TERMS AND CONDITIONS OF CONTRACT
PIXEL IMAGE LIMITED
1. Basis of contract
1.1 The Quotation constitutes an offer by Pixel to supply the Services to the Customer in accordance with these Conditions.
1.2 The Quotation shall be accepted when the Customer returns a signed copy of the Quotation or otherwise confirms its acceptance in writing, at which point and on which date the Contract shall come into existence (“Commencement Date”).
1.3 Any samples, demonstrations, drawings, imagery, video footage, descriptive matter or advertising issued by Pixel, and any descriptions or illustrations contained in promotional materials produced by Pixel or represented online, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
1.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
1.5 Any quotation given by Pixel shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2. Services
2.1 Subject to the Customer complying with Clause 8 (Customer Obligations), Pixel shall during the Term, provide the Services and make available the Software, Documentation and Pixel Content to the Customer on and subject to the terms of the Contract.
2.2 Pixel shall use reasonable endeavours to meet the performance dates agreed in writing between the parties, but any such dates shall be estimates only, and time shall not be of the essence in the Contract.
2.3 Subject to the Customer complying with Clause 8 (Customer Obligations), the Software shall incorporate the Pixel Content and Customer Content and shall be made available to the Customer in accordance with the Documentation.
2.4 Software Review Period
2.4.1 The Customer shall review the Software within the Software Review Period to confirm that it:
2.4.1.1 functions in material conformance with the applicable portion of the Documentation; and
2.4.1.2 incorporates the Pixel Content and Customer Content in accordance with any specification set out in the Quotation, to its reasonable satisfaction.
2.4.2 If the Software does not meet the criteria in Clause 2.4.1, the Customer shall give Pixel a detailed description of any such non-conformance (“Error”), in writing, within the Software Review Period.
2.4.3 Pixel shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, make available to the Customer the corrected Software. The provisions of this Clause 2.4.3 shall then apply again, up to five additional times. If Pixel is unable to correct such Error, to the satisfaction of the Customer, acting reasonably, after five attempts, either party may terminate the Contract subject to the provisions of Clause 14.
2.4.4 If the Customer does not identify any Errors within the Software Review Period or confirms that the Software meets the criteria in Clause 2.4.1 or incorporates into its website or otherwise uses or enables third parties to use the Software, the Software shall be deemed accepted.
2.5 Availability
2.6 After the Software has been accepted in accordance with Clause 2.4.4, where Pixel is providing Services, Pixel shall use reasonable endeavours to make the Services available in accordance with the Documentation 24 hours a day, seven days a week during the Term, except for:
2.6.1 planned maintenance carried out during the maintenance window of 2200 to 0200 UK time; and
2.6.2 unscheduled maintenance performed outside Normal Business Hours or during Normal Business Hours if so requested by the Customer.
2.7 Support Services
Pixel will in consideration of the Support Fees, provide the Customer with the Support Services during Normal Business Hours.
3. Licence
3.1 Subject to the Customer paying the Charge and the Conditions of the Contract, Pixel hereby grants to the Customer during the Term:
3.1.1 a non-exclusive, non-transferable right, to use the Software, Pixel Content and the Documentation for the purpose of receiving the Services and using the Software for the Purpose; and
3.1.2 a non-exclusive, non-transferable right to incorporate and integrate the Software and Pixel Content into such websites as are agreed in advance between the parties for the purpose of receiving the Services and using the Software for the Purpose.
3.2 The licence granted under Clause 3.1 is personal to the Customer. However the Customer may grant to End Users the right to use the Software, to the extent it has been integrated into the Customer’s website(s), in accordance with the Purpose, in order for End Users to use the Software when interacting with the Customer’s website.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
3.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
3.3.2 facilitates illegal activity;
3.3.3 depicts sexually explicit images;
3.3.4 promotes unlawful violence;
3.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
3.3.6 is otherwise illegal or causes damage or injury to any person or property;
Pixel reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
3.4 The Customer shall not (nor shall it instruct or facilitate any third party to do the same):
3.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
3.4.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
3.4.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or
3.4.2 access all or any part of the Software and Documentation in order to build a product or service which competes with or replicates the Software and/or the Documentation; or
3.4.3 subject to Clause 3.2, license, sell, rent, lease, transfer, assign, distribute or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party, or
3.4.4 attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under the Contract; or
3.5 The Customer shall be responsible for any use of its access accounts. The Customer shall:
3.5.1 take reasonable steps to prevent any unauthorised access to, or use of, the Software and/or the Documentation; and
3.5.2 promptly inform Pixel upon becoming aware of any unauthorised access or use of the Software and/or Documentation.
