Terms of Business
1.1. In these Terms:
“Buyer”, “You” means the person, firm or company named in the Order or whose order for the Services is accepted by Pixated Limited (“PL”);
“Buyer Material” means any documents, designs, drawings, specifications, details, picture or any other record of information in any form provided by the Buyer to PL in connection with the Services
“Contract” means the contract for the sale and purchase of the Services;
“PL” means Pixated Limied (registered number 11710884) whose registered office is at 32 Ingestre Road, Birmingham, B28 9EG;
“IPR” include but are not limited to copyrights, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered), database rights and proprietary information rights;
“Licence” means the licence to use the IPR granted pursuant to clause 5.2
“Order” means PL’s sale order to which these Terms are annexed;
“Services” means the services (or any part thereof) which PL is to supply in accordance with these Terms;
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and PL;
“Writing” and any similar expression, includes electronic mail, facsimile transmission and comparable means of communication.
2. Basis of the sale
2.1. PL shall sell and the Buyer shall purchase the Services, in accordance with the Order, subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such order is made or purported to be made, by the Buyer. No terms or conditions endorsed upon, annexed to or enclosed with any enquiry, purchase order or other document of or submitted by the Buyer shall govern the Contract.
2.2. No variation or addition to any of the terms of a Contract and/or these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and PL. Unless otherwise agreed in writing such variations or additions shall only apply to the particular Contract concerned.
2.3. PL’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by PL in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4. Any advice or recommendation given by PL or its employees or agents to the Buyer or its employees or agents as to the application or use of the Services which is not confirmed in Writing by PL is followed or acted upon entirely at the Buyer’s own risk, and accordingly PL shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of order, invoice or other document or information issued by PL shall be subject to correction without any liability on the part of PL.
2.6 From time to time PL may use third party suppliers.
3. Orders and Specifications
3.1. No offer or quotation submitted by PL shall bind PL and such offers or quotations shall serve only as invitations for the Buyer to place an order.
3.2. No order submitted by the Buyer shall be deemed to be accepted by PL unless and until confirmed in Writing by PL’s authorised representative.
3.3. The Buyer warrants:.
3.3.1. the accuracy and suitability of all Buyer Material instruction or advice submitted by the Buyer or by any third party on behalf of the Buyer in relation to the Services at any time;
3.3.2 that it shall at its own expense give PL any necessary Buyer Material within a sufficient time to enable PL to perform the Contract in accordance with its terms.
3.4. Shall indemnify PL against any loss, costs, damages, charges and expenses incurred by PL as a result of the inaccuracy of the Buyer Material, instructions or advice or failure to supply the same within a sufficient time to enable PL to perform the Contract in accordance with its terms.
3.5. The quantity, quality, performance criteria and/or any other description of Services and any specification for them shall be set out in the Order. Unless otherwise agreed in Writing by PL, all specifications and particulars of the Service submitted by PL are approximate only and statements in relation to the same, designs, illustrations or other descriptive matter, whether contained in PL’s website, catalogues, price lists or otherwise shall be regarded as descriptions only and not binding as to detail.
3.6. No order which has been accepted by PL may be cancelled or varied in any way by the Buyer except with the agreement in Writing of PL and on terms that the Buyer shall indemnify PL in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by PL as a result of cancellation or variation.
4. Price of Services
4.1. The price of Services shall be as provided for in the Order. All prices quoted are valid for 30 days only, after which time they may be altered by PL without giving notice to the Buyer.
4.2. PL reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Services to reflect any increase in the cost to PL which is due to any factor beyond the control of PL including but without limitation:
4.2.1. significant increase in the costs of labour, materials or other costs of design and/or manufacture;
4.2.2. any change in delivery dates, designs, quantities or specifications for Service which is requested by the Buyer;
4.2.3. or any delay caused by any instructions of the Buyer or failure of the Buyer to give PL adequate information or instructions;
4.2.4. unexpected or unforeseen complications arising;
4.2.5. the inaccuracy of any Buyer Material; or any other cause attributable to the Buyer.
4.3. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to PL at the prevailing rate from time to time.
