all respects. As the Job Cost and any
pre-set dates for supply of the Deliverables will be agreed on the basis of the Brief,
any changes to it after the conclusion of the Contract, whether resulting from
alterations by the Client, delay in providing Trinity with materials, information,
instructions or authorisations, supply of faulty materials to Trinity by the Client, or any
other circumstances beyond Trinity’s control, will be subject to extra charges for
Trinity’s time and work and may involve delays in supply. The Client will pay these
extra charges and reimburse Trinity for any third party charges or expenses incurred
by Trinity on the basis of the original Brief.
6 Production
Unless otherwise agreed in writing Trinity will arrange and oversee all production and
post-production related to the Project. Should it be agreed that the Client arranges
any production work itself, then in that regard Trinity shall not be responsible for the
booking, supervision or quality control of any relevant facilities, nor will it be
responsible for payment of any related charges.
7 Approvals
7.1 Written approval by the Client of final copy, layouts, scripts, storyboards, designs
and the like will be Trinity’s authority to proceed with production or publication as
appropriate.
7.2 Where artwork or other material is sent to the Client for final approval, the Client
shall check it carefully and notify Trinity by email or post of any errors or alterations.
Trinity will use its reasonable endeavours to effect any changes so notified but Trinity
reserves the right to charge extra if any of these alterations either go beyond the
original Brief or are notified to Trinity more than 3 working days after their supply to
the Client. Where notification of errors is either delayed in this way or does not occur
at all before publication, Trinity will not be liable in respect of any such errors. Trinity
will also not be liable in respect of errors occurring where the Client either does not
pay for proofs or mock-ups or oversees the print and production process or does not
allow enough time in the production schedule to check layouts, copy, pagination or
other content aspects. Trinity cannot guarantee that any or all colours will be exactly
replicated in the final version as published.
8 Rights – Standard Licence
8.1 All intellectual property rights in the Deliverables (excluding client materials)
arising in connection with the Contract shall be the property of Trinity and Trinity
shall grant The Client a royalty free standard licence of such intellectual property
rights, coming into effect on payment of the relevant invoice, to use the Deliverables
for the purposes, in the territories and in respect of the products or services defined
in the Brief (but only for such use anticipated by the Brief).
8.2 Such licence shall be automatically terminated if the Client either:
a. does not pay the Job Cost in full by the due date; or
b. (being a company) passes a resolution for winding up (otherwise than for the
purposes of a solvent amalgamation or reconstruction) or a court makes an order to
that effect; or
c. (being a partnership or other unincorporated association) is dissolved or (being a
natural person) dies; or
8.4 becomes or is declared insolvent or convenes a meeting of or makes or proposes
to make any arrangement or composition with its creditors; or
8.5 has a liquidator, receiver, administrator, administrative receiver, manager, trustee
or similar officer appointed over any of its assets; or
8.6 ceases, or threatens to cease, to carry on its business.
9. Standard Licence Terms
9.1 If the Client wishes to use the Deliverables in ways going beyond the parameters
in the Brief and/or overleaf, it must approach Trinity for prior written consent.
9.2 In so far as use of the Deliverables as per the Contract involves use of third party
material, Trinity will use every endeavour to secure such licence as is necessary to
allow the required use of the same but only the extent required by the Brief and any
use thereof outwith the Brief shall be at the Client’s wish and the Client shall
indemnify Trinity in respect of any claim arising out of such use.
9.3 Subject to the above and to the rights of any third party, ownership of the Rights
shall remain vested in Trinity unless and until any assignment or other disposition of
the Rights is agreed between the parties in writing.
9.4 For the avoidance of doubt, where Trinity makes any presentation to the Client
going beyond the Brief, the Client shall have no right to make use of any material
contained in such presentation unless and until a separate contract is concluded
between the parties.
9.5 Use of the Deliverables as per the Brief may involve the Client in continuing
liability to third parties, for example for royalties, licence fees and performance fees.
Trinity will endeavour to notify the Client of these as soon as practicable during the
production process.
9.6 If, during or after the period of use of the Deliverables envisaged in this Contract,
the Client wishes to use or authorise another to use any cartoon figure, distinctive
device or other part of the Deliverables in ways outside those contemplated in this
Contract, Trinity will not unreasonably withhold its consent for such use but may
make such consent conditional on prior agreement between the parties as to
reasonable fees and/or royalties.
