TERMS & CONDITIONS AGREEMENT
THIS AGREEMENT (“Agreement”) is entered into by either checking the “I have read, understood, and agreed to these terms and conditions” box, purchasing any services or products from Pixel Supply LLC., visiting or using any of the websites owned and operated by Pixel Supply, LLC., or by any other reasonable means of acceptance (“Effective Date”), evidences assent to be bound by the terms and conditions contained herein between PIXEL SUPPLY LLC., a Florida Limited Liability Corporation, with an address at 130 Miracle Mile Suite 210, Coral Gables, Florida 33134 (“Contractor”) and YOU (the “Client”) (hereinafter from time to time collectively referred to as the “Parties”).
WHEREAS, Contractor is in the business of providing electronic commercial services (“e-commerce”) including, but not limited to: web development, Shopify web development, online store setup, testing and launching services, maintenance services, and Shopify training services; and
WHEREAS, Client is engaging Contractor for the purposes of obtaining such e-commerce services as described in further detail below;
WHEREAS, Contractor reserves the right to update and change the Terms of Service by posting updates and changes to the Contractor’s website. The Client is advised to check the Terms & Conditions page from time to time for any updates or changes that may impact Client.
NOW THEREFORE, for and in consideration of the promises and of the mutual covenants and agreements herein contained, the parties hereto mutually agree to be legally bound as follows:
1. SCOPE. Contractor agrees to furnish the e-commerce services to Client, in strict accordance with the services and products contained in the final paid invoice (“Services”), pursuant to the terms and conditions contained in this Agreement:
2. DELIVERY AND REVISIONS. All Services shall be completed within the agreed timeline by both Parties of the Effective Date (“Delivery”). The Client will review Services and can request up to 2 rounds of revisionary work provided by Contractor at no additional charge. After the 2 rounds of revisions are completed, any extra changes or revisions shall be billed at the standard $150.00 USD per hour Contractor rate for the related services.
3. PRICE; PAYMENT. The non-refundable price of the Services shall be made in U.S. currency, USD (“Price”), and Client agrees to pay said Price in accordance with the following payment schedule.
Due upon agreement. PAYMENT IS NON-REFUNDABLE
3.2: REMITTANCE: All payments shall be made via debit card/credit card payment services provided through Shopify or by check to the address provided below. An additional 3% transaction fee is added to all credit card transactions. Should a payment be late or never made/received, Contractor reserves the right to freeze and/or terminate all work related to such account until all payments are settled.
Pixel Supply, LLC
130 Miracle Mile Suite 210 Miami, FL 33134
4. OWNERSHIP. Contractor will provide a Finished Product(s) to the Client in the form of source, rendered and asset files relating to all the requested Services (“Finished Product”). The Finished Product becomes the exclusive property of the Client upon acceptance of Delivery, however these files are partially based on a non-exclusive code base created and maintained by Contractor and in some cases existing code was used to help create the deliverables. Such code and other underlying technologies shall NOT become the property of the Client, only the Finished Product(s). In addition, the Finished Product(s) may depend on code, objects (COMs), and other third party utilities that are the property of their respective owners. No rights to these dependencies are expressed or implied. Additional licensing may be required for third party assets.
5. POINT OF CONTACT & TRAINING. Contractor will require one point of contact during the Agreement for clarifying requirements for design, key features, usability, and maintenance issues. Contractor requires this person be available to answer questions arising from the project within 24 to 48 hours on workdays (subject to reasonable exceptions), and possesses the requisite authority to make design and related decisions on the system.
6. RESPONSE TIME. Contractor works exclusively with Independent Contractors. The benefit of a flexible team is rapid scalability and a diverse set of services. Due to the nature of this business model, Contractor is not set up to support on-call services. Within the duration of this Agreement Contractor will make every good faith effort to reply to inquiries within 24 to 48 hours, except where the Client has been previously notified of a period of limited availability. Contractor will respond in good faith but cannot guarantee any specific action within a given time frame.
