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Address, VAT, Risk
Our registered address is held at The Tannery, Kirkstall Road, Leeds, West Yorkshire. LS3 1HS.
Pixel Builders Ltd is a VAT registered organisation under registration number GB 112 9533 32.
Our D-U-N-S® Number is 21-120-6010 and our D&B Risk Indicator as of May 2013 was 1; representing a minimum risk of business failure.
Standard Terms And Conditions
This document serves to confirm the terms and conditions that all contracts/projects delivered by Pixel Builders Ltd ('The Company' whose registered office is at The Tannery, Kirkstall Road, Leeds, West Yorkshire LS3 1HS and whose company registration number is 06597027) are subject to and bound by:
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
the initial approach by the Client to Pixel Builders.
the initial meeting (or series of meetings) or discussion (or series of discussions) between Pixel Builders and the Client at which the scope and details of the services which may be offered by Pixel Builders is discussed.
The detailed proposal document which sets out in broad terms the services which pixel builders will offer to supply to the Client subject to the Terms which may include: Site Design, Site Development, Site Maintenance, and Site Hosting. The proposal may include the proposed costs, the proposed timescales and the assumptions made by Pixel Builders which underlie the proposal. This document is provided separately to this contract.
an acceptance in principle of the Proposal Document.
the Client’s website which is to be designed and or developed and or hosted and or maintained by Pixel Builders pursuant to this agreement.
developing the look and feel of the Site.
developing the coding and software to make the Site operational.
maintaining the content, integrity and function of the Site for the duration of the maintenance period. Excluding bug fixing as covered in section 8.3.
Hosting or arranging for hosting of the Site on Pixel Builders’ servers or on a third party’s servers for the duration of the hosting period.
the services which Pixel Builders will deliver to the client which may include: Site Design, Site Development, Site Maintenance, and Site Hosting in accordance with this agreement as set out in Schedule 1.
A functional description of the Site as set out in Schedule 2.
the timetable within which Pixel Builders will deliver the Services as set out in Schedule 3.
the charges in respect of the Services set out in Schedule 4, together with any charges arising from the Change Control Procedures.
the tests agreed between the Client and Pixel Builders as set out in Schedule 5, or if no tests are defined, such tests as Pixel Builders considers appropriate.
Third Party Products:
the third party software products (Kentico CMS) set out in Schedule 6.
Change Control Procedures:
the procedures set out in Schedule 7.
the Design Agency is Pixel Builders unless otherwise agreed.
the terms and conditions contained in this agreement.
the date of this agreement.
the content provided to Pixel Builders by the Client from time to time for incorporation in the Site.
a computer server administered, owned or used by Pixel Builders
a day other than a Saturday or Sunday or public holiday in England when banks in London are open for business.
Force Majeure Event:
has the meaning given in clause 14.1.
Intellectual Property Rights:
patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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.
1.2 Clause and schedule headings do not affect the interpretation of this agreement.
1.3 References to clauses and schedules are (unless otherwise provided) references to the clauses and schedules of this agreement.
1.4 In the event and to the extent only of any conflict between the clauses and the schedules, the clauses shall prevail.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.8 Any words following the terms including, include, in particular, for example 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.
1.9 References to content include any kind of text, information, image, or audio or video material which can be incorporated in a website for access by a Visitor to that website.
1.10 Writing or written includes email but does not include fax.
2. Scope of the project
Pixel Builders shall deliver the Services to the Client in accordance with the Timetable in consideration for the Charges.
3. Client responsibilities
3.1 The Client acknowledges that Pixel Builders’ ability to deliver the Services in accordance with the Timetable is dependent upon the full and timely co-operation of the Client (which the Client agrees to use all reasonable endeavours to provide).
3.2 The Client shall be responsible for the accuracy and completeness of the Materials.
4. Development and acceptance of site
4.1 During the development process, Pixel Builders shall run the Acceptance Tests.
4.2 The Acceptance Tests shall test whether the Site Specification has been achieved.
4.3 Acceptance of the Site shall occur when the Site has passed the Acceptance Tests. Pixel Builders shall notify the Client when the tests have been passed and provide the results of the Acceptance Tests to the Client in writing.
4.4 If any failure to pass the Acceptance Tests results from a defect which is caused by an act or omission of the Client, or by one of the Client’s sub-contractors or agents for whom Pixel Builders has no responsibility (Non-Pixel Builders Defect), the Site shall be deemed to have passed the Acceptance Tests notwithstanding such Non-Pixel Builders Defect. Pixel Builders shall provide assistance reasonably requested by the Client in remedying any Non-Pixel Builders Defect by supplying additional services or products. The Client shall pay Pixel Builders in full for all such additional services and products at Pixel Builders' then current fees and prices.
4.5 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
a. the Client uses any part of the Site for any revenue-earning purposes or to provide any services to third parties (including allowing access to the site generally by any individual or business not connected to the Client or Pixel Builders or the Design Agency for any purpose other than for test purposes); or
b. the Client unreasonably delays the start of the relevant Acceptance Tests or any retests for a period of seven working days from the date on which Pixel Builders is ready to commence running such Acceptance Tests or retests.
