Terms & Conditions
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 P.O. Box 720103, Doral, Florida 33172 (“Contractor”) and YOU (the “Client”) (hereinafter from time to time collectively referred to as the “Parties”).
RECITALS:
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.
3.1: 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. 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.
Address: Pixel Supply, LLC
P.O. Box 720103
Doral, FL 33172
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.
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.
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.
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. ENTIRE AGREEMENT.
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.
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.
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.
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.
22. NOTICE.
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:
To Contractor: PIXEL SUPPLY LLC
P.O. Box 720103, Doral, FL 33172
E-mail: contact@pixelsupply.co
To Client: 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.
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.
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.
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. INDEPENDENT CONTRACTOR.
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.
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. 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 they are 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.
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. The Client agrees that any liability of Contractor relating to this agreement shall be limited to the amount of fees actually received by Contractor from the Client under this agreement. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES.
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.
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.