PIXEL BBQ LIMITED SOFTWARE AS A SERVICE TERMS AND CONDITIONS
(A) Pixel BBQ Limited trading as Agency247 (Company No: 09632740) of Dunston Innovation Centre, Dunston Road, Chesterfield, S41 8NG (“Pixel BBQ”) has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-account per month basis for the purposes of digital content storage, dissemination, job management and procurement.
(B) The Customer wishes to use Pixel BBQ’s service in its business operations.
(C) Pixel BBQ has agreed to provide, and the Customer has agreed to take and pay for, Pixel BBQ’s service subject to the terms and conditions of this agreement.
(1.1) The definitions and rules of interpretation in this clause apply in this agreement.
Account Subscriptions: the Account Subscriptions purchased by the Customer pursuant to clause 7.1 which entitle Authorised Users to access and use the Services in accordance with this agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: the commencement date stated by the Order Request.
Confidential Information: information that is proprietary or confidential and identified as Confidential Information in clause 9.
Customer: means the customer as set out in the Order Request.
Customer Contact: means the contact named in the Order Request who is authorised to enter into this agreement on behalf of the Customer.
Customer Data: the data inputted or uploaded by the Customer, Authorised Users, or Pixel BBQ on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Number of Users: means the number of users of the Service as set out in the Order Request.
Order Request: means any request by the Customer to receive the Services or upgrade the Services provided by Pixel BBQ which sets out the commercial terms of the order.
Parties: means the Pixel BBQ and the Customer.
Payment Terms: means the payment terms as set out in the Order Request.
Services: the subscription services and associated documentation provided by Pixel BBQ to the Customer under this agreement via [[brand name]] or any other website / brand operated by and notified to the Customer by Pixel BBQ from time to time.
Software: the online software applications provided by Pixel BBQ as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Pixel BBQ for the Account Subscriptions, as set out in the Order Request.
Subscription Term: has the meaning given in the Order Request.
Support Services Policy: Pixel BBQ’s policy for providing support in relation to the Services as made available at [[brand name]] or any other website / brand operated by Pixel BBQ as may be notified to the Customer from time to time.
User Account: access account including a user ID and password supplied by Pixel BBQ for the purposes of accessing the Services.
Virus: any, thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Pixel BBQ Invoice: any invoice raised by Pixel BBQ to the Customer for the provision of the Services.
2. Account Subscriptions
(2.1) Subject to the Customer purchasing the Account Subscriptions in accordance with clause 7.1, the restrictions set out in this clause 2, the Customer providing valid email addresses for the Authorised Users, and the other terms and conditions of this agreement, Pixel BBQ hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations.
(2.2) In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number defined by the Account Subscriptions it has purchased from time to time;
(b) it will not allow any User Account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;
(d) If Pixel BBQ determines that the Customer has underpaid Subscription Fees to Pixel BBQ as a result of a breach of clause 2.2 (a) and 2.2 (b), then without prejudice to Pixel BBQ’s other rights, the Customer shall pay to Pixel BBQ an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Request within 10 Business Days of the date of the relevant audit.
(2.3) The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Pixel BBQ reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
(2.4) The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means;
(ii) or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide competing services to third parties; or
(d) subject to clause 20.1 (or unless specifically permitted in writing by Pixel BBQ), license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and
(2.5) The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Pixel BBQ.
(2.6) The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
(3.1) Pixel BBQ shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
(3.2) Pixel BBQ shall use commercially reasonable endeavours to make the Services available during Normal Business Hours.
(3.3) Pixel BBQ will, as part of the Services and at no additional cost to the Customer, provide the Customer with Pixel BBQ’s standard customer support services during Normal Business Hours in accordance with Pixel BBQ’s Support Services Policy in effect at the time that the Services are provided. Pixel BBQ may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Pixel BBQ’s then current rates.
4. Customer data
(4.1) The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
(4.2) Pixel BBQ shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Pixel BBQ to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Pixel BBQ. Pixel BBQ shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Pixel BBQ to perform services related to Customer Data maintenance and back-up).
(4.3) If Pixel BBQ processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Pixel BBQ shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Pixel BBQ’s other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Pixel BBQ so that Pixel BBQ may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5. Pixel BBQ’s obligations
(5.1) Pixel BBQ undertakes that the Services will be performed substantially in accordance with the Order Request and with reasonable skill and care.
(5.2) The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Pixel BBQ’s instructions, or modification or alteration of the Services by any party other than Pixel BBQ or Pixel BBQ’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Pixel BBQ will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, Pixel BBQ:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(5.3) This agreement shall not prevent Pixel BBQ from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
(5.4) Pixel BBQ warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
6. Customer’s obligations and licence
(6.1) The Customer shall:
(a) provide Pixel BBQ with:
(i) all necessary co-operation in relation to this agreement;
(ii) all necessary access to such information as may be required by Pixel BBQ;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Pixel BBQ may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Pixel BBQ, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Pixel BBQ from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Pixel BBQ’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
(6.2) The Customer hereby grants a perpetual, royalty-free licence to Pixel BBQ to use any Customer Data for the purpose of delivering the Services to the Customer under the terms of this agreement.