5. Third party products
The Third Party Products shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party Products is included in the Charges payable pursuant to clause 7.1.
6. Project management
6.1 Each party shall appoint a project manager (or authorised point of contact being a named individual) who shall:
a. provide professional and prompt liaison with the other party; and
b. have the necessary expertise and authority to give and receive instructions and to commit the relevant party.
c. provide an email address and a telephone number and regularly check or utilise the same for contact purposes.
6.2 The project managers (or authorised points of contact being named individuals) shall meet or liaise regularly, and as and when required until Acceptance, and thereafter, as and when required. The Client shall provide minutes of any face-to-face meetings to Pixel Builders if requested in writing.
7. Charges and payment
7.1 Pixel Builders shall issue an initial VAT invoice being 30% of the Charges, and thereafter, shall issue monthly VAT invoices in respect of the Charges, and the Client shall pay to Pixel Builders the Charges set out in such Pixel Builders’ invoice within 30 days of the date of Pixel Builders’ invoice.
7.2 All Charges are exclusive of VAT.
7.3 If the Client fails to pay any amount payable by it under this agreement, Pixel Builders shall be entitled, but not obliged, to charge the Client interest on the overdue amount. Such interest shall be payable by the Client forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 8% per annum above the base rate for the time being of Barclays Bank Plc. Such interest shall accrue on a daily basis and be compounded quarterly. Pixel Builders reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.
8.2 Pixel Builders shall deliver the Services with reasonable care and skill.
8.3 Pixel Builders warrants that the Site will perform in accordance with the Site Specification for a period of three months from Acceptance. If the Site does not so perform, Pixel Builders shall, for no additional charge, carry out any work necessary in order to ensure that the Site substantially complies with the Site Specification.
8.4 The warranty set out in clause 8.3 shall not apply to the extent that any failure of the Site to perform substantially in accordance with the Site Specification is caused by any Materials, or non-Pixel Builders’ defects, or default of the Client, or any other cause beyond Pixel Builders’ control.
8.5 This agreement sets out the full extent of Pixel Builders’ obligations and liabilities in respect of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this agreement or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
9. Limitation of remedies and liabilities
9.1 Nothing in this agreement shall operate to exclude or limit Pixel Builders’ liability for:
a. death or personal injury caused by its negligence; or
b. any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
c. fraud; or
d. any other liability which cannot be excluded or limited under applicable law.
9.2 Pixel Builders shall not be liable to the Client for any damage to software, damage to or loss of data, loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
9.3 Subject to clause 9.1, Pixel Builders’ aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with the Services or the Site or this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed 100% of the total Charges payable by the Client to Pixel Builders under this agreement in the current and previous four calendar years.
9.4 Pixel Builders does not provide any type of legal advice. However, Pixel Builders will provide their services detailed in this contract in accordance with the law to the best of their knowledge.
9.5 The Client is advised to seek independent legal advice to ensure that the Site Specification, the Site and or the Services are compliant with all relevant legislation and Pixel Builders shall not be liable to the Client for any direct or indirect or consequential loss or damage, of any nature including fines or other legal sanctions caused by or flowing from any failure to comply with relevant legislation.
10. Intellectual property rights
10.1 All Intellectual Property rights in the Site (including in the content of the Site and the Site software), but excluding the Materials, arising in connection with this agreement shall be the property of Pixel Builders until such time as the charges are paid in full. On payment all Intellectual Property Rights created, whether alone or jointly, by the developer in connection with the Project shall by way of present and future assignment be assigned with full title guarantee to the Client.
10.2 Pixel Builders grants the Client a royalty-free, worldwide, non-exclusive licence to use and modify any methodologies and technologies provided by Pixel Builders.
10.3 Pixel Builders waives any moral rights as defined in sections 77 to 84 of the Copyright, Designs and Patents act 1988 subsisting in any copyright work created for the Client under this Agreement.
10.4 Where the contract is terminated early under Clause 12 the rights as described in 10.1 to 10.3 will apply
subject to the charges for the work done at the date of termination being met in full.
10.5 The Client shall indemnify Pixel Builders against all damages, losses and expenses arising as a result of any action or claim that the Materials infringe the Intellectual Property Rights of a third party.
10.6 Pixel Builders shall indemnify the Client against all damages, losses and expenses arising as a result of any action or claim that the Site infringes any Intellectual Property Rights of a third party, other than infringements referred to in clause 10.1.
10.7 The indemnities in clause 10.5, clause 10.6 and clause 11.4 are subject to the following conditions:
a. the indemnified party promptly notifies the indemnifier in writing of the claim;
b. the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
c. the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
d. the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.
10.8 The indemnities in clause 10.1, clause 10.6, clause 11.4 and clause 11.5 may not be invoked to the extent that the action or claim arises out of the indemnifier’s compliance with any designs, specifications or instructions of the indemnified party.
11. Site content
11.1 Pixel Builders shall (for the duration of this agreement and provided that the Client has agreed to take the Website Maintenance Service and provided that no Charges are outstanding) update the Site with Materials provided from time to time by the Client. The Client shall ensure that the Materials do not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred [or acts of terrorism], menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
11.2 Pixel Builders shall (if agreed and provided that no Charges are outstanding) grant the Client access to the Server in order to update information held on the Site.
