Terms & Conditions
1. SCOPE AND INTERPRETATION:
1.1. The terms and conditions set forth herein (hereinafter, the “Terms”), shall govern your use of the ‘Appixels.com’ website (hereinafter, the “Website”) and shall apply to all agreements for the sale of the services listed in Schedule 1 to these Terms(hereinafter, the “Services”) rendered by Appixels and/or by any of its affiliates, subsidiaries, partners, officers, directors, employees, agents, co-branders or otherwise the representatives thereof, (hereinafter, “ Appixels .”) entered into by means of the procedure set forth in Clauses 3.2 and 3.3.
1.2. The term Purchaser shall mean any individual or legal person or entity, which is the addressee of an Engagement Contract (as defined in Clause 3.2.) or otherwise any individual, legal person orentity who contracts with Appixels for the purchase of the Services. The term User shall mean any individual, legal person or entity who uses, accesses or otherwise simply visits the Website. Collectively, herein the terms Purchaser and User are referred to as “You”, “Your” or “Yours”.
2. ENTIRE AGREEMENT
2.1. These Terms, together with the Engagement Contract and Appixels ’s Refund Policy (accessible here) (hereinafter, the “Refund Policy”), as well as the annexures or schedules thereto, shall constitute the entire arrangement, agreement and understanding between you and Appixels , regarding the sale of Services, and supersedes any previous agreement, express or implied, between you and Appixels in relation to the matters referred herein.
2.2. Any term, condition or provision, included but not limited to any terms and conditions set forth in any Engagement Contract or in another document issued by you or by Appixels in connection with the purchase of the Services, which conflict with, modify or are in addition to these Terms, shall not be applicable, unless they have been expressly signed and accepted by Appixels. To this effect, it is expressly stated that there are no promises, terms, conditions, oral or written, express or implied, other than the terms and conditions set forth in these Terms, and in its case, in the Refund Policy and the Engagement Contracts.
2.3. Any general conditions of the Purchaser not included in the Engagement Contract shall not apply in any event and shall be deemed to have been excluded and expressly rejected by Appixels .
3. CONTRACTUAL FORMALIZATION PROCEDURE
3.1. The agreement for the sale of Services by Appixels to the Purchaser shall be formalized by means of the procedure set forth in Clauses 3.2 and 3.3.
3.2. After Appixels’s sales team has duly ascertained and understood the requirements of the Purchaser, Appixels shall send to the Purchaser an individual engagement contract (referred to herein as the “Engagement Contract”) which shall include, among others:
i) The date of contract;
ii) Identifying information of the Purchaser (Name/Address/Number/Email);
iii) The specific type and quantity of Services required by the Purchaser;
iv) The format for delivery (if applicable);
v) A reference of these Terms and the Refund Policy and their applicability to the sale of Services, as well as links to the Website that contain these Terms and the Refund Policy.
3.3. Prior to, upon or after receiving the Engagement Contract, the Purchaser shall, by electronic means, send an acknowledgement and acceptance of these Terms and the Refund Policy to the email as indicated by Appixels. If after receiving the Engagement Contract, the Purchaser makes any payment in respect of the Services to Appixels, in full or in part, the Terms and Refund Policy shall be deemed as acknowledged and accepted by the Purchaser. After receiving the payment from the Purchaser, Appixels shall send to the Purchaser, a brief form consisting of all the Services required under the Engagement Contract which may either be filled by Appixels’s sales team upon liaising with the Purchaser, or may be filled in by the Purchaser itself (hereinafter, “Brief Form”). Appixels shall commence work on the required Services only after the Purchaser has filled in, or otherwise provided the information to Appixels to fill in, the Brief Form.
3.4. These Terms along with the Refund policy shall be an integral and essential part of the Engagement Contract. You acknowledge that Appixels will only provide Services to you subject to your approval to these Terms and the Refund Policy.
3.5. Subject to the Refund Policy, Purchaser acknowledges that Appixels does not warrant any Service in the event the Purchaser does not fill in, or otherwise provide Appixels the information to fill in, the Brief Form within 7 days from payment. Purchaser further acknowledges that Appixels will not be responsible for providing Service if Purchaser goes unresponsive for a total of 14 calendar days after making payment. It is the Purchaser’s responsibility to communicate with and remain responsive to Appixels in a timely and proficient manner. Purchaser hereby warrants to provide Appixels with all requirements and information to be filled in the Brief Form.
4. INCORPORATION OF TERMS AND REFUND POLICY
4.1. These Terms and the Refund Policy shall be deemed incorporated to all Engagement Contracts and therefore applicable to the correspondent sale of Services to the Purchaser, provided that the existence of these Terms and the Refund Policy and their applicability to the sale of Services is stated in the Engagement Contract, and that Appixels gives access to the Terms and the Refund Policy by means of links to its web-page contained in the Engagement Contracts. Appixels may also attach links of the Terms and the Refund Policy on all invoices issued or sent to Purchasers.
