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Service Agreement

Introduction

This contract (the “Agreement”) is entered into by and between the below-named parties (the “Parties”). Pixify Limited, with its principle business being located at Cumberland House, 80 Scrubs Lane, White City, London NW10 6RF hereinafter referred to as the “Company” and the alternative party, hereinafter referred to as the “Client”.

This agreement becomes effective when the Client engages with the Company with one or more of the following services: Web Design, Search Engine Optimisation (SEO), Web Hosting, Graphic Design, Branding & Identity, Digital Marketing (Paid Socials, Paid Search) and Social Media Management hereinafter referred to as “Services”.

Representations and Authorities

  1. In the event where the Client is engaging with the Company as a non-exclusive agency which shall perform the Services with reasonable care and skill, in accordance with generally recognised commercial practices and standards in the industry; and all laws and regulations applicable to the Services.
  2. The Client authorises the Company to access their online accounts and will provide login in details when needed to perform the Service(s). These accounts may include but are not limited to web hosting, website, advertising, analytics, CRM, ERP or social media accounts.
  3. The Client confirms that any account to which the Company is given access has not been compromised, hacked, defaced or infected prior to the commencement of the Agreement.
  4. The Client warrants that any of their employees or contractors assisting the Company have the necessary skills and authority.
  5. The Client confirms that any text, graphics, photos, designs, codes, data, trademarks and artwork supplied in connection with the Agreement are owned by the Client, or that they have permission from the rightful owner to use these items; the Client grants the Company an irrevocable licence to use these items for the purposes of providing the Service(s) for the duration of the Agreement.
  6. The Client warrants that all the facts, claims and offers given by it about its products or services are accurate and in no way misleading and that the terms of any offers contained therein will be honoured.
  7. The Client warrants that it has not relied on any representations made by or on behalf of the Company save as contained in this Agreement.

The best work comes out of great relationships. Honesty, respect and gratitude are the keys to a great relationship and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust.

Acceptances

The representative of Client has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide the Company with everything needed to complete the Services as, when and in the format requested by the Company.

The Company has the experience and ability to do everything the Company agreed to for Client and will do it all in a professional and timely manner. The Company will endeavour to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.

The Client represents and warrants on a continuing basis that it;

    • Has the right to enter into this Agreement
    • Has the power and authority, corporate and otherwise, to execute and deliver this Agreement and to perform its obligations hereunder, and
    • Has by all necessary corporate action, duly and validly authorised the execution and delivery of this Agreement and the performance of its obligations hereunder.
    • Remains in frequent contact with the Company whereby at least one form of contact through email or telephone is required within a 45-day period. In the event that the Client does not communicate, or the Company fails to establish contact, within a 45-day period, the Project automatically halts and the Company has the right to raise a Reactivation Penalty of £250.00 in order to continue the Project. The project is considered closed after inactivity of 100 days.

Client Ownership

In the event that any such material is considered not to be a “work made for hire,” the Company hereby assigns all ownership (whether represented or not by a registered patent, copyright, trade secret) and other proprietary or rights, title and interest in such deliverables and materials to Client, and agrees to execute such documents as Client may reasonably request, in order to assist Client in obtaining and protecting such rights.

The Company agrees that the Company has no interest in any materials that the Company submits to Client, including, without limitation, any security interest therein, and hereby releases to Client any interest therein (if any) which may be created by operation of law. Except as otherwise agreed to in writing and as necessary in the performance of this Agreement, the Company shall have no rights to license, sell or use the deliverables or materials developed under this Agreement, or any portion thereof.

Payment Terms

Ad hoc

Client understands the importance of paying the Company in a timely manner and wants to maintain a positive working relationship with the Company to keep the project moving forward. Payments for each invoice delivered by the Company to Client are due within 14 days of receipt. In case of overdue payments, the Company reserves the right to stop work until payment is received.

Strategic Partnership (SLA)

Work on a Strategic Partnership basis (or service-level agreement (SLA) maintenance), is a retainer model where a certain amount of the Company’s development team will be reserved for the Client. This enables the Company to respond to support requests swiftly and with a guaranteed response time. It will also keep your system running at optimal levels with regular monitoring. The retainer is flexible and depends on the Client’s needs and anticipated usage providing a great way of reducing the risk of sudden problems affecting the Client’s business. SLA Maintenance works on a monthly subscription and is billed to the Client automatically through our chosen third-party payment provider.

Reimbursements

Client shall reimburse all expenses that are reasonable and that have been authorised in writing by Client in advance; payable within 14 days of itemised invoice.

If a payment is overdue for more than 28 days, the Supplier reserves the right to suspend all Service(s) until payment has been made in full. Interest will be due on any overdue amount at the rate of 2% per annum above the Bank of England base rate at the relevant time.

Services

Web Design & Development Service(s)

    1. The Client hereby authorises the Company to access their account and authorises the web hosting service to provide the Company with “write permission” for the Client’s web page directory, CGI-bin directory, and any other directories or programs which need to be accessed. Accompanying this, the Client authorises the Company to publicise the completed website to Web search engines, as well as other Web directories, indexes and to promote Pixify with a link back located on a visible but unobtrusive section of the website unless otherwise paid to remove.