4. Customer Content
4.1 The Customer shall own all right, title and interest in and to all of the Customer Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Content. The Customer grants Pixel and its subcontractors a non-exclusive, royalty free licence to use, modify and distribute the Customer Content for the purposes of providing Software and the Services.
4.2 Pixel shall follow the archiving procedures for any Customer Content as set out in the Documentation, as may be amended by Pixel in its sole discretion from time to time. In the event of any loss or damage to Customer Content in data form, the Customer’s sole and exclusive remedy against Pixel shall be for Pixel to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of such data maintained by Pixel in accordance with the archiving procedure described in the Documentation. Pixel shall not be responsible for any loss, destruction, alteration or disclosure of Customer Content caused by any third party.
5. Pixel Content
5.1 Pixel shall own all right, title and interest in and to all of the Pixel Content. Pixel grants the Customer a non-exclusive, royalty free licence to use the Pixel Content for the purposes of use of the Software and the Services.
6. Data Protection
6.1 For the purposes of Data Protection Law, the parties acknowledge that the Customer is the controller, and Pixel is a processor, in relation to the processing of any personal data relating t“o End Users or other users of the Services (“Disclosed Data”) by Pixel in connection with the provision of the Services.
6.2 The Customer shall comply with its obligations under Data Protection Law in relation to the processing of Disclosed Data by Pixel.
6.3 Pixel will:
6.3.1 will process the Disclosed Data for the purposes of providing the Services, and subject to the Customer’s express written instructions from time to time. If Pixel considers that any instruction from the Customer contravenes Data Protection Law, it shall inform the Customer, giving reasonable details
6.3.2 ensure that the Disclosed Data is Processed only by employees, contractors or other personnel that are subject to an appropriate duty of confidentiality;
6.3.3 in accordance with its obligations under Data Protection law, implement appropriate technical and organisational security measures in processing the Disclosed Data;
6.3.4 not make any change to its sub-processors without first providing the Customer with a reasonable period of time within which to object. For the purposes of this Clause 6.3.4, the Customer acknowledges that as at the Commencement Date Pixel uses (or intends to use) the sub-processors set out or referenced in the Quotation;
6.3.5 at the Customer’s cost and expense, and taking into account the nature of the processing and information available to Pixel:
6.3.5.1 insofar as is reasonably possible, assist the Customer in responding to requests by data subjects to exercise their rights under Data Protection Law;
6.3.5.2 assist the Customer in complying with its obligations under Data Protection Law in relation to information security and in carrying out data protection impact assessments;
6.3.5.3 except to the extent that Pixel is required by law to retain any copies of any Disclosed Data, upon the expiry or termination of this Agreementthe Services will deliver to the Customer or destroy and/or permanently delete from its information technology systems all copies of any Disclosed Data in its possession
6.3.5.4 provide such information and assistance as is necessary to demonstrate Pixel’s compliance with its obligations in relation to the processing of the Disclosed Data.
6.4 The Customer acknowledges that Pixel shall not be in breach of any of its obligations under the Contract to the extent that Pixel is delayed or hindered in performance as a consequence of complying with a request or instruction from the Customer under this Clause 5.
6.5 Pixel shall inform the Customer without undue delay upon becoming aware of any personal data breach in relation to the Disclosed Data.
7. Pixel’s obligations
7.1 Pixel undertakes that the Services will be performed and Pixel Content suppliedr substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by:
7.2.1 use of the Software contrary to Pixel’s instructions or the Documentation;
7.2.2 modification or alteration of the Software by any party other than Pixel or Pixel’s duly authorised contractors or agents;
7.2.3 failure by the Customer to provide the Customer Content;
7.2.4 failure by the Customer to comply with its obligations under Clause 7.1.6.
7.2.5 failure by the Customer to provide the Customer Content in the format specified in the Documentation; or
7.2.6 provision of Customer Content that is materially inaccurate or incomplete.