7. HOSTING. Contractor does not provide Hosting services beyond temporary internal development environments. The Client is responsible for choosing, paying for, and maintaining any required Hosting solutions and associated services. As a courtesy, Contractor may offer suggestions, however, Contractor is NOT responsible for down time, poor performance, loss of data, or any other problems caused by the Hosting Provider. Additionally, Contractor is not responsible for any bug caused by changes on the Host after the Acceptance of this Agreement, including but not limited to updates to operating system, compile systems, code libraries and languages, or any changes resulting from security violations.
8. BACKUPS. Contractor maintains internal backups of active project code and design files. This backup system is not intended as a solution for the Client, but rather as a code archive through the duration of this Agreement. While the Contractor backup system is fully redundant, it is not guaranteed and does not support any content produced by the Client. The Client is solely responsible for the backup and restoration of the Finished Product(s) and any associated data.
9. SECURITY. Although Contractor makes every effort to provide secure Finished Product(s), due to the nature of rapidly advancing technology, CONTRACTOR CAN IN NO WAY GUARANTEE THAT THE FINISHED PRODUCT(S) WILL NOT BE SUBJECT TO SECURITY BREACHES. Contractor recommends the use of strong passwords and the observance of standard security practices. In order to minimize the chances of security violations, systems should be updated often. The Client is solely responsible for tracking software updates. Any updates during the life of or after the expiration of the Contract can be negotiated as an addendum to this Contract or as an additional Contract.
10. COMPLIANCE. Contractor and Client shall possess all necessary permits, licenses and authorization to perform the Services. Contractor’s personnel used in the performance of this Agreement must have knowledge of and strictly adhere to all applicable Federal, State, and local laws and regulations. Client is responsible for compliance and strict adherence to and with all applicable Federal, State, and local laws and regulations.
11. INDEMNIFICATION. Contractor in no event shall be liable for lost profits and any special, incidental or consequential arising out of or in connection with our Services or this Agreement (however arising, including negligence). Client agrees to indemnify and hold Contractor and (as applicable) our parent, affiliates, subsidiaries, Shopify partners, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable attorneys’ fees (including, but not limited to, fees spent disputing validity of attorneys’ fees), made by any third party due to or arising out of Client’s breach of this Agreement, Client’s violation of any law or regulation, or violation of rights of any third party.
Client agrees and hereby undertakes to indemnify, defend and hold harmless Contractor, its affiliates, its directors, officers, employees and agents from and against any and all liabilities, damages, claims, penalties, suits and actions of every nature and description (including but not limited to, any and all costs, expenses and attorney’s fees related thereto) brought or alleged against Contractor, its affiliates, its directors, officers, employees and agents arising out of this Agreement due to an act or omission of Client, its employees, agents and sub-contractors.
12. WARRANTIES. Contractor will provide patches and bug fixes for any bugs or issues included in the scope of this contract reported within the grace period of no more than 30 days (“Grace Period”) following the date of Delivery. All bug fixes outside of the project scope or after the Grace Period are the responsibility of the client.
13. DISCLAIMER OF WARRANTY. The design and the placement, editing and arrangement of editorial content are NOT subject to warranty and are provided ‘AS IS’. Should further support be necessary, a support contract may be negotiated. CONTRACTOR MAKES NO WARRANTIES HEREUNDER, OTHER THAN THOSE DISCUSSED ABOVE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, TO THE EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, Contractor further disclaims all representations and warranties, express or implied, that Shopify and Contractor do not infringe or otherwise violate any intellectual property or other proprietary right of any third party in any jurisdiction, including, but not limited to, the territory where this contract is to be performed. In the event that any aspect of this Agreement is dependent on a separate third party or the Client’s in house team, employees, personnel, or subcontracted personnel, or the like, the quality and punctuality of the Finished Product(s) may be subject to said party’s ability to meet the required timelines and/or level of quality. Contractor, therefore, herein disclaims any liability for any delay or defect caused by separate third party or the Client’s in house teams.
14. TERM. This Agreement shall commence on the Effective Date, and shall continue in effect until all Services have been delivered to Client, or until terminated by either party (“Term”), with cause, by providing written notice of termination not less than fifteen (15) days in advance, specifying the date of termination. Contractor reserves the right to terminate the Services at any time, with or without cause.
