Terms & Conditions

PixalPoint Legal Documents

Part A About This Document
Purpose
This document comprises the standard terms and conditions operated by PixalPoint for its supply of services. This document is written to incorporate and be incorporated by the terms stated by the Terms of Service of PixalPoint and is intended to be read in conjunction with those terms of service.

This document includes generic clauses which apply in full to all forms of supply plus additional clauses written to support specific Contract Basis definitions described within the Terms of Service of PixalPoint. Where the Terms of Service cover more than one Contract Basis, the terms applicable to each Contract Basis are incorporated into the entire agreement.

The contract for supply and these terms are agreed and entered into by signing of this Contractual Agreement. Once signed, combined with these terms, this document supersedes all Contract Agreements previously made between the parties and constitutes the entire agreement between the parties specified.

This version of the standard terms, version 1.0, is applicable to all Order Form signed after the 30th November 2016. If the version number on the Order Form is not this version, please refer to the correct version for the standard terms applicable to the order.
Part B Generic Clauses
Definitions
“Order Form”: any order for supply of services signed by the customer as a commitment to purchase incorporated into and with these standard terms.

“Contract Basis”: the basis upon which software, goods and/or services are sold as specified on the Order Form for each item line included on that Order Form including any special terms and support conditions also defined on the Order Form. Clauses 10 onwards cover special terms relevant to the specific contract basis, certain contract basis are covered by more than one section of these terms.

“Confidential Information”: the following information regardless of how it is communicated:
- The pricing of any services performed or to be performed under this contract;
- Trade secrets or know-how;
- Technical data or specifications, commercial information or data or ideas belonging to the person who has communicated the information (or someone with whom it has business relationships) or relating to its/their business or affairs, the release of which could either be damaging to any of them or be advantageous to its/their rivals or to others; and
- Any other information which the person receiving it should realise is confidential when considered in the context of the industry in which the person who has communicated the information is involved.

“IPR”: all intellectual property rights arising by virtue of us or in relation to copyright, database rights, patents, trade-marks (registered or unregistered), applications for any of the foregoing, trade secrets and know-how and any other similar rights in any country.

“Subsidiary” and “Division”: has the meaning ascribed by sections 736 and 736A of the Companies Act 1985.

“You” and “your”: the customer referred to on a signed Order Form.

“We” and “Us”: PixalPoint, or a Division thereof, its employees, sub-contractors and agents.
Interpretations
The clause headings in this contract are for ease of reference only and are not intended to influence its meaning.

Any phrase that starts with ‘including’, ‘in particular’, ‘for example’, ‘e.g.’, ‘such as’ or any similar expression is just giving examples and is not a complete list.

Where the terms and conditions on the Order Form, described under “Special Terms”, “Additional Purchase” restrictions and/or “Other Conditions” conflict with these standard terms, the terms specified on the Order Form with prevail.

A reference to a statute (or a section of a statute) shall include any modifications or re-enactment in force from time to time and any statutory instrument or regulations made under the relevant statute.

Companies shall be considered to be in a group if one is a Subsidiary or Division of the other or bothSubsidiaries or Divisions of a third company.
Data Protection
Where we process personal data as a data processor on your behalf as part of the provision of services under the contract, we will:
- Act only on your instructions as the data controller;
- Comply with your instructions in relation to the processing of the personal data; and
- Take all appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

We will comply with any information notice you serve on us asking us to provide you with such information as you may reasonably require relating to our compliance with our obligations under clause 4.1.

You agree that your responsibilities in relation to personal data in respect of which we are the data controller are equivalent to those imposed on us by clauses 4.1 and 4.2.
Confidential Information
We shall maintain the confidentiality of your Confidential Information and shall not use or disclose any of it without prior written consent except as referred to in clause 5.2 or where it is necessary to fulfil our obligations under this contract or where it is required by law.

We will only disclose your Confidential Information to our group of companies and to those of our officers, staff and professional advisors who need it in order to fulfil this contract or to give professional advice.

You agree that your responsibilities in respect of our Confidential Information are equivalent to those imposed on us by clauses 5.1 and 5.2.

Clauses 5.1, 5.2 and 5.3 will still apply after this contract ends, except to information which has lost its necessary quality of confidence other than as a result of a breach of clauses 5.1, 5.2 or 5.3 or a disclosure made by someone else in breach of any other obligation of confidence.

