terms and conditions.
General Terms and Conditions for Equipment Rentals & Services
Chapter I – General Provisions
Article 1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
- Agreement: Pixl Evolution’s quotation, the Customer’s Order together with these Conditions, and Pixl Evolutions acceptance of the applicable Order constitute a binding agreement between the Customer and Pixl Evolution for the supply of Goods and/or Services and/or Equipment (as applicable) in accordance with these Conditions.
- Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Conditions: these terms and conditions (including both Chapter 1 “General Provisions” and Chapter 2 “Special Provisions Applicable to Sale, Contracting, Rental, Services and Repairs”) as amended from time to time in accordance with Article 20 13.
- Customer: the person or firm who rents the Equipment and/or who purchases the Goods and/or Services from Pixl Evolution.
- Deliverables: deliverables set out in the Order and produced by Pixl Evolution for the Customer as part of the Services.
- Equipment: the equipment being rented, rather than purchased, by the Customer from Pixl Evolution together with all related accessories, manuals and instructions provided and as detailed in each applicable Order.
- Fees: the charges payable by the Customer to Pixl Evolution in relation to the provision of the Equipment, and/or Goods and/or Services and as detailed within the applicable quotation and/or Order.
- Force Majeure Event: has the meaning given in Article 13.
- Goods: the goods (or any part of them) set out in the Order.
- Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Order: the Customer’s order for the supply of Goods and/or Services, or the rental of the Equipment as set out in the the Customer’s purchase order form, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
- Pixl Evolution: Pixl Evolution Ltd. registered in England and Wales with company number 10710671.
- Services: the services, including the Deliverables, supplied by Pixl Evolution to the Customer as set out in the Order.
- UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written include email but does not include fax.
Article 2. Application of the Terms and Conditions
- These Conditions apply to all offers for and Orders concerning the delivery and/or rent of Equipment and/or supply of Goods and/or Services by Pixl Evolution. The Customer confirms acknowledgment of these Conditions prior to each transaction, and agrees to expressly accept them by its performance of the transaction.
- These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Amendments to these Conditions require an express written agreement between the parties in order to be effective.
- The Customer acknowledges and agrees that these Conditions equally apply to all Orders with Pixl Evolution, in circumstances where it uses, or relies upon, the involvement of third parties to complete performance.
- If any provision (or part thereof) of these Conditions is found to be illegal and/or unenforceable, such provision (or the relevant part thereof) may be severed from the rest of these Conditions and the remaining provisions of the Conditions will continue in full force and effect.
- All of these Conditions shall apply to the supply of Goods, Services and/or the provision of the rental Equipment except where application to one or the other is specified.
Article 3. Formation of Obligations and Agreements
- The Order constitutes an offer by the Customer to purchase Goods and/or Services, and/or to supply the Equipment in accordance with Pixl Evolution’s quotation and these Conditions.
- The Order shall only be deemed to be accepted when Pixl Evolution issues written acceptance of the Order at which point and on which date the Agreement shall come into existence.
- Any samples, drawings, descriptive matter or advertising issued by Pixl Evolution and any descriptions of the Goods, Equipment or illustrations or descriptions of the Services contained in Pixl Evolution’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Equipment, Services and/or Goods described in them. They shall not form part of the Agreement nor have any contractual force.
- Any quotation made by Pixl Evolution remains valid for 30 Business Days after date of issuance to the Customer or for such shorter term as indicated in the relevant quotation. Quotations are for information purposes only and can be revoked or amended at any time unilaterally by Pixl Evolution. Unless indicated otherwise, the quotation does not include installation, operation, assembly or transport and similar services. Unless indicated otherwise, the Fees are always exclusive of VAT.
- Pixl Evolution reserves the right at all times to refuse to accept Orders without having to state any reasons therefor.
- In case of frequent commercial Agreements between Pixl Evolution and the Customer, no rights or obligations can be derived from this prior course of dealings and the parties must rely on the terms and conditions of the specific Agreement and applicable Order concerning the specific transaction, except with respect to these Conditions, which are considered to be known, accepted and applicable to each and every Agreement.