7.3 Save in respect of Errors and the process for rectifying Errors in the Software Review Period, if the Software or Pixel Content does not conform with the undertaking at Clause 7.1, Pixel will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance, if possible. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out at Clause 7.1.
7.4 Pixel:
7.4.1 does not warrant that:
7.4.1.1 the Customer’s use of the Software will be uninterrupted or error-free;
7.4.1.2 that the Software, Services or Documentation will meet the Customer’s requirements or be sufficient for the Purpose; or
7.4.1.3 the Software will be free from Vulnerabilities; and
7.4.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.5 The Contract shall not prevent Pixel from entering into agreements with third parties to licence the Software and/or supply the Services, or from independently developing, using, selling or licensing alternative documentation, software, products and/or services which are similar or identical to those provided under the Contract.
7.6 Pixel warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.
8. Customer’s obligations
8.1 The Customer shall:
8.1.1 provide Pixel with:
8.1.1.1 all necessary co-operation in relation to the Contract; and
8.1.1.2 all Customer Content and necessary access to such information as may be required by Pixel in such format as specified in the Documentation;
8.1.1.3 all necessary support in order to incorporate the Customer Content to the Software and Pixel Content (as applicable); and
8.1.1.4 all necessary technical support in order to integrate the Software with the Customer’s website(s).
in order to provide the Services;
8.1.2 without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
8.1.3 carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Pixel may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the End Users, its employees, contractors and agents use the Software and the Documentation in accordance with these Conditions and shall be responsible for any breach of the Contract;
8.1.5 obtain and maintain all necessary licences, consents, and permissions necessary for Pixel, its contractors and agents to perform their obligations under the Contract, including without limitation the performance of the Services and the use of the Customer Content;
8.1.6 ensure that its network, hardware and systems comply with the relevant specifications provided by Pixel from time to time; and
8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, commissioning, installing, maintaining and securing its network connections and telecommunications links from its systems to Pixel’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 If Pixel’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation a (“Customer Default”):
8.2.1 without limiting or affecting any other right or remedy available to it, Pixel shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Pixel’s performance of any of its obligations. The Customer shall promptly reimburse Pixel for any additional costs or expenses incurred by Pixel as a consequence of the Customer Default;
8.2.2 Pixel shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Pixel’s failure or delay to perform any of its obligations as set out in this Clause 8; and
8.2.3 the Customer shall reimburse Pixel on written demand for any costs or losses sustained or incurred by Pixel arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The Customer shall pay the Charges to Pixel in accordance with this Clause 98.
9.2 If Pixel has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Pixel:
9.2.1 Pixel may, without liability to the Customer, withdraw the Customer’s access to the Software, or suspend the licence granted under Clause 3, and Pixel shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.2.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Bank of Scotland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.3 All amounts and fees stated or referred to in the Contract:
9.3.1 shall be payable in pounds sterling;
9.3.2 are non-cancellable and non-refundable;
9.3.3 are exclusive of value added tax, which shall be added to Pixel’s invoice(s) at the appropriate rate.
9.4 Pixel reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date by giving the Customer not less than 30 days’ notice in writing of the changein line with the percentage increase in the Retail Prices Index (All Items) (or any replacement index) in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index (All Items).
10. Intellectual property rights
10.1 The Customer acknowledges and agrees that Pixel and/or its licensors own all Intellectual Property Rights in the Pixel Content, Software and the Documentation and arising from the Services (in each case other than any Intellectual Property Rights in the Customer Content). Other than as expressly stated herein, the Contract does not grant the Customer any rights to any Intellectual Property Rights in respect of the Software, the Services or the Documentation.
10.2 Pixel confirms that it has all the rights in relation to the Software, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.
All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in Customer Content) shall be owned by Pixel.
11. Confidentiality
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
11.2 Subject to Clause 11.410.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation or performance of the Contract.
11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Contract.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.410.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Customer acknowledges that details of the Services, the results of any performance tests of the Services, data regarding use of the Software and Services by End Users and analysis or trends identified by Pixel from use of the Software and Services by the Customer and End Users, constitute Pixel’s Confidential Information.