9.7 The Client may only use the Deliverables for those advertising, promotional and
other specified purposes which are Permitted Uses (as defined below). For clarity, the
Client may not use the Deliverables in products for resale, licence or other
distribution, unless (i) the proposed use is allowable under an Extended License which
is available for the Deliverables; or (ii) if the original Deliverables have been
fundamentally modified or transformed sufficiently that it constitutes an original work
entitling the author or artist to copyright protection under applicable law, and where
the primary value of such transformed or derivative work is not recognizable as the
Deliverables nor are the Deliverables capable of being downloaded, extracted or
accessed by a third party as a stand-alone file (satisfaction of these conditions will
constitute the work as a “Permitted Derivative Work” for the purposes of this
Agreement). For example, the Client cannot superficially modify the Deliverables,
print it on a t-shirt, mug, poster, template or other item, and sell it to others for
consumption, reproduction or re-sale. These uses will not be permitted as or
constitute Permitted Derivative Works. If there is any doubt that a work is a Permitted
Derivative Work, the Client should either obtain an Extended License or contact
Trinity for guidance. Any use of the Deliverables that is not a Permitted Use shall
constitute infringement of copyright.
(a) Permitted Uses. Subject to the restrictions described under Prohibited Uses below,
the following are “Permitted Uses” of Deliverables:
advertising and promotional projects, including printed materials, product packaging,
presentations, film and video presentations, commercials, catalogues, brochures,
promotional greeting cards and promotional postcards (ie. not for resale or license);
entertainment applications, such as books and book covers, magazines, newspapers,
editorials, newsletters, and video, broadcast and theatrical presentations;
on-line or electronic publications, including web pages to a maximum of 800 x 600
pixels;
prints, posters (i.e. a hardcopy) and other reproductions for personal use or
promotional purposes specified in (1) above, but not for resale, license or other
distribution; and
any other uses approved in writing by Trinity.
If there is any doubt that a proposed use is a Permitted Use, the client must contact
Trinity for guidance and prior written consent
10. Standard Licence Prohibitions
(a) Prohibited Uses. The Client may not do anything with the Deliverables that is not
expressly permitted in the preceding section or permitted by written agreement of
Trinity. For greater certainty, the following are “Prohibited Uses” and the Client may
not:
use the Deliverables in design template applications intended for resale, whether online
or not, including, without limitation, website templates, Flash templates, business
card templates, electronic greeting card templates, and brochure design templates;
use or display the Deliverables on websites or other venues designed to induce or
involving the sale, licence or other distribution of “on demand” products, including
postcards, mugs, t-shirts, posters and other items (this includes custom designed
websites, as well as sites such as www.vistaprint.co.uk);
incorporate the Deliverables in any product that results in a re-distribution or re-use
of the Deliverables (such as electronic greeting card web sites, web templates and the
like) or is otherwise made available in a manner such that a person can extract or
access or reproduce the Content as an electronic file;
use the Deliverables in a fashion that is considered by Trinity as considered
pornographic, obscene, immoral, infringing, defamatory or libellous in nature, or that
would be reasonably likely to bring any person or property reflected in the
Deliverables into disrepute;
use or display any Deliverables that feature a model or person in a manner that (i)
would lead a reasonable person to think that such person uses or personally
endorses any business, product, service, cause, association or other endeavour; or (ii)
that depicts such person in a potentially sensitive subject matter, including, but not
limited to mental and physical health issues, social issues, sexual or implied sexual
activity or preferences, substance abuse, crime, physical or mental abuse or ailments,
or any other subject matter that would be reasonably likely to be offensive or
unflattering to any person reflected in the Deliverables;
remove any notice of copyright, trade-mark or other proprietary right from any place
where it is on or embedded in the Deliverables;
sub-licence, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the
Deliverables or the rights granted under this Agreement;
post a copy of the Deliverables on a network server or web server for use by other
users;
use or display the in an electronic format that enables it to be downloaded or
distributed via mobile devices or shared in any peer-to-peer or similar file sharing
arrangement;
11. Compliance
It shall be the sole responsibility of the Client to ensure that the Deliverables comply
with all local laws (whether consumer, public or civil), regulations and codes in all
countries in which use is intended as stated in the Contract. It shall also be the
Client’s responsibility to ensure that the Deliverables carry all disclaimers, warnings
and public information which any competent lawyer of the Client in any of the
relevant jurisdictions would advise.
Accordingly the Client agrees to indemnify Trinity or its agents and employees from
any liability, cost, loss, damages award, sum payable by way of settlement or other
expense of any kind (including reasonable legal fees) arising from any claim, demand
or action alleging that the Deliverables or use of them are contrary to any law, code
or regulation in any country.
12. Publicity and examples
Notwithstanding the licence described in clause 8,9 and 10 above or any other
disposition of the Rights agreed between the parties, Trinity shall have a continuing
right to use the Deliverables for the purposes of advertising or otherwise promoting
the Trinity’s work.
