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.
Confidential Information: 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.