7. Charges and payment
(7.1) The Customer shall pay the Subscription Fees to Pixel BBQ for the Account Subscriptions in accordance with this clause 7 and the Order Request.
(7.2) Unless otherwise agreed between the Parties, Pixel BBQ shall invoice the Customer on or after the Commencement Date for the Subscription Fees payable in respect of the Subscription Term and the Customer shall pay each invoice within the Payment Terms.
(7.3) If Pixel BBQ has not received payment within 10 days after the Pixel BBQ Invoice due date, and without prejudice to any other rights and remedies of Pixel BBQ:
(a) Pixel BBQ may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Pixel BBQ shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Pixel BBQ’s bankers in the UK from time to time, commencing on the Pixel BBQ Invoice due date and continuing until fully paid, whether before or after judgment.
(7.4) All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling unless otherwise specified in the Order Request;
(b) are, subject to clause 11.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Pixel BBQ’s invoice(s) at the appropriate rate.
(7.5) Pixel BBQ shall be entitled to vary the Subscription Fees and the fees payable upon 30 days’ prior notice to the Customer and the Order Request shall be deemed to have been amended accordingly.
8. Proprietary rights
(8.1) The Customer acknowledges and agrees that Pixel BBQ and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
(8.2) Pixel BBQ confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
(9.1) Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
(9.2) Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party (apart from any consultants appointed by Pixel BBQ to fulfil the Service), or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
(9.3) Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
(9.4) Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
(9.5) Pixel BBQ acknowledges that the Customer Data is the Confidential Information of the Customer.
(9.6) This clause 9 shall survive termination of this agreement, however arising.
(9.7) No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
(10.1) The Customer shall defend, indemnify and hold harmless Pixel BBQ against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Pixel BBQ provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
(10.2) Pixel BBQ shall defend the Customer, its officers, directors and employees against any claim that the Services infringe any patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Pixel BBQ is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Pixel BBQ in the defence and settlement of such claim, at Pixel BBQ’s expense; and
(c) Pixel BBQ is given sole authority to defend or settle the claim.
(10.3) In the defence or settlement of any claim, Pixel BBQ may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
(10.4) In no event shall Pixel BBQ, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Pixel BBQ; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by Pixel BBQ; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from Pixel BBQ or any appropriate authority.
(10.5) The foregoing and clause 11.4(b) states the Customer’s sole and exclusive rights and remedies, and Pixel BBQ’s (including Pixel BBQ’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
(10.6) The Customer shall indemnify Pixel BBQ against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Pixel BBQ arising out of or in connection with any claim made against Pixel BBQ for actual or alleged infringement of a third party’s intellectual property rights, actual or alleged defamation, or otherwise, arising out of or in connection with use of the Customer Data by Pixel BBQ in the course of providing the Services.
11. Limitation of liability
(11.1) This clause 11 sets out the entire financial liability of Pixel BBQ (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Services or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
(11.2) Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Pixel BBQ shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Pixel BBQ by the Customer in connection with the Services, or any actions taken by Pixel BBQ at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an “as is” basis.
(11.3) Nothing in this agreement excludes the liability of Pixel BBQ:
(a) for death or personal injury caused by Pixel BBQ’s negligence; or
(b) for fraud or fraudulent misrepresentation.
(11.4) Subject to clause 11.2 and clause 11.3:
(a) Pixel BBQ shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) Pixel BBQ’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to 50% of the total Subscription Fees paid for the Account Subscriptions during the 6 months immediately preceding the date on which the claim arose subject to a maximum figure of £1,000,000.
12. Term and termination
(12.1) This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Commencement Date and shall continue for the Subscription Term and, thereafter, this agreement shall continue until either party provides the other party with twenty-four (24) hours notice of termination, unless otherwise agreed in the Order Request:
(12.2) Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 20 days after being notified in writing to do so;
(c)the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(g) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(i) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(c) to clause 12.2(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(l) any warranty given by Pixel BBQ in clause 5.4 of this agreement is found to be untrue or misleading.
(12.3) On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(c) Pixel BBQ may in its discretion destroy or otherwise dispose of any of the Customer Data in its possession.
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
13. Force majeure
Pixel BBQ shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Pixel BBQ or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Pixel BBQs or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Order Request, the provisions in the Order Request shall prevail.
No variation of this agreement shall be effective unless it is in writing and accepted by the parties (or their authorised representatives). For the avoidance of doubt, agreement by email shall constitute an agreement in writing.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
(18.1) If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
(18.2) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
19. Entire agreement
(19.1) This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
(19.2) Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
(20.1) The Customer shall not, without the prior written consent of Pixel BBQ, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
(20.2) Pixel BBQ may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
(23.1) Any notice required to be given under this agreement shall be in writing and shall be delivered by email to the Pixel BBQ, by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Request, or such other address as may have been notified by that party for such purposes.
(23.2) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
24. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).