15. DEFAULT. Client reserves the right to terminate this Agreement at any time after fifteen
(15) days prior written notice to Contractor based on Contractor’s breach of its obligations under this Agreement. Upon the occurrence and during the continuance of any of the following events (each, an “Event of Default”) on the part of one party, the other party may terminate this Agreement immediately (but all obligations that have accrued before termination or that are of a continuing nature, including without limitation, indemnity obligations, shall survive such termination):
a) In the case of Contractor, failure to cure non-performance not later than FIFTEEN (15) days after written notice to cure such non-performance has been delivered by Client to Contractor;
b) In the case of either party, such party makes a general assignment for the benefit of creditors, institutes a bankruptcy, insolvency or similar proceeding (an “Insolvency Proceeding”), consents to the institution of, or seeks any relief in, an Insolvency Proceeding, or takes any corporate action to authorize any of the foregoing, after good faith consultation with the other party;
c) In the case of either party, it becomes the subject of an Insolvency Proceeding instituted by others, and either such Insolvency Proceeding is not dismissed within sixty (60) days or any relief is rendered in such Insolvency Proceeding; or
d) In the case of Client, if Client fails to remit any payment in accordance with Paragraph 2 of this agreement. In the event this Agreement terminates for any reason and upon receipt of written notice thereof, Contractor shall stop all work under this Agreement and the Client shall pay Contractor the fees due for all Services performed up to the date of termination, all costs associated with the termination effort, and, where termination is the result of nonpayment of fees due under this Agreement, reasonable profit for the Services to have otherwise been performed
16. SEVERABILITY OF PROVISIONS. The provisions of this Agreement are severable and the invalidity or ineffectiveness of any part thereof shall not affect or impair the validity and effectiveness of remaining parts or provisions of this Agreement.
17. ENTIREAGREEMENT. This Agreement supersedes all previous agreements, oral or written, between Contractor and Client, and represents the entire Agreement between the parties. No other agreements or representations, oral or written have been made by Contractor. This Agreement may not be altered, modified or amended, except in writing, properly executed by an authorized representative of both Parties.
18. ASSIGNMENT AND DELEGATION. Contractor may not assign this Agreement without first obtaining the written consent of the Client and any such assignment shall be void. The Contractor shall have the right to subcontract any service it may provide under this Agreement to a third party. The Contractor shall nevertheless be responsible to the Client for the proper rendering of such services as if they had been performed by the Contractor itself without further cost to the Client. Any refusal by the Client to accept performance by a subcontractor must be based on reasonable grounds.
19. GOVERNING LAW AND VENUE. This Agreement and its performance shall be governed by the Laws of the State of Florida and both parties agree that the venue for any legal proceedings arising from this Agreement shall be laid in the State Courts located in Miami-Dade County, Florida or the United States District Court for the Southern District of Florida. The prevailing party shall be entitled to recover all costs and expenses including reasonable attorney’s fees, as well as, but not limited to, fees spent disputing validity of attorneys’ fees.
20. ARBITRATION AND MEDIATION CLAUSE. If a dispute or disagreement arises out of or relates to this Agreement, or the breach thereof, the Parties agree to first attempt, in good faith, to settle the dispute through the use of negotiations. If the dispute cannot be settled or resolved within a period of 60 days through negotiation, then upon notice by either Party to the other, the Parties agree to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures, the locale of which shall be in the State of Florida in Miami-Dade County. If the dispute cannot be settled though the use of non-binding mediation, the Parties agree to settle the dispute by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, or such other rules as deemed fit and appropriate, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The locale of such arbitration proceedings shall be in the State of Florida in Miami-Dade County.
Within 14 days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. The Party-selected arbitrators shall serve in a non-neutral capacity. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The arbitrators shall award to the prevailing Party, if any, as determined by the arbitrators, all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
21. WAIVER OF RIGHT TO JURY TRIAL. Each of the Parties acknowledge and agree that any controversy that may arise directly or indirectly under this Agreement, any of the Agreements delivered in connection herewith, or the transactions contemplated herewith are likely to involve complicated and difficult issues. Therefore, each of the Parties or any assignee, successor, heir or personal representative of a Party, hereby irrevocably and unconditionally waive any right it may have to a trial by jury in respect of any litigation or any claim or cause of action directly or indirectly arising out of or relating to this Agreement, any of the agreements delivered in connection herewith, or any transactions or dealings contemplated between the Parties in connection herewith. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relates to the subject matter of this Agreement, including, but not limited to, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims and any and all counterclaims. Each Party certifies and acknowledges that:
a) The waiver, among other things, is a material inducement to enter into this Agreement;
b) Such waiver is entered into voluntarily and knowingly; and
c) Each Party has had an opportunity to review with outside counsel.
