Terms and Conditions

STANDARD TERMS AND CONDITIONS

1.                INTERPRETATION

1.1           In these conditions the following words have the following meanings:-

 

“Client” means the person, firm or company who purchases the services from the Company;

 

“Products” means any product supplied by Trio Marketing; Fax Marketing, Email Marketing, Data Lists, Marketing Design and Consultancy.

 

“Company” means Trio Marketing Ltd;

 

“Contract” means any contract between the Company and the Client for the sale and purchase of Services, incorporating these conditions;

 

“Destination” means the e-mail address, fax number or other reference information used in the Marketing Media;

 

“Network” means the data network operated by British Telecommunications Plc or any other licensed data network operator;

 

“Subject Material” means material to be transmitted and/or received by the Company in the course of the provision of the Services;

 

“Services” means the transmission of the Subject Material via the Marketing Media to the Target Audience or the delivery to the client of the products.

 

“System” means the system operated by the company for the provision of the Services;

 

“Target Audience” means the persons or Destinations to which the Subject Material may be sent.

 

1.2                References to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

 

1.3           In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

 

1.4           In these Conditions headings will not affect the construction of these Conditions.

 

2                APPLICATION OF TERMS

2.1           Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document).

 

2.2           No terms or conditions endorsed upon, delivered with or contained in the Client's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such contract being referred to in the Contract.

 

2.3           These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company.

 

2.4           Each order for Services by the Client from the Company shall be deemed to be an offer by the Client to purchase Services subject to these Conditions.

 

2.5           No order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company performs the Services.

 

2.6           Any quotation is given on the basis that no contract will come into existence until the Company dispatches an acknowledgement of order to the Client as stated in condition 2.5. Quotations are valid for a period of 30 days from the date of quotation, provided that the Company does not withdraw it within such period.

 

3              CLIENT'S OBLIGATIONS

3.1           The Client undertakes and warrants that it shall:

 

3.1.1                       ensure that the terms of its order and any applicable specification are complete and accurate;

 

3.1.2                       if requested by the Company, provide a copy of the Subject Material prior to acceptance of an order on good quality paper of a specification adequate for its purpose;

 

3.1.3                       ensure that the Target audience information provided by the Client is accurate and complete to a material extent, and in any event not less than 75% accuracy;

 

3.1.4                       ensure that the subject Material complies with all statutes, rules, directives, guidelines and any other legal requirements and in accordance with the British Code of Advertising Practice;

 

3.1.5       observe and comply with the regulations and requirements of the Wireless Telegraphy Act 1967, the Telecommunications Act 1984 and all other relevant legislation, statutory instruments or Governmental or Municipal regulations in force from time to time and any directions made hereunder;

 

3.1.6       obtain and pay for all necessary licence's and consents in relation to the use of the Subject Material;

 

3.1.7       not use the Services for any improper, immoral or unlawful purpose;

 

3.1.8       not act or omit to act in any way which may in any manner injure or damage any persons, their reputation, property, the System or the Services; and

 

3.1.9       indemnify and keep indemnified the Company against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising from breach of any of these Conditions or in any manner whatsoever from the transmission or use of the Subject Material.

 

4                COMPANY OBLIGATIONS

4.1           The Company shall use reasonable endeavours to provide and maintain the availability of the Services.

 

4.2           The Company will regularly update the Target Audience list with any prohibited Destinations provided to it.

 

4.3           The Company will comply with the provisions of the Data Protection Act 1998 in the performance of the Services and shall be the Data Processor for the purposes of that act.

 

5                PERFORMANCE

5.1           Unless otherwise agreed in writing by the Company the performance of the Services shall take place at the Company's place of business from time to time.

 

5.2           Any dates specified by the Company for performance of the Services are intended to be an estimate and time for a performance shall not be made of the essence by notice from the Client. If no dates are specified, performance will be within a reasonable time of acceptance of the order.

 

5.3           The Company does not guarantee, warrant or represent that the Services will elicit any response from the Target Audience.

 

5.4           The Company may in its sole discretion refuse to accept any order to transmit any Subject Material, including without limitation any such material which:

 

5.4.1       does not comply in all respects with the Company?s obligations under any law, regulation, directive, guideline or code of practice;

 

5.4.2       differs in any material respect from the Subject Material previously approved by the Company; or

 

5.4.3       the Company considers to be abusive, discriminatory or defamatory in any way.

 

6              NON-PERFORMANCE

6.1           The Report produced by the Company shall be conclusive proof of the performance of the Contract (or any part thereof) unless the Client can provide conclusive written evidence proving the contrary.

 

7                SUSPENSION

7.1           The Company may at any time on the giving of reasonable notice (taking into account the reason for the suspension) suspend the Services, or part thereof, in any of the following circumstances:

 

7.1.1       if the Client breaches any of these Conditions or any other terms of the Contract; or

 

7.1.2       if the quality of the Services or the operation of the System is impaired or otherwise adversely affected by any act or omission of the Client; or

 

7.1.3       a technical failure or matters outside the direct control of the Company which prevents the Company from performing its obligations under the Contract for any reason; or

 

7.1.4       to enable improvements or modifications to be carried out to the System.

 

7.2           The Company shall have the absolute right to:

 

7.2.1       secure the removal from the System of any material or information which it reasonably believes to be in breach of these Conditions or any other terms of the Contract;

 

8                TERMINATION

8.1           The Contract shall automatically terminate without notice if the Company is permanently prevented from performing the Services because of the expiry or termination of any licensing agreement required by the Company or PSTN to provide the Services.