11.6 The Customer agrees that Pixel may list the Customer as a customer of Pixel in relation to the project described in the Quotation.
11.7 The provisions of this Clause 11 shall survive termination of the Contract, however arising.
12. Indemnity
12.1 The Customer shall defend, indemnify and hold harmless Pixel against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Pixel’s use of the Customer Content in accordance with the Contract, the Pixel Content to the extent concerning the incorporation of the Customer Content or Customer’s use of the Software, the Pixel Content, the Services and/or the Documentation, provided that:
12.1.1 the Customer is given prompt notice of any such claim;
12.1.2 Pixel provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 Pixel shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Software, Pixel Content, Services or Documentation in accordance with the Contract infringes any third-party Intellectual Property Rights and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
12.2.1 Pixel is given prompt notice of any such claim;
12.2.2 the Customer provides reasonable co-operation to Pixel in the defence and settlement of such claim, at Pixel’s expense; and
12.2.3 Pixel is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Pixel may procure the right for the Customer to continue using the Pixel Content, Software, Services and Documentation replace or modify the same so that they become non-infringing or, if such remedies are not reasonably available, terminate the Contract on [2] Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Pixel, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.4.1 a modification of the Pixel Content, Software, Services or Documentation by anyone other than Pixel; or
12.4.2 the Customer or any End User’s use of the Software, Services or Documentation in a manner contrary to the instructions given to the Customer by Pixel;
12.4.3 the Customer’s use of the Software, Services or Documentation after notice of the alleged or actual infringement from Pixel or any appropriate authority; or
12.4.4 the use of the Customer Content.
12.5 The foregoing and Clause 13.3.2 state the Customer’s sole and exclusive rights and remedies, and Pixel’s (including Pixel’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of Intellectual Property Rights or right of confidentiality.
13. Limitation of liability
13.1 Except as expressly and specifically provided in the Contract:
13.1.1 the Customer assumes sole responsibility for
13.1.1.1 the Customer Content and any instructions or input made by or on behalf of the Customer when using the Software;
13.1.1.2 the accuracy and results obtained from the use of the Services, Software and Documentation by the Customer and End Users, and for any and all conclusions drawn from such use by the Customer and End Users;
13.1.1.3 ensuring that its use of the Software and any information provided to End Users using the Software is accurate and complies with all applicable laws and regulations, including consumer protection laws and trading standards;
13.1.2 Pixel shall have no liability for:
13.1.2.1 any loss or damage caused by errors or omissions in any Customer Content, information, instructions or scripts or 3D models provided to Pixel by the Customer (or by a third party on the Customer’s behalf) in connection with the Software or Services, such material shall be used by Pixel on an ‘as is’ basis;
13.1.2.2 any loss or damage caused by errors or omissions in any Pixel Content; or
13.1.2.3 any actions taken by Pixel at the Customer’s direction;
13.1.3 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and
13.1.4 the Pixel Content, Software, Services and Documentation are provided to the Customer on an “as is” basis.
13.2 Nothing in the Contract excludes the liability of Pixel:
13.2.1 for death or personal injury caused by Pixel’s negligence; or
13.2.2 for fraud or fraudulent misrepresentation.
13.3 Subject to Clause 13.1 and Clause 13.2:
13.3.1 Pixel shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and
13.3.2 Pixel’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to a sum equal to the total Charges paid or payable under the Quotation.
14. Term and termination
14.1 The Contract shall, commence on the Commencement Date and shall continue for the period of time specified in the Quotation (the “Term”) unless:
14.1.1 the Term is extended by agreement in writing between the parties not less than 30 days prior to the expiry of the Term; or
14.1.2 terminated in accordance with the Conditions of the Contract.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.2.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
14.2.2 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
14.2.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
14.2.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
14.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
14.2.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 14.2.4 to Clause 14.2.10 (inclusive); or
14.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
14.3 Without affecting any other right or remedy available to it, Pixel may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer undergoes a change of Control.