You agree that we may name you as a customer in a general context. Subject to your prior approval of the wording to be used (such approval not to be unreasonably withheld or delayed), you also agree that we may use your name in publicity material (such as white papers) which makes reference to you as a user of such products or services. You also agree to accept up to three reference site visits per year from prospective customers of ours.
No Poaching
While this contract is in force and for a period of six months after it has come to an end, you will not, directly or indirectly, seek to employ or otherwise engage the services of any of our representatives, whether they are staff employees or sub-contractors, who have been involved in the performance of this contract during the preceding 6 month period. Any waiver of this prohibition will only be effective if it is made in writing and signed by one of our authorised representatives and once payment has been made by you to us of a sum equal to three months’ basic salary for the relevant member of staff, or 60 times the sub-contract day-rate for sub-contractors, at the rate we are paying them at the time the waiver is signed, or were paying when they left our employ. This is considered by you and by us to be a genuine pre-estimate of the loss we would suffer in these circumstances.

We agree that our responsibilities in relation to your staff and sub-contractors are equivalent to those imposed on you by clause 6.1
Limitations of Liability
We accept unlimited liability for:
- Death or personal injury caused by our negligence;
- Any claim based on fraud.

Save with respect to any liability referred to in clause 7.1; under no circumstances shall we be liable for any indirect, incidental, consequential or special loss or damage.

Subject always to clause 7.2 and save as stated in clause 7.1, our aggregate liability for all defaults in respect of any Order Form will not in any event exceed a sum equal to the total fees payable under that Order Form. In this clause, default means any act, statement, omission or negligence on our part in connection with, or in relation to, an Order Form or the relationship established by that Order Form.
Termination
We may terminate provisions of services under a Order Form at any time with immediate effect by giving you written notice if;
- You have committed a material breach of this contract and, in the case of a breach which is capable of being put right, you have failed to remedy that breach within 30 days of receiving from us a written request that you should do so; or
- An order is made or a resolution is passed for your winding-up or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in respect of you; or
- An order is made for the appointment of an administrator to manage your affairs, business and property or documents are filed with a court of competent jurisdiction for an appointment of an administrator of you or notice of intentions to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the insolvency Act 1986); or
- A receiver is appointed of any of your assets or undertaking or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager in respect of you or if any other person takes possession of or sells your assets; or
- You make any arrangement or composition with your creditors or make an application to a court of competent jurisdiction for the protection of your creditors in any way; or
- You cease trade; or
- Anything equivalent to the circumstances described in clause 8.1 happens in a jurisdiction other than England.

You may terminate this contract with immediate effect by giving us written notice if any of the circumstances listed in clause 8.1 apply in respect of us rather than you.

Any work in progress, time and expenses, at our standard rates, incurred by us up to the date of termination will fall due to immediate payment.

Any terms of this contract which are expressly or by implication intended to come into force or continue in effect on or after termination (e.g. clauses 5 and 7) shall come into force or continue in effect as intended.
General
This contract and the Order Form together represent the entire agreement and the understanding between you and us relating to the provision of services; it completely replaces any previous contract or understanding between you and us on that subject. Subject to clause 7.1, you acknowledge that in entering into this contact you have not relied on any representation or statement (written or oral) made by any person other than those actually set out on the Order Form and in this contract. You also acknowledge that, in respect of the representations and statements which are actually set out herein, your only remedy shall be for breach of contract under the terms of this contract.

You agree that you are responsible for ensuring the accuracy of the terms and detailed content of the order which becomes binding once submitted. Should you request a change or the correction of any error after submitting the order, you will be liable to cover those costs in full. We will notify you of any potential costs upon receipt of the instructions to change the order.

You acknowledge that all advice, instructions or recommendations made by us as part of the sale process was dependent on the information you have provided to us.

The terms of this contract have been agreed between us in place of all warranties, conditions, undertakings, terms and obligations concerning the subject matter of this contract which might have applied were it not for this clause.

No variation of this contract shall be valid unless it is in writing, it clearly states that it varies this contract and it is signed by authorised representatives of both parties. In particular, your standard purchase order terms from time to time shall be of no effect.

A failure to exercise or a delay in exercising any right or remedy provided by this contract or by law shall not amount to a waiver of that right or remedy.

If any effective waiver is made, however, that waiver shall not amount to a waiver in respect of any other breach. If any term of this contract is or becomes invalid or unenforceable, that invalidity or unenforceability shall not affect the other terms of this contract which shall remain in full force and effect.

If any term of this contract is or becomes invalid or unenforceable but would be valid or enforceable if some part of it were deleted, the term in question shall apply with such modifications as may be necessary to make it valid or enforceable.

No delay, failure or default in performing any obligation under this contract shall amount to a breach of contract if it arises from causes beyond the reasonable control of the person whose performance is affected. However, nothing in this clause will excuse you from any payment obligations.

All notices which must be given under this contract must be in writing and must be sent to our/your then current registered office. Any notice must be delivered personally or sent by first class pre-paid recorded delivery. It will be deemed to have been served, at the time of delivery if delivered personally, or two days after posting if sent by first class pre-paid recorded delivery.