4.4. In the event that an Order cannot reasonably be executed by PL due to any factor beyond the control of PL and/or circumstances unknown to PL, PL shall be entitled to alter the order in such manner as to enable the execution thereof and the Buyer shall be liable to PL for any additional costs or expenses incurred.
4.5. All payments for Services are non-refundable if the Service has been undertaken.
5. Licence and Intellectual Property Rights
5.1. The IPR in all designs, drawings, reports, specifications and all other documents prepared by PL in any way relating to the Services shall remain vested inPL.
5.2. In consideration of the payment by the Buyer of the price in accordance with the provisions of clause 6 below, PL grants the Buyer a perpetual non-exclusive and non-transferrable licence to use and reproduce the IPR in all designs, drawings, reports and other documents prepared by PL in any way relating to the Services for any purpose whatsoever excluding imagery. See 5.7.
5.3. Subject to the provisions of clause 5.2, the Contract shall not operate to grant or transfer to the Buyer any IPR in the Services.
5.4. The Buyer warrants that any Buyer Material and its use by PL for the purposes of providing the Service will not infringe the IPR or other rights of any third party and the Buyer shall indemnify PL against all losses, damages, legal fees, costs, expenses or other claims arising from any such infringement.
5.5. Subject to the provisions of clause 5.4, in the event of any claim or action against PL on grounds that the Services infringe the IPR of any person, firm or company PL may if necessary replace or modify the Service concerned or cancel the Contract or part of the Contract without liability.
5.6. The Buyer shall promptly notify PL of any claim or action by a third party concerning infringement of IPR in relation to the Services. In the event of such claim or action, PL shall subject to the provisions of clause 5.4 be entitled to dispute such claim or defend such action, or to take legal action against that third party, or to agree an out of court settlement with that third party and shall be entitled to exercise such powers on behalf of the Buyers subject as may otherwise be agreed by PL in Writing, the Buyer shall refrain from taking any such action and in all cases the Buyer shall give PL its full cooperation.
5.7. Should PL supply a digital copy of its design, the Buyer is not permitted to use imagery supplied within the file for any other use whatsoever other than within the file it is supplied unless agreed in writing and paid for accordingly. This constitutes a change of use and will be charged to the Buyer accordingly. The Buyer agrees to be liable for this change of use. As an example, if a brochure, website or any other design is supplied digitally, the imagery contained within that digital file must not be extracted and used for any other purpose unless that image has been supplied to PL by the Buyer. It must remain integral to the design only. Licence does not pass to the Buyer for any other use of any image unless permission is granted in writing and paid for in full.
5.8. All copyrights belong to PL until the Services have been paid for in full. Any attempt to use material created by PL without full payment is an infringement of this copyright.
6. Terms of payment
6.1. Subject to any special terms agreed in Writing between the Buyer and PL, PL may invoice the Buyer for the price of the Services on an interim monthly basis or at any time after performance of the Services.
6.2. The Buyer shall pay the price of the Services (without any reduction, deduction or setoff) in pounds sterling (GBP) 30 days following the date of PL’s invoice unless otherwise agreed between PL and the Buyer. PL shall be entitled to recover the price, notwithstanding that delivery or performance may not have taken place and the property in the Services has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract and the Buyer shall in no event be entitled to suspend any obligation of payment to PL. Receipts for payment will be issued only upon request.
6.3. If at any time PL should have reasonable cause to doubt the Customer’s credit worthiness, PL may, either before or during its performance of the Contract, require the Buyer to make payment in advance of the whole or part of the price of the Services.
6.4. If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to PL, PL may: cancel the contract or suspend any further performance of Services to the Buyer; and/or
6.4.1. appropriate any payment made by the Buyer to such of the Services or any sums payable as PL may think fit (notwithstanding any purported appropriation by the Buyer); and/or
6.4.2. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the standard rate (a part of a month being treated as a full month for the purpose of calculating interest); and/or
6.4.3. charge the Buyer for the reimbursement of all legal or debt collection costs incurred by PL in and out of Court, such reimbursement to be on a full indemnity basis; and/or
6.4.4. to terminate the Licence.