14.4 On termination of the Contract for any reason:
14.4.1 all licences granted under the Contract shall immediately terminate and the Customer shall immediately cease all use of the Software, Services and Documentation;
14.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
14.4.3 Pixel may destroy or otherwise dispose of any of the Customer Content in its possession unless Pixel receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Content. Pixel shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Pixel in returning or disposing of Customer Content; and
14.4.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.4.5 On termination of the Contract by Pixel pursuant to clauses 14.2.2 or 14.2.3, the Customer shall immediately pay to Pixel all of Pixel’s outstanding unpaid invoices and interest and, in respect of the Services supplied (or work otherwise performed or costs incurred by Pixel) but for which no invoice has been submitted, Pixel may submit an invoice, which shall be payable immediately on receipt.
15. Force majeure
15.1 Pixel shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, or from carrying on its business, by strikes or other industrial disputes (whether involving the workforce of Pixel or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic or pandemic or default of suppliers or sub-contractors acts, events, omissions or accidents or any other event beyond its reasonable control, provided that the Customer is promptly informed of such an event and its expected duration.
16. Conflict
16.1 If there is an inconsistency between any of the provisions in these Conditions and the Quotation, these Conditions shall prevail.
17. Variation
17.1 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. Waiver
18.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
19. Rights and remedies
19.1 Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
20. Severance
20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
20.2 If any provision or part-provision of the Contract is deemed deleted under Clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Entire agreement
21.1 The Contract constitutes the entire agreement between the parties and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
21.2 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract. Nothing in this Clause shall limit or exclude any liability for fraud.
22. Assignation
22.1 The Customer shall not, without the prior written consent of Pixel, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. Pixel may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
23. No partnership or agency
23.1 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24. Third party rights
24.1 The Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
25. Notices
25.1 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Quotation, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Quotation.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
26. Governing law.
26.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Scotland.
27. Jurisdiction.
27.1Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
28. Definitions and interpretation
28.1 In these Conditions.
“Business Day” means a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
“Charges” means the price payable for the Services, as set out in the Quotation.
“Commencement Date” shall have the meaning given in Clause 1.2.
“Conditions” means these terms and conditions of Contract as amended from time to time in accordance with Clause 17.
“Confidential Information” means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.5 or Clause 11.6.
“Contract” means the contract between Pixel and the Customer for the supply of Services, comprising the Quotation and these Conditions.
“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
“Customer” means the entity noted in the Quotation as the entity purchasing the Services from Pixel in accordance with the Contract.
“Customer Content” means all text, information, data, models, images, audio or video material, in whatever medium or form, provided by the Customer for the purpose of Pixel delivering the Services and facilitating the Customer’s use of the Services.
“Data Protection Law” means any applicable laws and regulations relating to privacy or data protection.
“Documentation” means the documentation made available to the Customer by Pixel from time to time which sets out a description of the Services and the user instructions for the Services.
“End Users” means users of the Customer’s website(s) or apps.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
“Normal Business Hours” means 0900 to 1730 UK time, each Business Day.
“Pixel” means Pixel Image Limited, a company incorporated and registered in Scotland with company number SC204703 and having its registered office at 15 Queen Street, Edinburgh, Scotland, EH2 1JE.
“Pixel Content” means all text, information, data, images, audio or video material, in whatever medium or form, created by Pixel and provided to the Customer in accordance with the Quotation and Documentation.
“Purpose” means the intended use of the Software by the Customer as set out in the Quotation.
“Quotation” means Pixel’s offer to provide Services to the Customer.
“Services” means the provision by Pixel to the Customer of access to the Software, incorporating the Pixel Content, Customer Content and the Support Services, as set out in the Quotation and Documentation.
“Software” means the online software applications and tools developed or owned by Pixel, as specified in the Quotation , to be provided to the Customer as part of the Services, as more particularly described in the Documentation.
“Software Review Period” means 10 Business Days from the date on which the Software is made available by Pixel to the Customer for review under Clause 2.4.
“Support Fee” the price payable for the Support Services to be provided by Pixel to the Customer in accordance with Clause 2.7, in accordance with Pixel’s current rates.
“Support Services” means the services to be provided by the Pixel to the Customer as set out in the Documentation and the Quotation.
“Term” has the meaning given in Clause 14.1.
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any software, hardware or network, or equipment or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
28.2 Words and phrases defined in Data Protection Law will have the meaning given to those terms in Data Protection Law.
28.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
28.4 Any words following the terms “including” or “include” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
28.5 A reference to “writing” or “written” includes email.
