T E R M S AN D C O N D I T I O N S
Article 1. Definitions
Agreement the agreement between PixelPool and the Client, consisting of in
an Order Form and these terms and conditions;
Client: the company that has agreed upon an Order Form with PixelPool;
Deliverables: the fully designed and rendered 3D-models to be provided to Client
as a result of the Services;
IP Rights: all intellectual property rights and ancillary rights, such as
copyrights, trademark rights, patent rights, design rights, trade
name rights, database rights and know-how;
Order Form: an order form agreed upon by the Parties, in which the nature of
the Services is further described;
Parties: PixelPool and Client jointly;
Pixelpool: the PixelPool entity described in the Order Form, being either
Pixelpool B.V., PixelPool Inc, Pixelpool Ltd or PixelPool Zoo;
PixelPool Elements pre-existing 3D-models that may be used from time to time in
providing the Services to Client;
Services: all services of whichever nature and under whichever name that
PixelPool provides to the Client, including – but not limited to – the
services specified in one or more Order Forms;
Article 2. Applicability
2.1 These Terms and Conditions are applicable to all Agreements, all other legal acts of
Pixelpool, all legal relationships between Parties and all offers and agreements whereby
Pixelpool offers or provides Services to the Client.
2.2 Deviations from and additions to these Terms and Conditions are only valid if agreed upon
by the Parties in writing.
2.3 The applicability of purchasing conditions or other general conditions of Client is expressly
rejected.
2.4 If any provision of these Terms and Conditions is void or voidable or is or becomes entirely
or partly invalid for any other reason, the other provisions of these Terms and Conditions
will remain in full force and effect. PixelPool will replace the invalid provision with a provision
that is valid and of which the legal consequences, having regard to the content and purpose
of these Terms and Conditions, correspond as far as possible with those of the invalid
provision.
Article 3. Agreement
3.1 Offers by PixelPool are without obligation and should be regarded as an offer to enter into
an agreement, unless otherwise indicated by PixelPool in writing.
3.2 Offers become invalid after the expiry of four weeks from the date they were made, unless
otherwise indicated in writing.
3.3 An Agreement will come into existence at the first occurrence of the following events:
signature by both Parties of an Order Form; or when PixelPool commences the
performance of the Services.
3.4 Client warrants the accuracy and completeness of the information provided to PixelPool by
or on his behalf and upon which PixelPool bases its offer. If this information proves to be
inaccurate or incomplete, PixelPool will have the right to amend the offer or to terminate
the Agreement with immediate effect and without becoming liable towards the Client for
such termination.
3.5 Amendments or additions to agreed Services at the request of the Client will only have
effect after the written consent of PixelPool. Pixelpool is not obliged to implement an
amendment or addition and may require a separate Order Form to be concluded in respect
thereof.
3.6 Amendments or additions upon the request of the Client that result in a change of the scope
of the Services, will be paid for by the Client in accordance with the rates of PixelPool at
the time of performance of the additional Services. In so far as a fixed price has been
agreed for the Services, PixelPool will inform the Client on the financial consequences of
the additional Services.
3.7 All Services will be provided by PixelPool on the basis of a best efforts obligation, unless
and to the extent that PixelPool has expressly guaranteed a specific result in the
Agreement.
3.8 The date and time of performance of the Services depend on various factors and
circumstances, such as the timely and accurately providing of information by the Client, the
cooperation of the Client and relevant third parties. Stated delivery dates are therefore not
fatal deadlines, unless the Parties have expressly agreed otherwise in the Order Form.
3.9 Client accepts that additions or amendments to the Agreement may influence the time of
completion of the Services and the reciprocal responsibilities of PixelPool and the Client
under the Agreement.
3.10 If the Service is rendered in phases, PixelPool will be entitled to postpone the performance
of Services of any phase until Client has approved the results of the preceding phase in
writing.
Article 4. Obligations of the Client
4.1 The Client must fully, properly and promptly make available to PixelPool (upon first request
by PixelPool) all data, documents, information, software, materials or employees, and give
all cooperation deemed necessary or desirable for the performance of the Services, before
as well as during the performance of the Services.
4.2 During and after the Agreement, Client will not publicly make any negative statements
regarding PixelPool or its Services or otherwise take any actions in this respect that may
harm the name and reputation of PixelPool.
4.3 If the Client does not promptly or fully comply with the obligations stated in this article,
Pixelpool will be entitled to suspend the implementation of the Agreement (in full or in part)
and/or charge the Client any additional costs according to the current standard rates of
PixelPool. This will be without prejudice to the right of PixelPool to exercise any other legal
and/or agreed right.
Article 5. Price and payment
5.1 Unless stated otherwise all amounts mentioned by PixelPool are in Euros and exclusive of
turnover tax (VAT) and other levies/taxes.
5.2 Unless expressly stated otherwise cost estimates and budgets will only serve for purposes
of information and no rights or expectations can be derived therefrom. PixelPool will only
be obliged to inform the Client when a cost estimate or budget has been exceeded if the
Parties have so agreed.