Any notice required to be delivered by either Party in this Agreement shall be in writing and shall be deemed to have been duly given if either sent by overnight courier or by mailing certified or registered mail, return receipt requested, electronic mail (“e-mail”) (expressly excluding text and voicemail messages) and addressed to the other Party as set forth below:
Contact information as provided by Client.
23. NOTICE OF CLAIMS. Each party shall give written notice to the other of any claim or potential claim arising out of or relating to this Agreement within three (3) days of obtaining knowledge of the occurrence giving rise to such claim or potential claim as will enable each party to be properly advised and make a reasonable assessment thereof.
24. NON-WAIVER. Failure of either party to enforce any of the provisions of this Agreement, or any of its rights with respect thereto, or to exercise any election herein provided, shall in no way be considered a waiver of such provisions, rights or elections or in any way affect the validity of this Agreement. The exercise by either party of any of its rights herein or any of its elections under the terms or conditions herein shall not preclude or prejudice that party from exercising the same or any other right it may have under this Agreement.
25. CONFIDENTIAL INFORMATION. The Parties shall keep in strict confidence the details of this Agreement and shall not divulge, directly or indirectly, any trade secrets, strategies, methods or confidential information in respect to this Agreement to any third party, except as required in the course of providing the Services pertaining to this Agreement. Confidential information includes any materials or information provided by the Parties to each other, which is not publicly known. Confidential information does not include information that: a) was in the public domain at the time Contractor received such information; b) comes into the public domain after Contractor received such information through no fault of Contractor; c) Contractor receives such information from a third party without breach of any confidentiality obligations; or d) required to disclose confidential information by law. In the event that any of the Parties is required to disclose any confidential information pursuant to a court order, or governmental or administrative request, and except for instances where requested or instructed specifically not to notify the other party, it shall notify and co-operate with the party, limit any disclosure to the minimum required by law and, to the extent possible, request that such information be kept confidential. This clause shall supersede the termination of this agreement.
26. AUTHORITY. Each party to this Agreement represents and warrants that it has the full right, power and authority to enter into this Agreement, to perform the obligations contained herein and that the execution, delivery and performance of this Agreement will not conflict with or constitute a default under any contract, agreement or other obligation to which it is subject.
27. INDEPENDENTCONTRACTOR. Neither party shall, at any time or for any purpose whatsoever, be or become an employer, principal, employee or representative of the other; neither party has any right or authority to assume or create any obligation of any kind in the name of or on behalf of the other; and neither party shall be responsible for the acts or omissions of the other or the other's agents, officers, directors, employees or subcontractors.
28. NON-SOLICITATION. If within one year of termination of this Agreement the Client hires or contracts with any employee or Independent Contractor of Contractor The Client will agree to pay Contractor, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee.
29. NONEXCLUSIVITY. This Agreement is a non-exclusive agreement, and both Parties remain free to enter into similar agreements with third parties.
30. COUNTERPARTS AND ELECTRONIC VERSIONS. The parties may execute this Agreement in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement. The signatures of all of the parties need not appear on the same counterpart, and delivery of an executed counterpart signature page by electronic mail is as effective as executing and delivering this Agreement in the presence of the other party.