- In principle, an Agreement is entered into on the basis of the “unit prices” as stated in the quotation. The prices mentioned in brochures, on websites and similar media are indicative only. Deviations from the foregoing are made at Pixl Evolution’s sole discretion and only effective upon express notice to the Customer, it being understood that each deviation only relates to the specific transaction and can never be invoked as a precedent for future commercial transactions.
- Each Agreement is entered into under the condition precedent that the Customer is, in Pixl Evolution’s opinion, sufficiently credit-worthy to comply with its payment obligations under the Agreement. Pixl Evolution has the right, upon or after conclusion of the Agreement, and prior to (further) performance, to request an advance payment of any amount from the Customer and/or to demand security to ensure that both the payment obligations and other obligations under any Agreement with Pixl Evolution will be complied with by the Customer. Failure to provide the advance payment will suspend performance of the Agreement in favour of Pixl Evolution without prejudice and Pixl Evolution will have the right to review any agreed timelines for performance at its discretion. If the unit prices increase during this period of suspension, the increased prices will apply. Costs of Crew travel costs and accommodation as part of the quote (which reflect a reasonable assessment of what the costs could be) will be confirmed and verified at the point they are actually booked and the Customer shall be responsible for such costs. Without prejudice to any other rights of Pixl Evolution under the Agreement, Pixl Evolution reserves the right, if, in case of partial deliveries, any delivery remains unpaid, to suspend or cancel the remaining partial deliveries, without prejudice to its right to claim damages.
Article 4. Performance of the Agreement
- Pixl Evolution will use reasonable care and skill in its performance of its duties and obligations under the Agreement.
- Pixl Evolution reserves the right to use third parties to carry out its obligations under the Agreement, if and in so far as Pixl Evolution deems necessary for proper performance of the Agreement
- Unless otherwise agreed and clearly stipulated on the agreed Order, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Pixl Evolution
- Pixl Evolution grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
- The Customer shall not sub-license, assign or otherwise transfer the rights granted by Article 4 (4).
- The Customer grants Pixl Evolution a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Pixl Evolution for the term of the Agreement for the purpose of providing the Services to the Customer.
Article 5. Customer Obligations
1. The Customer shall:
- a) ensure that the terms of the Order as well as all other data, which Pixl Evolution considers necessary or which the Customer should reasonably know to be necessary for the performance of the Agreement, are provided in a timely manner to Pixl Evolution. If the data necessary for the performance of the Agreement are not provided to Pixl Evolution on time, Pixl Evolution has the right to suspend the performance of the Agreement and/or to invoice the Customer for the extra costs resulting from the delay at Pixl Evolution’s standard rates in place from time to time;
- b) ensure that the terms of the quote and any information it provides in relation to the goods or services to be provided are complete and accurate;
- c) co-operate with Pixl Evolution in all matters relating to the Services, Goods or Equipment, as applicable;
- d) provide Pixl Evolution, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Pixl Evolution to provide the Services;
- e) provide Pixl Evolution with such information and materials as Pixl Evolution may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- f) prepare the Customer’s premises for the supply of the Services;
- g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
- h) comply with all applicable laws, including health and safety laws;
- i) keep all materials, equipment, documents and other property of Pixl Evolution (Supplier Materials) at the Customer’s premises (or such applicable location) in safe custody at its own risk, maintain Supplier Materials in good condition until returned to Pixl Evolution, and not dispose of or use the Supplier Materials other than in accordance with Pixl Evolution’s written instructions or authorisation.
2. Pixl Evolution shall have no liability, of any kind whatsoever, whether arising under statute or arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity, misrepresentation or otherwise, resulting from the Customer’s breach of its obligations under this Agreement.
Article 6. Delivery Dates, Delivery & Risk
- Unless expressly agreed otherwise in writing, any delivery dates stated by Pixl Evolution are indicative only and any delay in delivery does not give rise to any liability on Pixl Evolution’s behalf or right to damages in favour of the Customer, nor does it entitle the Customer to terminate the Agreement and/or to refuse acceptance of the Goods, and/or Services and/or Equipment. Time shall not be of the essence for the performance of the Services and/or the delivery of the Goods and/or Equipment.
- Unless provided otherwise, all Goods and/or Equipment are delivered at the warehouse of Pixl Evolution. Delivery of the goods shall take place upon the completion of the loading of the goods at Pixl Evolution’s warehouse. Risk of loss, damage or theft passes to the Customer at the moment of delivery. The Goods are always transported at the risk and expense of the Customer.