11.3 Pixel Builders shall include only Materials on the Site. The Client acknowledges that Pixel Builders has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. Pixel Builders reserves the right to remove content from the Site immediately and without prior notification or authorisation from the Client where it reasonably suspects such content is Inappropriate Content. Pixel Builders shall notify the Client promptly if:
a. it becomes aware of any allegation that any content on the Site may be Inappropriate Content; or
b. it removes any content in accordance with this clause 11.3
11.4 Where the content is controllable by the Client (via the CMS), the Client shall indemnify Pixel Builders against all damages, losses and expenses arising as a result of any action or claim that the Materials constitute Inappropriate Content.
11.5 Pixel Builders may include the statement “Built by Pixel Builders” or similar on the home page of the Site, and the statement may contain a hypertext link to Pixel Builders’ own website.
11.6 The Client shall grant Pixel Builders a licence to use the client’s logo and trade names and shall allow Pixel Builders to link to the Site from Pixel Builder’s own website subject to the Client’s prior consent with such consent not to be unreasonably withheld.
11.7 The Client shall grant Pixel Builders a licence to refer to the Site and this Agreement and to use the client’s logo and trade names for Public Relations, Publicity and Marketing purposes subject to the Client’s prior consent with such consent not to be unreasonably withheld.
12. Term and termination
12.1 This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause 12) terminate automatically on Acceptance of the Site and payment of the Charges and all outstanding sums unless the parties have agreed that Site Maintenance and or Site Hosting is to be provided in which case this agreement shall continue until terminated by either party on one month’s written notice.
12.2 Charges for Site Hosting and Site Maintenance are invoiced in advance at the beginning of each calendar year, calculated as being 365 days (or a multiple thereof) from the Effective Date, and once invoiced, Charges for Site Hosting and Site Maintenance are non-refundable.
12.3 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
a. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
b. the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
c. 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;
d. 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;
e. 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;
f. 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 (being a company);
g. 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;
h. 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;
i. 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;
j. 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 12.3(c) to clause
k. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
l. any warranty given by the other party in clause 8 of this agreement is found to be untrue or misleading.
12.4 On termination of this agreement by Pixel Builders pursuant to clause 12.3, all licences granted by Pixel Builders under this agreement, including any licence granted under clause 10.1, shall terminate immediately.
12.5 On expiry or termination of this agreement otherwise than on termination by Pixel Builders pursuant to clause 12.3, Pixel Builders shall promptly return all Materials to the Client, and shall provide to the Client an electronic copy of the Site (including all content on the Site – namely; a copy of the live site file set, full database and any artwork files in appropriate form (such as PSD)). Pixel Builders shall at its discretion provide such assistance as is reasonably requested by the Client in transferring the hosting of the Site to the Client or to another service provider, subject to the payment of Pixel Builders’ reasonable expenses.
12.6 On expiry or termination of this agreement, all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect and for the sake of clarity, clauses 7, 8, 9, 10, 15, 16, 17, 20, 23, 24, 25, 26 shall continue to binding on the parties.
13. Change control
Any request to change the scope of the Services shall be processed in accordance with the Change Control Procedure.
14. Force majeure
14.1 The definition in this clause applies in this agreement.
Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
14.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
15.1 The definition in this clause applies in this agreement.
all information, whether technical or commercial
(including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
a. identified as confidential at the time of disclosure; or
b. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
15.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
15.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
15.4 The obligations set out in this clause 15 shall not apply to Confidential Information which the receiving party can demonstrate:
a. is or has become publicly known other than through breach of this clause 15; or
b. was in possession of the receiving party prior to disclosure by the other party; or
c. was received by the receiving party from an independent third party who has full right of disclosure; or
d. was independently developed by the receiving party; or
e. was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
15.5 The obligations of confidentiality in this clause 15 shall not be affected by the expiry or termination of this agreement.
15.6 This clause 15 supersedes the terms of any Non-Disclosure or Confidentiality Agreement between Pixel Builders and the Client dated, agreed prior to this agreement which is hereby terminated.
16.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
a. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b. sent by email (with receipt confirmed or acknowledged) to the email address provided by the project manager (or authorised point of contact being a named individual) designated pursuant to clause 6.1 above.
16.2 Any notice shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt;
b. if sent by pre-paid first-class post or other next working day delivery service, at 10 am] on the second Business Day after posting or at the time recorded by the delivery service.
c. if sent by email, on confirmation of receipt or acknowledgment of the email by the receiving party.
16.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause 16.3, "writing" shall not include e-mail.
All media releases, public announcements and public disclosures by either party relating to this agreement or its subject matter, including promotional or marketing material, shall be co-ordinated with the other party and approved jointly by the parties prior to release.
Neither party may assign or transfer any of its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
19. Entire agreement
19.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter and for the sake of clarity, this agreement supersedes and extinguishes the Client Request, Scoping Process, Proposal Document and Approved Proposal, except where such document or documents is or are referred to in a Schedule to this agreement.
19.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
20. Third party rights
20.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
23. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
24.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
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