31. FORCE MAJEURE. The Contractor or the Client, as the case may be, shall be entitled to suspend or excuse-performance of its respective obligations under this Agreement to the extent that the Contractor or the Client, as the case may be, is unable to render such performance on account of an event of Force Majeure. If the force majeure event continues beyond a period of 10 (ten) calendar days, Parties shall mutually agree on the course of action to be undertaken thereafter. Force Majeure includes but is not limited to the following events and/or circumstances of the kind listed below:
War (whether declared or undeclared), invasion, armed conflict or act of foreign enemy in each case involving: or directly affecting USA;
Revolution, riot, or other civil commotion, act of terrorism or sabotage in each case within USD;
Strikes, go-slows and/or lockouts or other industrial action or labor disputes which is in each case widespread, nationwide or political;
Any effect of the natural elements. Including lightning, fire, earthquake, unprecedented rains, tidal wave, flood, storm, cyclone, typhoon or tornado, and oilier unusual or extreme adverse weather environmental conditions or actions of the elements within USA;
Any event or circumstances of nature analogous to any events set forth in paragraphs (a) to (d) of this clause within USA.
32. HEADINGS. The headings contained herein are for reference purposes only and do not in any way affect the meaning or interpretation of this Agreement.
33. LIMITATION OF LIABILITY. The Client alone shall be responsible for: (a) the accuracy and adequacy of information and data furnished for processing; (b) any use made by the Client of the output of the Software or any reliance thereon; and (c) obtaining the required licenses and respect copyright for any and all third party assets including but not limited to fonts, media, and software. The Client shall also be responsible for the continued operation and maintenance of the computer equipment and third party software used with the Finished Product(s), and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers.
The Client agrees that any liability of Contractor relating to this agreement and the services performed shall be limited to the amount of fees actually received by Contractor, from the Client under this agreement regarding the services in question. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; ANY DAMAGES BASED ON INJURY TO PERSON OR PROPERTY; OR ANY LOST SALES, PROFITS OR DATA, EVEN IF THE CLIENT IS TOLD THAT ANY SUCH DAMAGES MAY OCCUR.
34. MARKETING RIGHTS. Contractor retains the right, and Client grants to Contractor, the right to use the Client within its roster of clients for the purposes of, but not limited to: marketing, advertising, and other reasonably related activities.
35. PIXEL SUPPLY THEMES. You may establish the appearance of your Shopify store with a design template from Contractor’s Theme Store (“Theme”). If you download a Theme, you are licensed to use it for a single store only. You are free to transfer a Theme to a second one of your own stores if you close your first store. You are not permitted to transfer or sell a Theme to any other person’s store on Shopify or elsewhere. Multiple stores require multiple downloads and each download is subject to the applicable fee. Contractor gives no assurance that a particular Theme will remain available for additional downloads.
Client may modify the Theme to suit Client’s store. Shopify may add or modify the footer that refers to Shopify at its discretion. Contractor may modify the Theme where it contains, in our sole discretion, an element that may be unlawful, offensive, threatening, defamatory, pornographic, obscene, or otherwise objectionable, or that violates any person’s intellectual property, even if you received the Theme in that condition. Contractor may modify the Theme to reflect technical changes and updates as required.
The intellectual property rights of the Theme remain the property of the Contractor. If you exceed the rights granted by your purchase of a Theme, the Contractor may take legal action against you, and Shopify may take administrative action such as modifying your store or closing your store. It is the responsibility of the user, and not the Contractor, to ensure that the installation of a new theme does not overwrite or damage the current or preexisting theme, or UI, of the user, unless, Client engages and agrees with Contractor for those Services.
36. DIGITAL PRODUCT DOWNLOADS REFUND POLICY. All digital products including Themes, Templates, Newsletter Designs, Audio files, video files or image files are NON-REFUNDABLE.
37. ACCEPTANCE OF THE CONTRACT. This Agreement shall become effective by: clicking, checking, selecting, and other reasonable forms of indicating Client’s assent to the “I have read, understood, and agreed to these terms and conditions”, purchasing any services or products from Pixel Supply LLC., visiting or using any of the websites owned and operated by Pixel Supply, LLC., or by any other reasonable means of acceptance, by the Client. The terms and conditions of said Agreement are expressly limited to the provisions hereof, notwithstanding receipt of, or acknowledgment of any purchase order, specification, or other document issued by Client. Any additional or different terms set forth or referenced in Client’s purchase order or similar document are hereby objected to by Contractor and shall be deemed a material alteration of these terms and shall not be a part of any resulting order.