The Client shall unless otherwise agreed mark all design work supplied as part of the
Deliverables with the phrase ‘Design by Trinity Create Limited appropriate variants as
agreed) in a suitable place. Trinity reserves the right to request the non-appearance
or removal of this credit in any particular case. The Client shall comply with any such
request within 30 days, but shall not thereby be obliged to make changes to material
already produced or published.
The Client shall, within 28 days after production or publication commences (as
appropriate), provide Trinity with 10 finished printed copies of any production run or
other published material derived from the Deliverables.
13 Expenses
Trinity will, where practicable, endeavour to estimate studio costs and extras such as
couriers and other external services to be used in relation to the Deliverables, but this
will not always be possible. All expenses related to a production, for example couriers,
dubs, stock, print-outs, scans and overtime, will be invoiced by Trinity at cost and the
Client shall pay such invoices within 30 days of the date of the invoice.
Where expenses are likely to be significant, Trinity reserves the right to require the
Client to pay the full amount of the expected expense in advance.
General out-of-pocket expenses incurred in supplying the Deliverables, such as
courier charges, travelling and hotel expenses, will be charged by Trinity at cost and
the Client shall pay the relevant invoices within 30 days of the date of the invoice.
Where extra expenses are incurred, either as a result of alterations to the original
Brief or otherwise at the Client’s request, the Client shall pay such expenses by way of
settlement of the relevant invoices within 30 days of the date of the relevant invoice.
14. Delivery
If the Deliverables include any goods, then delivery of such goods shall be regarded
as occurring when either two business days have elapsed following the day the Client
has been informed that the goods are awaiting collection or, in cases where the
Deliverables include delivery of the goods to the Client, on the day of delivery to the
Client. If the Client is unable to collect the goods as provided for above, then Trinity
shall be entitled to arrange storage and/or transportation for the goods on the
Client’s behalf at the Client’s expense. All charges for such storage, transport and any
insurance shall be payable by the Client forthwith on request.
The Client shall inspect and check the goods immediately on delivery and shall give
Trinity notice in writing by email or post within 3 working days after the day of
delivery as to any alleged defect together with details of the alleged defect. The
Client will permit Trinity to inspect any allegedly defective goods. Failing such notice,
the goods shall be deemed to be in accordance with the Contract and the Client shall
be deemed to have accepted the goods and to be liable to pay for the goods.
The risk in Deliverables shall pass to the Client upon the commencement of supply or
transportation to the Client or, where the Client will not accept supply on the date
required by Trinity, to temporary storage arranged by Trinity
Where either delivery difficulties or other circumstances necessitate Trinity
electronically storing any part of the Deliverables for the Client’s future use, Trinity
reserves the right to levy storage charges and charges for retrieval from storage,
which the Client shall pay within 14 days of the date of the relevant invoice.
15. Trade marks and domain names
If any Deliverables use any trade marks, trading styles or trade names (‘Marks’) owned
by the Client or under its control, it is agreed that Trinity shall have the right to use or
allow use of any such Marks for the purpose of fulfilling Trinity’s obligations under
the Contract. Trinity shall not gain any rights over such Marks by virtue of such use,
but Trinity shall be entitled to use the Marks both during and after the production
and supply of the Deliverables to promote and advertise its own work.
It shall be the Client’s responsibility to ensure that all domain names used in
connection with the Deliverables are wherever practicable properly registered and do
not infringe any third party rights and that any Marks of the Client or any third party
used in the Deliverables, including such Marks as are supplied by Trinity as part of the
Brief, are used in a manner which neither undermines the Client’s rights in its Marks
nor infringes any third party rights.
16 Rejection or cancellation
Unless a rejection fee has been agreed in advance, the Client shall have no right to
terminate the Contract, nor allege breach of Contract, nor seek any cancellation,
reduction or repayment of the Job Cost on the basis of style or composition.
Once the Contract is concluded as provided on these terms and conditions, any
subsequent cancellation by the Client will result in the Client being liable for the full
Job Cost as if the cancellation had not taken place, excluding such committed third
party expenses as Trinity is able to avoid liability for within its existing contractual
commitments to suppliers.
17 Property
Where Deliverables are supplied to the Client on computer disks or other electronic
storage method, then Trinity remains the owner of these storage media and reserves
the right to require immediate return of them. Should any artwork be supplied to the
Client in digital form, the Client may not amend it or otherwise use it for purposes
outside those contemplated by this Contract without Trinity’s express prior written
permission.
18 Client’s Own Media, Personnel and Equipment
The Client shall be responsible for:
the actions of the Client’s Personnel on the Premises;
any and all injury, loss or damage to any person’s equipment or premises caused by
any act or omission of the Client’s Personnel, or as a result of any defect in or
inappropriate specification of the Client’s Equipment or the Client’s own media;
the cost of the hire of any Client’s Equipment;
any costs and expenses incurred by Trinity on behalf of the Client at the Client’s
request; and
any and all loss or damage to the Client’s Equipment (which shall be at the sole risk
of the Client).