6.5. All Hosting and Domain Services and Packages must be paid for in advance. Buyer will be automatically charged the Price again before the anniversary date of the Hosting and Domain contract term unless Buyer has cancelled the Hosting and Domain Services in accordance with PL cancellations procedure.
6.6. PL reserves the right to change the Prices and/or nature of its Hosting and Domain Services by giving Buyer notice of those changes. Buyer will be charged the new Price when the Service is automatically renewed at the end of the current term.
6.7. PL reserves the right to suspend Hosting and Domain Services until payment is received in full and all outstanding debt is cleared. Buyer is responsible for all money owed on the account from the time it was established until PL accepts Buyer’s cancellation request.
6.8. If Buyer fails to pay all Prices due, PL reserves the right to interrupt, suspend or cancel the Website, Hosting and Domain Services without notice. Such interruption, suspension or cancellation does not relieve Buyer from paying all Prices which are overdue and payable to PL.
7.1. The Buyer shall be responsible to PL for ensuring that there will be no obstacle on its part which would or may prevent any agreed deadline from being met.
7.2. Any dates quoted for performance of Services are approximate only and shall be subject to the Buyer and/or any relevant third parties acting on behalf of the Buyer performing all necessary acts and/or supplying all necessary Buyer Material and facilities in due time to enable the Order to be executed and the Services delivered. PL shall not be liable for any delay in performance of the Services however caused and time for delivery shall not be of the essence of the Contract unless previously agreed by PL in Writing.
7.3. If PL fails to perform the Services (or any stage) for any reason other than any cause beyond PL’s reasonable control or the Buyer’s fault, and PL is accordingly liable to the Buyer, PL’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Services to replace those not performed over the price of the
8. Website, Domain & Hosting Services
8.1. All Domain renewal and Hosting Services are provided for a 12 month term, unless otherwise stated. The contract will automatically renew on its anniversary date and continue for successive further 12 month periods, unless terminated in accordance with PL Terms & Conditions, Clause 8.3.
8.2. All Domain renewal and Hosting Services require payment in advance. The Contract will automatically renew on its anniversary date and continue for successive further 12 month period only if payment is made in advance of the anniversary date.
8.3. Please be aware that unless Buyer terminates the Services in writing giving a minimum six week notice from the anniversary date, the Services will automatically renew on the anniversary date of the Contract for a successive Contract Term and Buyer will be responsible for a further 12 months. Buyer will be required to pay the full Contract cost.
8.4. If Buyer chooses to terminate the Services any time after the six week notice period from anniversary date of the Contract, Buyer will still be required to pay the Prices for the remaining period of the then current term of the Contract along with the a further 12 month contract.
8.5. PL reserves the right to cancel and/or suspend Websites, Hosting or Domain Services at any time without notice if Buyer breaches our Terms of Business and/or fails to make payment by the anniversary date.
8.6. Buyer agrees that any notice or communications required or permitted to be delivered under this Agreement by PL to Buyer shall be deemed to be agreed, in accordance with the contact information Buyer has provided to PL.
8.7. PL reserves the right to move Buyer’s data to a different server without notice.
8.8. To provide optimal performance on the servers, it is necessary for PL to perform routine maintenance. Such maintenance often requires taking PL servers off-line, typically performed during off-peak hours. PL may require suspension of some of PL Services for short scheduled periods to carry out maintenance or repair to PL Services. PL will notify Buyer of such activities wherever possible.
8.9. It is the mailbox owner’s responsibility to keep his/her password confidential, and to change the password on a regular basis. PL is not responsible for any data losses or security issues due to stolen passwords.
8.10. The Buyer is responsible for backing up their data. PL does not back up data/website and whilst every attempt would be made in the unlikely event of any corruption or hardware failure, PL does not guarantee to be able to replace lost data. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all Service interruptions.
8.11. PL makes no warranties or representations that any Service will be uninterrupted or error-free. Buyer accepts all Services provided hereunder “as is” without warranty of any kind.