5.3 PixelPool will be entitled to adjust the applicable prices and rates upon written notice of at
least one month. PixelPool will in any event have the right to adjust prices in one of the
following events: i) increase of taxes or other levies, ii) changing exchange rates, iii)
increase of wages, transport costs and/or purchase prices.
5.4 Invoicing details are specified in the Order Form. Payments must be made within 14 days
of the invoice date, unless otherwise agreed in writing or otherwise stated on the invoice.
5.5 If after the expiry of this period payment (in full) has not yet been received by PixelPool, the
Client will immediately be in default without prior demand or notice of default being
required. As from the time of default the Client will be liable for interest equal to the statutory
commercial interest rate.
5.6 If the Client despite demand or notice of default still fails to pay the claim, PixelPool may
hand over the claim for collection. In that event all costs incurred by PixelPool in connection
with overdue payments, such as legal costs and extra-judicial and judicial costs, including
the costs of legal assistance, bailiffs and collection agencies, will be paid by the Client. The
extra-judicial costs are fixed at no less than 10% of the invoiced amount subject to a
minimum of €250 excluding VAT.
5.7 Complaints in relation to invoices and/or the Services will not suspend the payment
obligations of the Client.
5.8 PixelPool will be entitled to suspend the fulfilment of its obligations until such time as the
Client has fully complied with all its due obligations.
Article 6. Duration and termination
6.1 Unless otherwise agreed, the term of the agreement is specified in the Order Form. Upon
expiry of the agreed term, the Agreement will be automatically extended for the same
period as the original term, unless the Client terminates the agreement in writing by written
notice three months prior to the end of the then current term.
6.2 In case of an attributable breach of the Agreement by the Client, PixelPool may at all times
terminate the agreement with immediate effect and without becoming liable towards Client
for such termination.
6.3 Each Party will be entitled to terminate the agreement in full or in part in the event of the
other Party being declared bankrupt or granted a moratorium, as well as in the event of the
closing down or liquidation of the business of the other Party other than for purposes of
reconstruction or merger of enterprises, or if the controlling interest in the company of the
other Party changes.
6.4 In the event of termination of the agreement, there will be no reversal or cancellation of that
which Pixelpool has already delivered and/or carried out nor the related obligation to make
payment, unless the Client proves that PixelPool is in material default in respect of that part
of the performance. Amounts invoiced by PixelPool prior to termination in respect of that
which Pixelpool has already performed or delivered properly in accordance with the
agreement will remain payable in full subject to the provisions of the preceding sentence
and will become due and payable at the time of the termination.
6.5 If the agreement ends for any reason whatsoever, all rights which the Client enjoyed under
the terms of the agreement, including – but not limited to – any right to use results and/or
deliverables, will terminate at the same time, unless expressly agreed otherwise in an
Order Form. Immediately following the ending of the agreement the Client will delete from
its systems and return to Pixelpool all copies of such results and/or deliverables developed
and/or provided by PixelPool under the terms of the Agreement.
Article 7. IP Rights and licence
7.1 PixelPool will retain all rights and interest, including any IP Rights, to the PixelPool
Elements. The Agreement does not grant the Client any IP Rights to the PixelPool
Elements. Client will obtain a limited, personal and non-exclusive license to use the
PixelPool Elements in so far as necessary to use the Deliverables.
7.2 Client may not independently reproduce or use the Pixelpool Elements for any purpose
other than its own commercial use. Client may not provide the PixelPool Elements to third
parties for further development and/or use.
7.3 PixelPool will always be free to use the underlying ideas, designs and/or schematics of
Deliverables for its own business purposes.
7.4 PixelPool may introduce technical facilities (or cause such facilities to be introduced) for
the protection of the software, files, equipment or materials regarding an agreed restriction
to the content or the duration of the right of use. The Client will not be permitted to remove
or bypass any such a technical facility (or cause it to be removed or bypassed).
7.5 If and to the extent that PixelPool makes use of materials of the Client during the
performance of the Services, the Client guarantees that it is authorized to grant PixelPool
access to and the right to use such software, files, equipment or materials for the purpose
of providing the Services. The Client indemnifies PixelPool against all damage and costs
which PixelPool suffers or incurs as a result of a claim of a third party in respect of such
use.
Article 8. Indemnities and warranties
8.1 The Client is responsible for its use of the Deliverables. Client will never use the
Deliverables in violation of applicable law and/or legislation. PixelPool does not guarantee
the correctness, integrity, reliability or completeness of any result or consequence of the
Services.
8.2 PixelPool will not be liable for damages or costs due to transmission errors, failures or nonavailability of computer, data or telecommunication facilities, including Internet.
8.3 Client warrants the accuracy and completeness of the information provided to PixelPool by
or on his behalf, both before entering into the agreement and during the term thereof, and
upon which Pixelpool bases the performance of the Services.
8.4 The Client guarantees that there are no rights of third parties which preclude making
information, data or other materials available to Pixelpool for the purpose of use,
adaptation, installation or incorporation by Pixelpool. The Client indemnifies PixelPool
against all damage and costs which PixelPool may suffer or incur due to a claim by a third
party based on the allegation that such making available, use, adaptation, installation or
incorporation infringes any right of that third party.