19 Retention of Title
19.1 Trinity retains ownership in the Deliverables delivered as against the Client or
any subsequent purchaser thereof until the full Job Cost has been paid.
19.2 If any of the Deliverables is incorporated in or used as material for other goods
before payment to Trinity, the property in the whole of those other goods shall be
and remain with Trinity until payment shall have been received or the other goods
have been sold and all of Trinity’s rights under this agreement in the Deliverables
shall extend to those other goods. Trinity’s right to the Deliverables and/or the other
goods is recognised in this agreement and it is the intention of both parties that
ownership of the Deliverables and/or the other goods shall vest in Trinity.
20 Liability
Nothing in these terms and conditions shall exclude or restrict Trinity’s liability for
death or personal injury resulting from its negligence, liability for fraudulent
misrepresentation or any other liability which cannot be excluded or limited under
applicable law. Subject to this:
20.1 Save to the extent that such liability arises from Trinity’s negligence resulting in
death or personal injury Trinity’s total liability to the Client in contract law or in tort or
otherwise howsoever arising in relation to this Contract is limited to Trinity’s charges
for the Deliverables;
20.2 Trinity shall not be liable in any way in respect of any failure, delay or defect in
the supply or use of the Deliverables caused by the supply or specification by the
Client of unsuitable material or content or by the reproduction of the Deliverables by
a third party; and
20.3 Trinity will not be liable to the Client for economic loss including loss of profits,
business, contracts, revenues, goodwill, production and anticipated savings of any
description howsoever caused and even if foreseeable by Trinity
20.4 All warranties, conditions and other terms implied by statute, common law or
otherwise are hereby excluded from the Contract to the fullest extent permitted by
law.
21 Trinity’s status
Trinity acts in this Contract as a principal and not as agent for the Client and will enter
into all related contracts as principal.
22 Sub-contracting and assignment
Trinity may sub-contract any or all of its rights or obligations under this Contract and
may with the Client’s consent, such consent not to be unreasonably withheld or
delayed, assign the benefit and burden of its rights and obligations under this
Contract to any other entity.
23 Confidential information
Neither party shall divulge any confidential information which is supplied to it about
the other party in the course of this Contract or any pre-Contract discussions, other
than information forming part of the public domain otherwise than through a breach
of this clause or any other obligation of confidence.
24 Termination
Either party may by notice in writing to the other terminate this Contract forthwith
upon the happening of one or more of the following events:
24.1 if the other shall fail to make any payment due under this Contract within 7 days
after the due date, or to remedy any other breach within 30 days after being required
to do so in writing; or
24.2 if the other shall be involved in any of the situations described at clauses 8.2-8.6
above.
24.3 Such termination shall be without prejudice to the parties’ accrued rights and
liabilities, for example, Trinity’s entitlement to payment for work done.
25 Matters beyond Trinity’s reasonable control / Force Majeure
Trinity is not liable for any breach of this Contract caused by matters beyond its
reasonable control including acts of God, fire, lightning, explosion, war, disorder,
flood, industrial disputes (whether or not involving Trinity’s employees), weather of
exceptional severity, unavoidable hardware or software failures, or acts of local or
central government or other authorities.
26 Entire agreement
This Contract is the entire agreement between the parties on the subject matter
contained herein and supersedes all representations, communications and prior
agreements between the parties in that regard.
Each party acknowledges that it has entered into this Contract in reliance only on the
representations, warranties, promises and terms contained or expressly referred to in
this Contract and, save as expressly set out in these terms and conditions, neither
party shall have any liability in respect of any other representation, warranty or
promise unless it was made fraudulently.
27 Third party rights
Unless expressly provided in this Contract, no term of this Contract is enforceable
pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not
a party to it.
28 Service of notices
Notice given under the Contract shall be in writing and can be sent by hand, by post
or by fax.
29 SEVERANCE
29.1 If any provision (or part of a provision) of the Contract is found by any court or
administrative body of competent jurisdiction to be invalid, unenforceable or illegal,
the other provisions will remain in force.
29.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or
legal if some part of it were deleted, that provision will apply with whatever
modification is necessary to make it valid, enforceable and legal.
29.3 The parties agree, in the circumstances referred to in clause 24.1, and if clause
24.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal
provision a valid, enforceable and legal provision which achieves to the greatest
extent possible the same effect as would have been achieved by the invalid or
unenforceable provision.
30 Governing law and jurisdiction
This Contract and any dispute or claim arising out of or in connection with it or its
subject matter shall be governed by and construed in accordance with English law
and each of the parties irrevocably submits to the non-exclusive jurisdiction of the
courts of England and Wales