- Pixl Evolution shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Pixl Evolution with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and/or Equipment.
- Partial deliveries are allowed. If the Goods and/or Equipment are delivered in partial deliveries, Pixl Evolution has the right to invoice each delivery separately.
- The Customer is obliged to take possession of the Goods purchased or Equipment rented at the moment these are delivered, or at the time they are placed at the Customer’s disposal in accordance with the specific Agreement.
- If the Customer refuses to take possession of the Goods and/or Equipment, or is negligent in providing information or instructions necessary for the delivery, the Goods and/or Equipment will be stored on the Customer’s behalf and at its risk. In such case all additional costs, including any case storage costs, will be at the expense of the Customer.
- If the Customer fails to take delivery of the Goods and/or Equipment within three Business Days of Pixl Evolution notifying the Customer that the items are ready, then except where such failure or delay is caused by a Force Majeure Event or by Pixl Evolution’s failure to comply with its obligations under the Agreement in respect of the applicable goods:
- a) delivery of the Goods and/or Equipment shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Pixl Evolution notified the Customer that the Goods and/or Equipment were ready; and
- b) Pixl Evolution shall store the Goods and/or Equipment until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
- If ten Business Days after the day on which Pixl Evolution notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Pixl Evolution may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods as agreed pursuant to the terms of the applicable Agreement.
- If the Agreement concerns works on location, the Customer must ensure that the works can start expeditiously, by ensuring that the work location is duly accessible for Pixl Evolution’s employees, for third parties appointed by Pixl Evolution and for the materials to be supplied. The Customer must also provide the necessary power supplies and good working light, make available auxiliary tools, steeplejacks and scaffolding, if necessary, and ensure that no works by third parties hinder or delay work progress. All additional costs incurred as a result of the Customer’s failure to comply with these aforementioned conditions will be at the expense of the Customer.
- The Customer undertakes to immediately provide Pixl Evolution with the necessary customs documents for all exports outside the EU, both for sales and for rentals (for sales = Single Administrative Document, for rentals = Single Administrative Document or ATA Carnet for proof of temporary export). All costs related to these (temporary) exports are at the expense of the Customer.
- Title to the Goods shall not pass to the Customer until the earlier of:
- a) Pixl Evolution receives payment in full (in cash or cleared funds) for the Goods and any other Goods that Pixl Evolution has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
- b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified Article 6 (14) below.
- Until title to the Goods has passed to the Customer, the Customer shall:
- a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Pixl Evolution’s property;
- b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Pixl Evolution’s behalf from the date of delivery;
- d) notify Pixl Evolution immediately if it becomes subject to any of the events listed in Article 7 (2) below; and
- e) give Pixl Evolution such information as Pixl Evolution may reasonably require from time to time relating to:
i. the Goods; and
ii. the ongoing financial position of the Customer.
- Subject to Article 6 (14), the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Pixl Evolution receives payment for the Goods. However, if the Customer resells the Goods before that time:
- a) it does so as principal and not as Pixl Evolution’s agent; and
- b) title to the Goods shall pass from Pixl Evolution to the Customer immediately before the time at which resale by the Customer occurs.
- At any time before title to the Goods passes to the Customer, Pixl Evolution may:
- a) by notice in writing, terminate the Customer’s right under Article 6 (13) above to resell the Goods or use them in the ordinary course of its business; and
- b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Article 7. Amendments to and Dissolution of the Agreement
- If a proposed amendment of, or supplement to, the Agreement has financial and/or qualitative consequences, Pixl Evolution will inform the Customer in advance. Verbal commitments and/or amendments to the Agreement(s) are only binding upon express acceptance by Pixl Evolution in writing.