5. ORDER CHANGES AND/OR CANCELLATION AND REFUNDS
5.1. Purchaser acknowledges that Appixels may incur costs and expenses in providing certain Services, and hereby expressly accepts to indemnify Appixels to the maximum extent permitted by law for all such costs and expenses incurred by Appixels in relation to providing such Services.
5.2. The Purchaser acknowledges that all amendments, cancellations or refunds of orders or Engagement Contracts shall only be made in accordance with the Refund Policy.
6. TECHNICAL REQUIREMENTS OF PURCHASER
6.1. All technical data, such as samples, drawings, technical requirements and specifications, designs, shapes and sizes relating to the Services, included in the documentation which is not incorporated or attached to the Engagement Contract and the Brief Form, shall be considered as no-binding approximate indications only, unless expressly confirmed as binding by Appixels .
6.2. All samples, drawings as well as technical requirements and specifications, designs, shapes and sizes relating to the Services, submitted by Appixels to the Purchaser by any means whatsoever, shall remain the property of Appixels protected by applicable intellectual property laws and shall not, without the written consent of Appixels , be used for any purpose other than the purpose for which they were provided, unless the Purchaser has paid Appixels in full, and the corresponding rights have been assigned or licensed to the Purchaser, as the case may be. The aforesaid samples, documents and technical requirements shall not be used or copied, reproduced, transmitted or communicated to a third-party, or be used for the manufacture, design or any other unauthorized purpose, without the express written consent of Appixels .
7. DELIVERY AND TRANSFER OF TITLE
7.1. Notwithstanding anything to the contrary contained herein, in the Individual Contracts or the Brief Forms, the title of the Services shall only be transferred to Purchaser after full payment of the purchase price.
8. DELIVERY TIME AND DELAY
8.1. The Services shall be delivered to the Purchaser under the terms specified in Engagement Contract.
8.2. Purchasers acknowledge that performance of the stipulated time for delivery is subject to the timely receipt by Appixels of any authorization, documents or requirements pertaining to the Services which Appixels may require for the purpose of providing the Services, including the Purchaser’s acknowledgement of acceptance to these Terms. Furthermore, performance of the stipulated time for delivery is subject to the timely fulfillment by the Purchaser of the agreed payment terms. Subject to the Refund Policy, In the event that the referred conditions are not fulfilled on time by the Purchaser, the delivery time shall be extended accordingly, and the Purchaser shall not be eligible for a refund.
8.3. If it becomes evident to Appixels that the Services cannot be delivered within the agreed delivery date for whatsoever reason, it shall inform the Purchaser as soon as it is reasonably possible. Notwithstanding, no damage, cost or liability shall be due or incurred by Appixels to the Purchaser as a consequence of any such delay in the delivery of the Services.
8.4. Appixels reserves the right to make partial deliveries, being the Purchaser obliged to accept such partial deliveries and to pay the Services delivered. Appixels shall use its best endeavor in order to deliver the Services to Purchaser with the shortest possible delay.
8.5. A delayed delivery of the Services under an Engagement Contract, shall not entitle the Purchaser to cancel any other Engagement Contract pending to be delivered.
8.6. Any further rights and remedies of the Purchaser different from those stated in this Clause 8 are hereby expressly excluded.
9. RETENTION OF TITLE
9.1. Title of the Services delivered by Appixels shall remain with Appixels and protected by copyright and all other applicable intellectual property laws until the Purchaser has paid the total purchase price of the Services delivered under the invoice issued against the Engagement Contract.
10.1. The purchase prices for the sale of Services shall be the prices set forth in the Engagement Contract.
10.2. Any tributes, direct or indirect taxes or any other taxes of different nature (municipal, local, national or international, …), rates, charges, or contributions that shall be applicable to the sale of the Services pursuant to the applicable legislation, any improvements or amendments of the Services requested by the Purchaser, as well as any other costs arisen from especial requirements of the Purchaser, if any, are excluded from the purchase price and shall be charged additionally, unless expressly stated to the contrary in Engagement Contract.
11.1. Appixels shall send to the Purchaser separate invoices for each Service rendered. Each Service shall be invoiced separately, and in the event that a collective invoice is issued, each Service shall be clearly and distinctively defined with its respective Service Fee mentioned individually.
11.2. Unless otherwise agreed in writing, the Purchaser shall pay the invoices without any undue delays and within the due date specified on the invoice. Nothing in these Terms or an Engagement Contract shall limit or otherwise prejudice the right of Appixels to receive timely and full payments from the Purchaser and the obligation of the Purchaser to make timely and full payments to Appixels for the Services received.