8.5 If PixelPool allocates access or identification codes to the Client in the context of the
Service, the Client will at all times treat such codes confidentially and prudently and only
make them known to authorized members of staff. PixelPool will not be liable for damage
or costs resulting from the use or abuse of access or identification codes.
8.6 The Client indemnifies PixelPool against all damage and costs, including – but not limited
to – damage resulting from (alleged) infringements of IP Rights, claims by third parties
(including (semi-)governmental authorities), collection costs, the statutory commercial
interest, loss of profits, penalties incurred and legal fees, which PixelPool incurs or which
result from (i) attributable breach of the agreement by the Client, (ii) any action of the Client
in the performance of this agreement or (iii) an unlawful act.
Article 9. Liability
9.1 The aggregate, maximum, total liability of PixelPool due to an attributable breach of its
obligations under the Agreement and/or on account of an unlawful act will be limited to
compensation for direct damage suffered by the Client and will in no event exceed the total
amount of all invoices paid by Client to PixelPool under the relevant Order Form under
which the liability has occurred.
9.2 Direct damage is understood to mean exclusively:
a. reasonable costs which the Client would need to incur to make the performance of
PixelPool correspond to the agreement; such damage will however not be
compensated if the agreement is terminated by the Client;
b. reasonable costs incurred in assessing the cause and the extent of the damage, in
so far as the assessment is related to direct damage as referred to in this
agreement;
c. reasonable costs incurred in preventing or limiting damage, in so far as the Client
proves that such costs led to a limitation of direct damage as referred to in this
agreement.
9.3 Any liability of PixelPool for damage other than direct damage (“indirect damages”),
including – but not limited to – consequential damages, loss and/or damage of data,
unavailability or non-performance of software, hardware and/or other ICT infrastructure,
loss of profits and lost sales, will be excluded.
9.4 The restrictions mentioned in the preceding paragraphs of this article will not apply if and
in so far as the damage is the result of intentional or willful recklessness on the part of
PixelPool or its managers (“own actions”).
9.5 The liability of PixelPool due to an attributable breach of the agreement will in all instances
arise only if the Client immediately gives proper written notice of default, whereby a
reasonable period within which the attributable breach may be remedied is stipulated, and
PixelPool after this period still fails in the performance of its obligations, except in the case
of lasting attributable failure. The notice of default must contain a description of the breach
that is as complete and detailed as possible, to enable PixelPool to respond adequately.
9.6 A condition for the creation of a right to damages will always be that the Client must report
the damage to PixelPool in writing as soon as possible after it arises. Any claim for damages
against PixelPool will lapse by the mere expiry of a period of 12 months from the inception
of the claim.
Article 10. Force majeure
10.1 Neither party is liable to perform any obligation, including any warranty obligation agreed
between the Parties, if prevented therefrom by force majeure.
10.2 Force majeure is taken to mean inter alia:force majeure affecting suppliers of Pixelpool;
failure by suppliers prescribed by the Client to PixelPool to perform obligations properly;
defects in objects, equipment, software or materials of third parties, use of which has been
prescribed by the Client to PixelPool; government measures; power failure; failure of
Internet, computer network or telecommunication facilities; war; sit-in; strike; general
transport problems; and non-availability of one or more members of staff, including but not
limited due to illness.
10.3 In the event of force majeure PixelPool will be entitled to suspend its obligations under the
terms of the agreement, or to terminate the agreement in full or in part, without incurring
any liability for damages towards the Client.
10.4 If a force majeure situation continues for longer than 6 months, the Client will be entitled to
terminate the agreement in writing, without PixelPool incurring any liability for damages.
Article 11. Confidentiality and acquisition of staff
11.1 The Client will ensure that all information received from PixelPool – including data, designs,
documentation and software – which the Client knows or should reasonably know to be of
a confidential nature, remains confidential. The Client will only use this information for the
purpose for which it was provided. The Client will take all necessary measures to protect
the confidential character of confidential information in the same manner and to the same
degree as the confidential information of the Client itself.
11.2 The Client will not be entitled during the term of the agreement nor for a period of one year
after the end thereof to employ an employee of PixelPool who is (was) involved in the
implementation of the agreement or to otherwise use his services, directly or indirectly,
unless PixelPool has expressly consented thereto in writing.
Article 12. Miscellaneous
12.1 The Client is not entitled to transfer rights and/or obligations arising from the agreement to
a third party.
12.2 Pixelpool is entitled to transfer its claims to payment of fees or any other amounts (including
but not limited to damages) to a third party. Pixelpool is furthermore entitled to involve third
parties in the performance of the Services.
12.3 The agreements between PixelPool and the Client will be subject to Dutch law. The
applicability of the UN Convention on the International Sale of Goods (CISG) is excluded.
Any and all disputes arising from or related to agreements between the Parties, will be
brought before the competent court in The Hague, the Netherlands.