- Without prejudice to any other rights or actions, Pixl Evolution has the right to immediately terminate the Agreement(s), without obtaining prior judicial intervention, in the following cases:
- a) If the Customer fails to comply with any of its obligations under the Agreement(s);
- b) If, after formation of the Agreement, Pixl Evolution becomes aware of circumstances which give it good grounds to conclude that the Customer will not be able to meet one or more of its obligations under the Agreement;
- c) If Pixl Evolution has requested the Customer, at the time of conclusion of the Agreement or during the performance thereof, to provide security under Article 2 (8) of these Conditions and such security is either not provided or is insufficient;
- d) If the Customer ceases or threatens to cease to trade (either in whole, or as to any part or division involved in the performance of the Agreement), or becomes or is deemed insolvent, is unable to pay its debts as they fall due, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes any composition or arrangement with its creditors or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), or takes or suffers any similar or analogous procedure, action or event in consequence of debt in any jurisdiction.
- In case of termination in accordance with Article 7(2) above, all invoices from Pixl Evolution to the Customer will become immediately due and payable and the Customer will have to return all Goods and/or Equipment delivered or placed at its disposal by Pixl Evolution within 24 hours after receipt of a written notice from Pixl Evolution. Without prejudice to any other right of Pixl Evolution under the Agreement or these Conditions, Pixl Evolution and/or its representatives will have the right to access the premises where the Goods and/or Equipment are located to take back possession of the Goods and/or Equipment in case the Customer does not return the Goods and/or Equipment within 24 hours. The Customer must provide its cooperation to that end.
Article 8. Cancellation
- Any cancellation of Pixl Evolution’s Services, the supply of Goods and/or rental of the Equipment and/or performance hereunder once the Customer’s Order has been confirmed by Pixl Evolution is subject to a cancellation charge. All cancellations shall be in writing and shall not be effective until received by Pixl Evolution. A cancellation charge of 25% of the cost to Customer of the applicable Goods, Services and/or Equipment and labour is applicable when a project is cancelled with less than fourteen days’ notice of the scheduled first day of the applicable project. When an Order is cancelled with less than seven days’ notice of the scheduled first day of the applicable project, a cancellation fee of 50% of the cost to Customer of the applicable Goods, Services and/or Equipment and labour will be incurred. A fee of 100% is applicable to cancellations with less than 72 hours’ notice of the scheduled first day of the applicable project. The first day of the applicable project is deemed to be the first scheduled day of warehouse prep by Pixl Evolution for the overall project including without limitation keynotes, general sessions, breakouts, parties, exhibits and special events. Additionally, the Customer will reimburse, in full, any direct costs to Pixl Evolution incurred prior to such cancellation and which have been pre-approved by Customer and documented to the Customer. Pixl Evolution reserves the right to cancel all obligations under these Conditions if Customer does not fulfil its obligations hereunder, including without limitation timely payment as described in Article 10.
Article 9. Advice and Data
- Any advice given by Pixl Evolution does not constitute a term of the Agreement or a variation of these Conditions unless expressly detailed in writing. Pixl Evolution does not accept, and shall not have, any liability, whether arising under statute or arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity, misrepresentation or otherwise, for any (verbal or written) advice provided.
- Advice provided by Pixl Evolution can never relieve the Customer from the obligation to satisfy itself that the Goods and/or Equipment are fit for the purpose intended by the Customer. This applies equally to data regarding the composition of the Goods or Equipment and their potential applications.
Article 10. Invoices and Payment
- All invoices are payable in BACS, unless a specific payment term has been agreed to by Pixl Evolution in advance and in writing.
- All amounts due to Pixl Evolution have to be paid in full, without deduction, discount or settlement by deposit on, or transfer to, an account indicated by Pixl Evolution. The Customer is not entitled to assert any set-off, counter-claim or retention right against Pixl Evolution, whether in contract, tort or on the basis of an alleged violation of legal obligations or to invoke any other ground whatsoever to justify delayed payment for such amount in whole or in part.
- The Customer shall pay each invoice submitted by Pixl Evolution:
a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Pixl Evolution and confirmed in writing in advance to the Customer; and
b) in full and in cleared funds to a bank account nominated in writing by the Pixl Evolution, and
c) time for payment shall be of the essence of the Agreement.