 

8.2           The Company may terminate the Contract at any time by notice if any sum due to the Company remains unpaid seven days after it becomes due.

 

8.3           Either Party may terminate the Contract at any time on written notice if the other party commits an irremediable breach of the Contract.

 

8.4           The termination of the Contract shall be without prejudice to the accrued rights of the either party arising prior to such breach.

 

9                VARIATIONS

9.1           The Company may, upon giving the Client reasonable notice (having regard to the cause of the variation) make amendments, additions or variations to the System or the Services that are either of a minor nature or are reasonably considered by the Company to be appropriate or necessary for the future provision or improvement of the System or the Services.

 

10            PRICE

10.1         Unless otherwise agreed by the Company in writing, the price for the Services shall be the price set out in the Company?s tariff from time to time in force at the Contract date and is exclusive of VAT.

 

10.2         The Client accepts that distribution targets are flexible and agrees to pay for any additional distribution of the Subject Material pro rata at the tariff applicable to the Contract, subject to a maximum payment of 110% of the original Contract price.

 

10.3         In accordance with condition 3.1.3, where Target Group information is supplied by the Client and due to any inaccuracy of such information the Subject Material is transmitted to less than 75% of the Target Audience, the Client undertakes that it shall pay the Company 75% of the price of the Contract notwithstanding the failure to achieve the corresponding level of successful transmissions.

 

11 PAYMENT

11.1         Payment of the price of the Services is due within 30 days of the date of issue of a valid invoice. Time for payment shall be of the essence.

 

11.2         No payment shall be deemed to have been made until the Company has received cleared funds.

 

11.3         All payments payable to the Company under the Contract shall become due immediately on termination of this Contract despite any other provision.

 

11.4         The Client shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Client.

 

11.5         If the Client fails to pay the Company any sum due pursuant to the Contract the Client will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

 

11.6         If the Client wishes to dispute an invoice, they must do so in writing within seven days of the date of such invoice.

 

11.7         The Company may provide a 30 day credit facility to the Client subject to a satisfactory credit check.

 

11.8         The Company reserves the right to refuse an order if the Client has exceeded any agreed credit limit, or if the performance of such order would cause the Client to exceed the agreed credit limit.

 

12            SERVICE

12.1         The Company may on request provide the quality of service report provided by the Network from time to time for its customers generally.

 

12.2         The Target Audience will be identified by the Company with reference to either:

 

12.2.1the descriptors supplied (if any) by the Client; or

 

12.2.2     the information supplied by the Client.

 

13                LIMITATION OF LIABILITY

13.1         The following provisions set out the entire financial liability of the Company (including any acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

 

13.1.1     any breach of these Conditions or other term of the Contract; and

 

13.1.2     any representation, statement, or other act, or omission including negligence arising under or in connection with the Contract.

 

13.2         The Company does not accept liability arising as a result of any inaccuracies in the information contained in its database.

 

13.3         The Company does not accept any liability arising as a result of the inaccuracy of information supplied by the Client or the omission of relevant information by the Client or for any loss due to the content of the Subject Material.

 

13.4         The Company will not be liable for any loss suffered as a result of the Target Group (or part thereof) being inappropriate for the Client?s purposes.

 

13.5         Any liability of the Company for non-performance of the Services shall be limited to performance of the Services within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such non-performed Services.

 

13.6         Subject to the other provisions of these Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the performance of the Services (even if caused by the Company?s negligence), nor will any delay entitle the Client to terminate or rescind the Contract unless such delay exceeds 180 days.

 

13.7         All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

 

13.8         Nothing in these Conditions excludes the liability of the Company for death or personal injury caused by the Company?s negligence or fraudulent misrepresentation.

 

13.9         Subject to conditions 13.7 and 13.8:

 

13.9.1     the Company?s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and

 

13.9.2     the Company shall not be liable to the Client for any indirect or consequential loss or damage (whether for loss of profit, loss of business, loss of data, depletion of goodwill or otherwise, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection the Contract.

 

14                ASSIGNMENT

14.1         The Client shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

 

14.2         The Company may assign the Contract or any part of it to any person, firm or company.

 

15            FORCE MAJEURE

15.1         The Company reserves the right to defer the date of performance or to cancel the Contract or reduce the volume of the Services ordered by the Client (without liability to the Client) if it is prevented or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party?s workforce), or restraints or delays affecting carriers or inability or delays in obtaining adequate supplies of materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Client shall be entitled to give the Company notice in writing to terminate the Contract.

 

16            GENERAL

16.1         Each right or remedy under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

 

16.2         If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, void, or unreasonable, that particular provision will be deemed separate, and the remaining provisions of the Contract and the remainder of such provisions shall continue in full force and effect.

 

16.3         Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

 

16.4         Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Client will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the contract.

 

16.5         The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

 

17                COMMUNICATION

17.1         All communications between the parties about this Contract must be made in writing and delivered by hand or sent by pre-paid first class past or sent by facsimile transmission:

 

17.1.1     (in the case of communications to the Company) to its registered office or such changed address as shall be notified to the Client by the Company; or

 

17.1.2     (in the case of communications to the Client) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Client set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Client.

 

17.2                Communications shall be deemed to have been received:

 

17.2.1     if sent by pre-paid first class post, 2days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);

 

17.2.2     if delivered by hand, on the day of delivery;

 

17.2.3     if sent by facsimile transmission on a working day prior to 4.00 p.m., at the time of transmission or otherwise on the next working day.

 

17.3                Communications addressed to the Company at the normal trading address and marked for the attention of the Operations Director.