9. Warranties and Liability
9.1. Subject to the following provisions PL warrants that the Services will correspond with their specification at the time of delivery and for a period of 12 months from delivery and that any Services will be performed with reasonable skill and care.
9.2. The above warranty is given by PL subject to the following conditions:
9.2.1. PL shall be under no liability for any loss, damage, costs, expenses or other claims:
(a) in respect of any defect in the Services arising from any instructions, advice, Buyer Material or other information supplied by the Buyer or by any third party on behalf of the Buyer which is incomplete, inaccurate, illegible, out of date, out of sequence or in the wrong form, or arising from their non-arrival or any other fault of the Buyer;
(b) in respect of any defect arising from wilful damage, negligence, failure to follow PL’s instructions (whether oral or in Writing), misuse or alteration of the Services without PL’s approval;
(c) under the above warranty (or any other warranty, condition or guarantee) if the total price for the Services has not been paid by the due date for payment;
(d) for any typographical or other inaccuracies in the Services where the Buyer has been given an opportunity to proof read before they are delivered to the Buyer;
(e) for materials not manufactured by PL, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to PL.
9.3. The Buyer is solely responsible for satisfying himself as to the suitability of the Services for any particular purpose and the Buyer relies solely on his/her own skill and judgement and not the Seller’s skill and judgement in determining such suitability.
9.4. PL shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of PL’s obligations in relation to the Services, if the delay or failure was due to any cause beyond PL’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond PL’s reasonable control an Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of PL or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
9.5. IN ANY EVENT, THE LIABILITY OF PL FOR ANY BREACH OR THE AGGREGATE LIABILITY FOR ANY SERIES OF BREACHES UNDER OR IN CONNECTION WITH THE CONTRACT (SAVE IN RESPECT OF DEATH, PERSONAL INJURY OR FRAUDULENT MISREPRESENTATION) SHALL NOT EXCEED THE AMOUNT RECOVERED BY PL FROM ITS INSURERS IN CONNECTION WITH THE PARTICULAR BREACH CONCERNED.
9.6. Subject to these Terms all other warranties, conditions or terms whether made expressly or implied by common law as statute relating to use, quality and/or fitness for purpose are excluded.
9.7. PL will not be liable for any loss of business whatsoever incurred by the Buyer for any cancellation or suspension of the Website, Hosting and Domain services. PL shall not be liable to the Buyer for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of PL, its employees or agents or otherwise) which arise out of or in connection with the supply of Services (including any delay in supplying or any failure to supply the Services in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of PL under or in connection with the Contract shall not exceed the price of the Services. PL will not be liable for any indirect loss, consequential loss, loss of profit, revenue, data or goodwill howsoever arising suffered by the Buyer or for any wasted management time or failure to make anticipated savings or liability the Buyer incurs to any third party arising in any way in connection with this Agreement or otherwise, whether or not such loss has been discussed by the parties pre-contract or for any account for profit, costs or expenses arising from such damage or loss.
9.8. PL shall not be liable for any interruptions to the Website, Hosting and Domain Services or outages arising directly or indirectly from interruptions to the flow of data to or from the internet; changes, updates or repairs to the network or software which it uses as a platform to provide the Services; the effects of the failure or interruption of Services provided by third parties; factors outside of PL’s reasonable control; Buyer’s actions or omissions (including, without limitation, breach of Buyer’s obligations set out in the Agreement) or those of
any third parties; problems with Buyer’s equipment and/or third party equipment; interruptions to the Services requested by the Buyer.
10.1. PL shall be entitled to assign or sub-contract to any third party its rights and/or obligations (as the case may be) arising from any Contract. The Buyer may not assign its rights under the Contract except with the prior written consent of PL:
10.2. A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3. No waiver by PL of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
10.5. The Contracts (Rights of Third Parties) Act 1999 shall not apply in relation to the Contract. 10.6. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.
10.6. PL reserves the right to use any part whatsoever of services produced by PL for PL promotional and marketing purposes. Any permission deemed necessary by the Buyer, from the Buyer is automatically granted the point of Order from the Buyer to PL for its Services. By Requesting goods or Services from PL the Buyer accepts and is bound by the PL Terms of Business.
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