- In the event that payment terms different from Pixl Evolution’s standard payment terms detailed above in Article 10 (3) are agreed (Bespoke Terms), the Customer acknowledges that as a condition to continuance of the Bespoke terms is that time shall be of the essence in relation to the payment obligations under those Bespoke Terms. In the event that the Customer is late is making a payment due under the Bespoke Terms, they shall immediately be declared void and the agreement between Pixl Evolution and the Customer shall be subject to these Conditions. Any discounted rate applicable under the Bespoke Terms shall also be deemed to be revoked and Pixl Evolution’s standard fees shall apply. In addition to the revocation of any Bespoke Terms the full balance payable to Pixl Evolution shall become immediately due, as increased by the applicable late payment interest and fee as described in Article 10(6) below.
- Complaints or disputes must be notified to Pixl Evolution in writing by registered letter within 7 business days following the invoice date in order to be considered. Any dispute by the Customer of any invoice or any part thereof, for any reason whatsoever, does not entitle the Customer to withhold payment of the due invoices, not even in part.
- If the Customer is overdue with any payment hereunder, then without prejudice to Pixl Evolution’s other rights or remedies, the Customer shall be liable to pay interest on the overdue amount at an annual rate of 5% above the prevailing base rate of Barclays Bank plc, which interest shall accrue on a daily basis from the date payment becomes overdue until Pixl Evolution has received full payment of the overdue amount together with all interest that has accrued, whether before or after judgment. The Customer will also be liable, to the maximum extent permitted by law, to pay a lump sum indemnity of 10% of the total invoice amount, with a minimum of 500, without prejudice to the right of Pixl Evolution to full compensation. All judicial and extrajudicial costs of Pixl Evolution, including costs for internal and external advices, resulting for Pixl Evolution from the non-compliance by the Customer with any (payment) obligation, are at the expense of the Customer. Payments performed by the Customer always serve to first pay all the interest and costs owed and then the oldest invoices due, even if the Customer mentions that the payment concerns a later invoice.
- Bills of exchange, cheques, assignment, payment by third parties or the granting of credit do not cause novation, nor any amendment to the provisions of the Agreement.
- Provided that such detail is included within the Order and/or is otherwise agreed in advance with the Customer, Pixl Evolution shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Pixl Evolution engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Pixel Evolution for the performance of the Services, and for the cost of any materials. The Customer acknowledges that such costs and expenses do fluctuate dependant of the time of booking and any detail provided is indicative of such costs until they are confirmed and verified at the point they are actually booked and at which point the Customer shall be responsible for all such costs.
Article 11. Liability
- Pixl Evolution shall not be liable to the Customer under or in connection with the Agreement for any loss of profits, loss of contracts, loss of goodwill or reputation, damage to or corruption of data or for any indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising under statute or arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity, misrepresentation or otherwise.
- Subject to Article 19 (5), Pixl Evolution’s maximum aggregate liability to the Customer under or in connection with each Agreement whether arising under statute or arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity, misrepresentation or otherwise, shall in no circumstances exceed the Fees payable by the Customer for the Goods, Services and/or Equipment under such Agreement.
- The Customer indemnifies and holds Pixl Evolution harmless from, and against, any and all damage and liability Pixl Evolution may suffer or incur as a result of claims by third parties related to goods or services provided by Pixl Evolution to the extent such claim results from acts or omissions by the Customer or from dangerous situations caused by the Customer.
- Without prejudice to the foregoing, the Customer expressly acknowledges that Pixl Evolution does not bear any responsibility with respect to modifications by the Customer or third parties or improper use of the delivered Goods and/or Equipment.
- Nothing in the Agreement shall exclude or in any way limit either party’s liability to the other party for (i) fraud; (ii) death or personal injury caused by negligence (including negligence as defined in s. 1 Unfair Contract Terms Act 1977); (iii) breach of terms regarding title implied by s. 12 Sale of Goods Act 1979 and/or s. 2 Supply of Goods and Services Act 1982; or (iv) any liability to the extent the same may not be excluded or limited as a matter of law.
Article 12. Data Protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This Article 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Article 12, “Applicable Laws” means (for so long as and to the extent that they apply to Pixl Evolution) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
- The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and Pixl Evolution is the processor.
- Without prejudice to the generality of Article 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Pixl Evolution for the duration and purposes of the Agreement.