It is only you and us who shall be entitled to enforce this contract. No other person shall have any right under the contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this contract.

You may not transfer or hold in trust any of your rights or obligations under this contract.

This contract shall be governed by the interpreted in accordance to English law. We both agree that only the English courts shall have jurisdiction in relation to any claim or matter arising under or in connection with this contract or the legal relationship established between you and us by this contract and we each agree that we shall not be entitled to change this decision giving jurisdiction to the English courts.
Part C Services Clauses
Services Applicability
The clauses under this section are applicable to Order Form items there the contract basis is either “Services”, “Fixed Price”, “Rate Card”, “Training” or “Support”.
Duties
We will:
- Provide our services in accordance with the terms of the relevant Order Form, it being agreed that dates and timelines given in the Order Form are estimated only;
- Provide personnel who have the required skill and expertise to provide the services;
- Provide the services in a professional manner and conform to the standards generally observed in the industry for similar services;
- Provide the services at such locations within the UK as you may reasonably require; and
- Ensure that our staff and sub-contractors comply with all lawful and reasonable instructions which you may give them relating to health and safety, security and similar regulations applicable at premises owned or controlled by you.

You will:
- Observe all requirements imposed on you by any Order Form;
- Ensure that your staff co-operate fully with our staff;
- Supply our personnel with information and documents that they reasonably request;
- Make available to our personnel such office and administration facilities as are reasonably necessary for the proper performance of the services while they are working at premises owned and controlled by you;
- Ensure that our personnel are made aware of all health and safety, security and similar regulations applicable at such premises;
- Ensure that adequate security and virus checking procedures are in place in relation to any computer and/or network facilities which our personnel are provided to access;
- Arrange the timely and competent input of third parties where, in our reasonable opinion, this is required in order to assist the resolution of a problem affecting the provision of the services;
- Obtain all third party consents, licenses and rights required in order to allow us to perform the services required by the Order Form in relation to software not supplied by us;
- At all times remain responsible for system administration, security, back-ups, restores and recovery actions, where we have no Order Form to perform these roles.

If you fail to perform any of your duties, we will not be responsible for any delays, costs increase or other consequences arising from that failure.
Fees and Expenses
Fees will be calculated in accordance with the rates specified in the Order Form, supported by approved time records if required and invoiced monthly in arrears unless specified otherwise. Rates quoted are for work at our offices or at your site only. Work at other locations will be subject to reasonable travel and expenses.

Where rates are quoted on a daily basis, these day rates refer to our standard working hours which are Monday to Friday 9am to 5pm with thirty minutes allowed for lunch. For locations other than our offices or your site, we reserve the right to discount travel time from the standard day. For day rated orders, the minimum time that may be charged is 1 hour of one day.

Where you request works to be carried out on a weekday but out-of-hours, defined as any time between 5:01pm and 8:59am Monday to Sunday, an increase of 100% above our daily basis rate is applied.

Invoices will be presented in both hard copy and electronic form on the day of supply of services. Payment of fees and expenses is due as specified in the Order Form in the currency stated on the invoices. Where the invoice amount is subject to dispute, you must inform us within 14 days and pay any undisputed portion with that period. We will promptly review the invoice dispute and reply within 14 days with our response.

The prices quoted within the Order Form are fixed prices during the dates specified on this contract agreement and are exclusive of any VAT and/or other applicable purchase taxes.
Use of Subcontractors
We may sub-contract aspects of the services to third party companies at our discretion providing always that we retain full responsibility for delivery as though the work was performed by our own staff. We will ensure that subcontractors execute agreements that bind them to the generic clauses stated herein.

You may be bound by the same non-poaching conditions (clauses 6.1 and 6.2) towards our subcontractors as towards our staff.
IPR
All IPR created by our staff in the course of provision of services by us under this contract shall belong to us or our licensors.
Acceptance
All services and/or other deliverables generated by us under this contract shall automatically bedeemed to be complete and have been accepted by you 30 days after delivery unless we have received prior notification from you of defects or short-falls in the delivery of the services.
Early Termination
You may terminate all or part of the services at any time by providing us with one months’ notice of that aspect of the services.

Where the services are being provided on a fixed price basis, the next stage of payment, or full amount in the even that stage payments are not being applies, will become immediately due.

We will provide deliveries of the maximum value from the work we have completed up to the date of termination on a best endeavours only basis where partial delivery or hand-over to your staff is possible.

In the event of early termination under this clause, clause 8.4 applies.

In the event of early termination, an early termination fee is applicable at the rate indicated:
- Where you terminate the supply of services within 4 weeks of the delivery date, full payment may be taken;
- Where you terminate the supply of services 4 weeks or greater of the delivery date, partial payment and administration fees may be taken.