Pixend Digital Agency

Performance Marketer Collective Ltd

These General Terms and Conditions of Service ("GTCs"), together with a signed Master Services Agreement ("MSA") and any signed Statement of Work ("SOW"), form the entire agreement ("Agreement") between Performance Marketer Collective Ltd ("Agency") and the Client (as identified in the MSA).

1. Definitions and Interpretation

1.1. "Agency IPR" means all Intellectual Property Rights owned by or licensed to the Agency, including in its methodologies, software, and pre-existing materials.

1.2. "Client Materials" means all materials, data, and information provided by the Client to the Agency, including logos, branding, and access to accounts.

1.3. "Deliverables" means the specific outputs of the Services to be supplied by the Agency to the Client as described in an SOW.

1.4. "Intellectual Property Rights" (IPR) means patents, rights to inventions, copyright, trademarks, trade names, rights in goodwill, rights in designs, rights in confidential information, and any other intellectual property rights, in each case whether registered or unregistered.

1.5. "Services" means the digital marketing services to be provided by the Agency as set out in an applicable SOW.

2. Services and Agency's Obligations

2.1. The Agency shall perform the Services and provide the Deliverables with reasonable care, skill, and diligence.

2.2. The Agency shall use reasonable endeavours to meet any performance dates specified in the SOW, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

2.3. The Agency reserves the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.

3. Client's Obligations

3.1. The Client shall:
a) Cooperate with the Agency in all matters relating to the Services;
b) Provide in a timely manner such Client Materials and information as the Agency may reasonably require;
c) Ensure that all Client Materials are accurate and complete in all material respects;
d) Obtain and maintain all necessary licences and consents required for the Agency to use the Client Materials.

3.2. If the Agency's performance of its obligations is prevented or delayed by any act or omission of the Client, the Agency shall not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

4. Charges and Payment

4.1. In consideration of the provision of the Services, the Client shall pay the charges as set out in the SOW ("Charges").

4.2. All Charges are exclusive of VAT, which the Client shall pay at the rate and in the manner for the time being prescribed by law.

4.3. The Agency shall invoice the Client for the Charges at the intervals specified in the SOW. The Client shall pay each invoice within thirty (30) days of the date of the invoice in full and in cleared funds.

4.4. Without prejudice to any other right or remedy, if the Client fails to make any payment due to the Agency by the due date for payment, the Agency shall have the right to:
a) Charge interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time, accruing on a daily basis from the due date until the date of actual payment; and
b) Suspend the Services until payment has been made in full.

5. Intellectual Property Rights

5.1. The Agency and its licensors shall retain ownership of all Agency IPR. The Client is granted a non-exclusive, non-transferable licence to use the Agency IPR solely for the purpose of receiving the Services.

5.2. The Client and its licensors shall retain ownership of all IPR in the Client Materials. The Client grants the Agency a fully paid-up, non-exclusive, royalty-free licence to use, copy, and modify the Client Materials for the purpose of providing the Services.

5.3. Upon full and final payment of all Charges due under an SOW, the Agency shall assign to the Client all of its rights, title, and interest in and to the IPR in the Deliverables created specifically for the Client under that SOW.

6. Confidentiality

6.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, except as permitted by clause 6.2.

6.2. Each party may disclose the other party's confidential information:
a) To its employees, officers, representatives, or advisers who need to know such information for the purposes of carrying out the party's obligations under the Agreement;
b) As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.

7. Data Protection

7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation (including the UK GDPR and Data Protection Act 2018). This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

8. Limitation of Liability

8.1. Nothing in the Agreement shall limit or exclude the Agency's liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation, or any other liability which cannot be limited or excluded by applicable law.

8.2. Subject to clause 8.1, the Agency's total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to the total Charges paid by the Client under the relevant SOW during the six (6) months immediately preceding the date on which the event giving rise to the claim occurred.

8.3. The Agency shall not be liable to the Client for any loss of profit, loss of business, depletion of goodwill, or any indirect or consequential loss or damage whatsoever.

9. Term and Termination

9.1. The Agreement shall commence on the date of the signed MSA and shall continue, unless terminated earlier in accordance with this clause 9, until the expiry or termination of the final SOW entered into between the parties.

9.2. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
a) The other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of being notified in writing to do so;
b) The other party takes any step in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, or being wound up.

9.3. Termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination.

10. General

10.1. Force Majeure. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control.

10.2. Assignment. Neither party shall assign, transfer, or deal in any other manner with any or all of its rights and obligations under the Agreement without the prior written consent of the other party.

10.3. Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, and representations, whether written or oral, relating to its subject matter.

10.4. Governing Law and Jurisdiction. The Agreement, and any dispute or claim arising out of or in connection with it, 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.