- Without prejudice to the generality of Article 12.1, Pixl Evolution shall, in relation to any personal data processed in connection with the performance by Pixl Evolution of its obligations under the Agreement:
- a. process that personal data only on the documented written instructions of the Customer unless Pixl Evolution is required by Applicable Laws to otherwise process that personal data. Where Pixl Evolution is relying on Applicable Laws as the basis for processing personal data, Pixl Evolution shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Pixl Evolution from so notifying the Customer;
- b. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- c. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- d. not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled:
i. the Customer or Pixl Evolution has provided appropriate safeguards in relation to the transfer;
ii. the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
iii. Pixl Evolution complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
iv. Pixl Evolution complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- The Customer consents to Pixl Evolution appointing third-party processors of personal data under the Agreement. Pixl Evolution confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this Article 12 and in either case which Pixl Evolution confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and Pixl Evolution, Pixl Evolution shall remain fully liable for all acts or
omissions of any third party processor appointed by it pursuant to this Article 12
- Pixl Evolution may, at any time on not less than 30 days’ notice, revise this Article 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Agreement).
Article 13. Force Majeure
- Notwithstanding any provision to the contrary in these Conditions, Pixl Evolution is not liable towards the Customer for any loss or damage the Customer may suffer as a direct or indirect consequence of the fact that the delivery of the Goods, Services and/or Equipment by Pixl Evolution is hindered or delayed or made impossible, substantially more difficult, more expensive or unprofitable due to circumstances or events outside the reasonable control of Pixl Evolution, including (but not limited to) pandemics or epidemics, acts of god, war, riot, strike (including within the company Pixl Evolution), lockout, trade disputes or labour riots, accident, breakdown of plants or machines, fire, flood, storm, difficulties or increased costs for finding labour forces, material, raw materials or transportation (each being a Force Majeure Event).
- As long as the force majeure continues, the obligations of Pixl Evolution under the Agreement will be suspended. In case the force majeure continues for more than 30 days, both parties have the right to terminate the Agreement.
- If Pixl Evolution had already partly met its obligations when the force majeure event occurred, or if Pixl Evolution can only meet its obligations in part, it has the right to invoice the part that has already been performed and/or the part that can still be performed separately and the Customer is held to pay such invoice as if it were a separate Agreement. This does, however, not apply if the part that has already been performed and/or can still be performed does not have an independent value of its own.
Article 14. Insurance
- As a precondition to the delivery of any Equipment, all Customers are required to provide Pixl Evolution with a certificate of insurance evidencing the coverage required by this Article and naming Pixl Evolution (and where applicable and notified by Pixl Evolution acting reasonably, their managers, members, officers, employees, agents and affiliates) as additional insureds with respect to general liability insurance and loss payees with respect to property insurance to cover all Equipment (even when it is under the custody and/or control of Pixl Evolution in the provision of Services). The limits of property insurance shall not be less than the full replacement value of any and all items as listed on the quote, rental contract, Order or invoice regarding the Equipment. Minimum limits for liability insurance are 1,000,000/claim, and 2,000,000 aggregate. All Customer policies shall be primary and non-contributory over any insurance policies carried by Pixl Evolution. The Customer further waives all rights of subrogation, and the Customer agrees that insurance required of Customer hereunder does not, and will not, give the insurer any recourse or rights of subrogation against Pixl Evolution or its affiliates.
- In the event of any claim being made by Customer against Pixl Evolution, Pixl Evolution may in its sole discretion, without admission of liability or responsibility, reimburse the Customer for the cost of Pixl Evolution’s services or the material damaged or destroyed, in which event Pixl Evolution shall have no further liability. Any claim for such reimbursement must be made by written notice to Pixl Evolution within thirty (30) days after delivery of such property to Customer or its designee or notice of its loss or damage, whichever is sooner. All property delivered to Pixl Evolution may be moved or kept at such place or places as Pixl Evolution may deem desirable, and there is no promise or representation, express or implied, that such property delivered for any purpose will be retained or kept at Pixl Evolution’s premises or at any other designated place.
Article 15. Entire Agreement
- The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Order or these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Agreement.
- Nothing in this Article shall limit or exclude any liability for fraud.
Article 16. Waiver
Any waiver, whether express or implied, or the breach of any term, condition, or provision herein shall not be construed to be a continuing waiver or consent to a subsequent breach on the part of the other party hereto.