Search Engine Optimisation Service(s)

    1. The Company aims to maximise the performance of and traffic to the Client’s websites, however, the performance of the Service(s) cannot guarantee specific results. The Supplier has no control over the policies of search engines or directories with respect to the sites and/or content that they accept now or in the future. Any search engine or directory, in their sole discretion, may choose to exclude the Client’s web site(s) or content at any time. The Client accepts that if they independently make changes to their website without the Supplier’s input that they may affect search engine placements; following these independent changes, if additional work is needed to recover ranking position this will be subject to a separate quotation.

Social Media Management Service(s)

    1. The Client recognises that it is not practical for the Company to notify the Client of each posting that it makes on behalf of the Client on any/all social media channels and the Client agrees that this is unnecessary.
    2. The Client may request that the Company makes changes to any content or postings at any time in writing, and the Company may levy reasonable additional charges for such work.
    3. The Company reserves the right to edit or amend any content on any social media channels that it considers to be offensive, unlawful or inappropriate, or which appear to infringe the intellectual property rights of any third party.
    4. The Company shall not be responsible for any errors in any postings or any unsatisfactory Service(s), which are not notified in writing to it, nor for any errors which are approved by or are the fault of the Client or any third party.

Pay-Per-Click (PPC) Advertising Management Services(s)

    1. At all times when delivering the agreed services, the Company will comply in all respects with the British Code of Advertising Practice and all applicable regulations, standards and codes including (but not exhaustively) those of the Advertising Standards Authority, the Law Society of England and Wales, the Compensation (Claims Management Services) Regulations 2006 and any relevant regulations relating to electronic commerce.
    2. The Company shall invoice the Client for the management and/or set up costs. The Client shall be responsible for ensuring that adequate budget is available to carry out the Service(s) and agrees to be billed directly by Google, Bing, Facebook or other advertising providers for their charges.
    3. The Company aims to maximise the interaction with the Client’s website based on agreed goals, however, the performance of the Service(s) does not guarantee specific results.
    4. The Company accepts no responsibility for any detrimental effect on the PPC campaign(s) which results from search engine policies, functionality or service, any activity by the Client or any third party including, but not limited to, fraudulent activity or alterations made to the Client’s website or advertising copy.

Security Service(s)

    1. Where the Service(s) relate to the repair of hacked files or removal of malware the site will be returned in good working order with settings returned to recommended defaults. The Supplier does not guarantee against any future security breach, malware infection or re-infection.

Domain Name Registration / SSL Digital Certificates Service(s)

    1. Where the Supplier acts on behalf of the Client to register domain name(s) and / or purchase a SSL digital certificate(s), the Client is responsible for adhering to the terms and conditions of the naming authority for the domain name(s). The Client is responsible for renewing domain name(s) if the Client wishes to retain the use of the domain name. The Client assumes all responsibility for the renewal of any SSL certificate(s) and any costs or damage to their business and / or the costs of any work incurred because of a failure to renew the SSL / digital certificate(s) in a timely manner.

Hosting Service(s)

    1. The Supplier will use reasonable efforts to maintain the availability of service but does not guarantee that the Hosting Service(s) will be fault-free. Any fault found with the Hosting Service(s) must be reported as soon as possible to the Company by either by telephone or email. The Client accepts that the Hosting Service(s) may be subject to downtime caused by scheduled or emergency maintenance or repair.
    2. The Client is responsible for keeping secure the login name and password to their area on the Server and the integrity of their data. The Client shall provide their own backup solution in case their data be lost or become corrupt. The Company takes regular backups of servers; however, these backups are only for internal use and must not be relied upon as an alternative to the Client’s own solution.
    3. The Client agrees not to use the Hosting Service(s) to;
      • Upload any virus, trojan or malware which could infect the server(s) or any other machines or allow anyone to store or download infected files;
      • Publish or disseminate defamatory material or any material which could be in breach of the civil or criminal laws of England and Wales;
      • Gain access to any information or resources of a third party without permission;
      • Send unsolicited or spam e-mail;
      • Reduce the performance of server(s) to the detriment of other users;
      • Upload any material which, in the sole discretion of the Company, may be contrary to public decency and morality including (but not limited to) hate content, pornography or overtly tasteless material. The Client accepts that the Company may inspect the server(s) at any time and, if any such material has been uploaded, is being linked to or has been transmitted, may immediately terminate the Hosting Service(s).
    4. The Company reserves the right to add, improve, modify or deactivate individual features, applications, scripts and programs as necessary in the interests of technical progress, security or availability of technical support to ensure the stable operation and integrity of the Hosting Service(s). The Client agrees to cooperate and be responsible for managing any related adjustments to the Hosting Service(s) if requested to do so
    5. The Company shall take reasonable steps to ensure that any deactivation of individual features, applications, scripts or programs will not result in changes to a core function. If such changes result in changes to a core function and the Supplier is unable to provide a viable alternative, then the Client shall be entitled to a pro-rated refund on cancellation.
    6. The Company is not liable for any loss, claim or damage caused by;
      • Failure of backup;
      • Failure by the Client to make and store regular offsite backups outside of the Hosting Service(s);
      • Failure of supply of the Hosting Service(s) within a specific timescale;
      • Scheduled or emergency downtime;
      • Corruption and/or loss of data or code;
      • Unauthorised access to the Hosting Service(s).