Article 17. Assignment
The Customer may not assign its rights or obligations hereunder. Pixl Evolution may assign their rights and obligations hereunder, and Pixl Evolution shall have the right to subcontract or assign the performance of any or all of its obligations hereunder. The rights and obligations hereunder shall inure to the benefit of and shall be binding upon the respective heirs, personal representatives, successors, and assigns of the parties hereto.
Article 18. Applicable Law
- The construction, validity and performance of the Agreement and all non-contractual obligations arising from or connected with the Agreement shall be governed by English law and the parties hereby submit irrevocably to the exclusive jurisdiction of the English courts to resolve any dispute between them. The UN Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
- Without prejudice to any other provision of these terms and conditions, any claims by the Customer arising out of, or in connection with, these terms and conditions or any offer, order or Agreement thereunder will in any event become timebarred after expiration of one (1) year as from the date of performance of the delivery and/or service.
Chapter II – Special Provisions Applicable to Sale, Contracting, Rental, Services and Repairs
Article 19. Sale and Contracting of Work
- The Goods remain the property of Pixl Evolution until complete and final payment of the Fees, including all transportation charges, taxes and late payment interests. Until such time as final payment is received by Pixl Evolution in full: (i) Pixl Evolution reserves the right at all times to repossess the Goods, regardless of partial payments already made by the Customer; (ii) the Customer shall carefully store the Goods as to be identifiable as the property of Pixl Evolution and keep the Goods insured at its own expense; and (iii) the Customer shall not sell, assign or otherwise or transfer the Goods to any other person or modify or make any amendments or additions to the Goods (or allow any other person to do so.) Pixl Evolution and/or its representatives have the right to access the premises (of the Customer or of third parties) where the Goods are located in order to repossess the Goods in accordance with the provisions of this Article if the Customer does not meet its obligations. The Customer must provide its cooperation to that end.
- Pixl Evolution is not liable for visible defects that the Customer has observed or should reasonably have observed at the time of delivery. In order to be admissible, complaints with regard to visible defects have to be notified by the Customer in writing immediately within one (1) calendar day as from delivery, and in any case before any use of the Goods. All other complaints with regard to the Goods sold have to be notified in writing to Pixl Evolution within eight (8) calendar days as from delivery.
- For assignments involving Services in whole or in part, the completion takes place tacitly when delivered in whole or in part and put into use without any reservations, or when the Customer or third parties perform works on the delivered Goods themselves or put these into use without any reservations. The acceptance by completion covers all visible defects. Given the nature of the work and the activities of Pixl Evolution, the completion of the contracted works take place in one phase, which is immediate and final.
- Pixl Evolution is only liable for the actions of its subcontractors to the extent that it has sole control over the choice of subcontractor and instructions given to the subcontractors. As soon as Pixl Evolution cannot freely choose the subcontractor, or as soon as it appears during the works that the Customer provides instructions directly to the subcontractor, Pixl Evolution will no longer have any liability to the Customer in this regard, so that subsequent invoices issued by Pixl Evolution in respect of work performed by this subcontractor(s), if any, should be considered as the technical processing by Pixl Evolution of fees for work performed by the subcontractor at Customer’s request. The Customer cannot make compliance with its own obligations towards Pixl Evolution under the Agreement dependent on documents, data or calculation methods that concern the subcontracting agreement, unless expressly agreed otherwise. The Customer is responsible for the location of delivery and the utilities (such as electricity, water and heating).
- With respect to any breach by Pixl Evolution of the Agreement caused by a supplier or sub-contractor of Pixl Evolution, without prejudice to any other provision of these Conditions (including Article 11), Pixl Evolution’s maximum aggregate liability in connection with such breach shall be limited to the amount that Pixl Evolution is able to recover from the applicable supplier or subcontractor in connection with the same.
- For the sale of second-hand Goods (see second hand trader platform), the Customer buys the goods “as is” in the state they are in, and there are no conditions, warranties, representations or terms, express or implied, that are binding on Pixl Evolution except as specifically stated or contemplated in the Order and accepted by Pixl Evolution into the Agreement. Any condition, warranty, representation or term which might otherwise be implied into or incorporated in the Agreement whether by statute, common law or otherwise, is hereby expressly excluded.
Article 20. Rental and Services (Finished Productions)
In this Article the Customer means “the Lessee” and Pixl Evolution means the “Lessor”:
- In relation to any Equipment, if the Lessor cannot meet its delivery obligations, for whatever reason, the Lessor will inform the Lessee thereof as soon as practically possible and will suggest potential alternatives. If these alternatives are not accepted by the Lessee, the Lessee will only have the right to terminate the Agreement without incurring any further charges. Any further liability or compensation from the Lessor is excluded.
- The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on delivery in accordance with Article 6 (2). The Equipment shall remain at all times the property of Pixl Evolution or of its affiliates as the case may be. The Lessee will only use the Equipment for the purpose the Equipment is manufactured for. The Lessee warrants to the Lessor that it is familiar with the functioning of the Equipment. The Lessee will treat the Equipment in a proper manner and will ensure they are stored in proper and safe conditions.
- The period of hire of the Equipment starts at the point of delivery in accordance with Article 6 (2) and shall continue for the period set out in the Order unless this Agreement is terminated earlier in accordance with its Conditions.
- The Lessee is liable at all times for damage to, loss or theft of, the Equipment until such goods are returned to the warehouse of the Lessor. The Lessee will promptly report any damage to or loss of the Equipment to the Lessor and will return such Equipment immediately to the Lessor. The Lessee will also immediately report any case of theft or vandalism to the police of the place where the theft or vandalism has taken place and will provide a copy of such report to the Lessor. The Lessee will compensate the Lessor for the costs of repair or replacement of the Equipment and for the loss of rental profits during the period required for repair or replacement, to the extent such period exceeds the rental period agreed and paid for by the Lessee. The Lessee will insure the Equipment against damage and loss (including theft) for such time as the Equipment are deemed delivered (as detailed in Article 6 above) and up until return to the Lessor in accordance with Article 20 (3). The Lessor can require the Lessee to provide a copy of the insurance policy and evidence that it is up to date with payments thereunder. If the Lessee does not take out appropriate insurance (or fails to demonstrate this to the Lessor), or in case the Lessee requests the Lessor to do so, the Lessor or any of its affiliates may take out insurance to cover the risks of accidental damage to, loss or theft of the Equipment, and shall be entitled to recharge such cost to Lessee.
- The Lessee is personally responsible for all damage caused to third parties by materials of the Lessor, regardless of their condition. The Lessee will insure itself against such damage caused by its own actions or defects in the Equipment.
- The Lessee will at all times allow the Lessor or its authorized representative to access the buildings or estates where the Equipment is or are located, in order to inspect the presence and/or condition of the Equipment. The Lessor has the right at all times to remove the Equipment from the Lessee or its holder thereof if the Lessee does not comply with its obligations under the Agreement or these Conditions. The Lessee will provide its cooperation to that end.
- All Equipment has been inspected in accordance with United Kingdom legislation. The Lessee is personally responsible for all necessary inspections on site and all licenses and/or authorizations regarding the use of the Equipment.
- The Lessee must verify that the Equipment is delivered to it in good condition. The acceptance of Equipment by the Lessee or its transporter without including any remark on the bill of lading, or the receipt, or any other form of confirmation of receipt, serves as proof that the consignment is delivered complete and in good external condition.
- Every malfunction of the Equipment must be reported immediately to the Lessor in order for the complaint to be admissible.
- All Equipment must be returned to the Lessor in their original condition: repairs, renovations or other modifications applied by the Lessee or third parties to the goods are expressly prohibited without the prior written consent of the Lessor, and every potential damage and/or costs resulting therefrom will be the liability of and recovered from the Lessee.
- Late return of the Equipment is at all times charged to the Lessee and increased with the costs resulting therefrom.
- Unless otherwise agreed in advance and in writing, the early return of the Equipment by the Lessee prior to the end of the applicable rental period of the Equipment does not affect the Customer’s obligation to pay the full Fees for the entire rental period.
- Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
- The Lessor can demand a separate security deposit upfront from the Lessee and reserves the right to off-set-overdue rents, repair fees and all other costs that the Lessor may incur due to the Lessee’s actions against the deposit, as well as any costs for repairs and/or cleaning of the Equipment upon its return.
- The same conditions as specified in this Article 20 apply to finished productions (including services and the provision of staff by the Lessor).