Third-Party Products and Services

    1. The Supplier makes no warranty of any kind, whether express or implied, regarding any third-party products, third party content or any software, plug-ins, equipment, or hardware obtained from third parties that are used with or on the Client’s website.
    2. The Supplier is not responsible for third-party plugins or software that may become unusable or affect performance of the Service(s) because of:
      • updates performed during maintenance or development;
      • issues caused by the action or inaction of a licensor;
      • withdrawal of a product or service by a licensor;
      • change in third party license terms;
      • refusal by a licensor to extend licence terms;
      • failure by the Client to adhere to or, maintain awareness of third-party licence terms.

Changes

Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.

The Client may during the term of the Agreement request a change in the Service(s) by notifying the Company in writing of its requirements. The Supplier shall give due consideration to any change request, and answer within no more than 5 working days to either confirm its acceptance of the change request, provide a written proposal with any variation that it reasonably considers necessary or to provide the Client with a written statement of its reasons for not accepting the change request.

Authorship

Both Parties agree that when asked, the Client must properly identify the Company as the creator of the deliverables. The Client may not seek to mislead others that the deliverables were created by anyone other than the Company. The Company will not publish any confidential or non-public work without Client’s prior written consent.

Portfolio Rights

The Company is also entitled to reproduce samples of the Client’s website in its portfolio, marketing material, galleries and other media solely for the purpose of showcasing the Company’s work but not for any other purpose. Client hereby agrees the Company may use the work product as part of its portfolio and above.

Non-Solicitation

The Client shall not, without the prior written consent of the Supplier, at any time from the date of the Agreement to the expiry of 24 months after the last date of supply of the Service(s) or termination of the Agreement (whichever is the latest), solicit or entice away from the Company or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of the Company in the provision of the Service(s).

Termination

Either party may terminate the Agreement by giving the other party 30 days’ prior written notice. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:

i. does not pay any sum due to it under the Agreement within 30 days of the due date for payment;

ii. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied;

iii. persistently breaches any term of the Agreement;

iv. is dissolved, ceases to conduct substantially all its business or becomes unable to pay its debts as they fall due;

v. is a company over any of whose assets or property a receiver is appointed;

vi. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

vii. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;

viii. undergoes a change of control (within the meaning of Section 1124 of the Corporation Tax Act 2010); or (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.

Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.

All sums payable to the Company under the Agreement shall become due immediately on its termination, despite any other provision.

Relationship of the Parties

Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between the Company and Client. Both Parties agree that the Company is, and at all times during this Agreement shall remain, an independent Company.

Dispute

This Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of the Company’s primary business location (the “Company’s Jurisdiction”), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in the the Company’s jurisdiction.

The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

Force Majeure

No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.

Miscellaneous

The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.

Notices

Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via US mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.

Appropriate Conduct

Client and the Company will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. If at any time during the term of this Agreement the Company believes that he/she has been subjected to harassing behaviour on the part of Client or Client’s staff, the Company will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behaviour continues following the Company’s second notice, such behaviour will constitute a breach of this Agreement and entitle the Company to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to the Company by law.

Warranty

The Company warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation the Company may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, the Company); (iii) the Company has the full right to provide Client with the assignments and rights provided for herein; (iv) the Company shall comply with all applicable laws in the course of performing the Services and (v) if the Company’s work requires a license, the Company has obtained that license and the license is in full force and effect.

EXCEPT AS SET FORTH IN THIS ATTACHMENT B, the Company DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK.

EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS

Liability

Company agrees to indemnify, defend and hold harmless Client from any and all claims, actions, damages, and liabilities (excluding, without limitation, attorneys’ fees, costs and expenses) arising (i) through the Company’s gross negligence ; (ii) out of any claim that the materials or deliverables, or any portion thereof, in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of the Company’s representations, warranties or agreements herein.

Client agrees to indemnify, defend and hold harmless the Company from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) gross negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein.

TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE COMPANY SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOST PROFIT, LOSS OF BUSINESS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE COMPANY’S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY CLIENT TO THE COMPANY UNDER THIS AGREEMENT.

Confidentiality

Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party.

“Confidential Information” means all (i) nonpublic information (at the time of disclosure) disclosed by one party to the other party under this Agreement, provided such information is marked or indicated by the disclosing party to be confidential; (ii) and any information which ought reasonably to be considered confidential with regard to the circumstances surrounding disclosure, whether or not such information is marked “Confidential”.

In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.

Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent contractors, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of three (3) years.

Entire Agreement

The Agreement will be governed by and interpreted according to English law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the English courts.

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