11.3. Payments shall be made only in the currency listed on the invoice, in the manner notified by Appixels to the Purchaser, and within the due date mentioned on the corresponding invoice.
11.4. Payment shall be deemed effective when full payment in the agreed currency has been received and duly acknowledged by Appixels . Time of payment shall be an essential condition of the sale of Services. Purchaser hereby warrants to make full and timely payments to Appixels without any undue delays and within the time limit specified on corresponding invoice.
11.5. The Purchaser shall not withhold any part of the payment whether by reason of set-off, counterclaim or for any other reason.
11.6. Undisputed amounts which remain unpaid once the due date period set forth in the corresponding invoice has elapsed, are overdue. In this event, Appixels will (without prejudice to any of its other rights) charge interests on the overdue amount at a monthly rate of 1.5%. Payment of such interest does not release the Purchaser from its obligation to make payments on the agreed dates and to indemnify Appixels for any other damage suffered as a consequence of such delay in payment.
12. SERVICE AVAILABILITY
12.1. Appixels reserves the absolute and exclusive right in its sole discretion to alter, limit or discontinue the Website, any content/materials thereto or the Services. Appixels shall have no obligation to take your needs into consideration in connection therewith.
12.2. Notwithstanding Clause 12.1., the aforesaid right of Appixels shall not affect the obligation of Appixels to fulfill the Engagement Contracts previously accepted pursuant to Clauses 3.2 and 3.3.
12.3. Appixels reserves the exclusive right to deny in its sole and absolute discretion any User or Purchaser access to this Website or the Services or any portion thereof without notice or reason.
12.4. If you are dissatisfied with any material or content on this Website, with these Terms or with the Refund Policy, your sole and exclusive remedy is to discontinue your use of the Website and Services.
13.1. If you are younger than 18 years, you are advised to immediately stop your use of the Website and inform your parents to promptly notify us. Appixels does not knowingly collect any information on individuals younger than 18 years of age. If you are aware of any data we may have collected of an individual who is younger than 18 years, please let us know at support@Appixels.com.
14.1. As a condition for use of the Website, Users hereby agree to indemnify Appixels , its affiliates, directors, partners, co-branders, directors, employees and subsidiaries from and against any and all actions, claims, losses, damages, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of your use of this Website and the Services, including without limitation, any claims alleging facts that if true would constitute a breach by you of these Terms.
14.2. This Website may contain links and references to other websites. Such linked websites and references may not necessarily be under the control of Appixels . Such links are not endorsements of any products or services contained in such websites, and no information in such website has been endorsed or approved by Appixels , and Appixels shall not be responsible for the content on any linked websites or any links contained on a linked website. Appixels provides these links only as a convenience, and the inclusion of a link or a reference does not imply the endorsement of the linked website by Appixels . You acknowledge that Appixels shall not be responsible for any losses or injuries arising out of your use of third-party websites or references.
14.3. The use of the Website, Services, and the terms and conditions for the sale of any Services, is governed by these Terms and our Refund Policy. By using this site or otherwise by making any payment in respect of any Service, you acknowledge that you have read the Terms, the Refund Policy as well as the disclaimers and caveats contained in this Website, and that you accept and will be bound by these Terms, and Refund Policy.
14.4. Users and Purchasers hereby acknowledge and agree that the use of the Website and Services is at their own risk and subject to the terms and conditions outlined in the Terms and the Refund Policy. The Website and Services are provided on an “as is” and “as available” basis. Appixels expressly disclaims all warranties of any kind, whether express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Appixels merely warrants that the Service will match its description, as stated in the Brief Form or Engagement Contract, as the case may be.
15.1. You hereby acknowledge and agree that Appixels shall not be held responsible for any damage, loss of data, customer information or vendor data, revenue, or other harm to business arising out of delays, or non-delivery of information, restriction or loss of access, bugs or other errors, unauthorized use due to access to or use of the Website, or otherwise any interaction with the Website.
15.2. Appixels does not warrant that the Services or Website will be uninterrupted, timely, secure, and/or error-free, neither does Appixels warrant that the quality of any information or Services will meet your expectations and you acknowledge and agree to this prior to entering into any agreement with Appixels .
15.3. Appixels does not warrant that any material downloaded or otherwise obtained through use of the Website or Services will be bug-free or risk-free. You hereby agree that any material downloaded or otherwise obtained through use of the Services or Website will be at your own risk and expense and you will be solely responsible for any losses arising thereto or any damage to your computer system or loss of data that results from the download or use of any such material.
15.4. Appixels warrants that it has the right to control and direct the means, details, manner and method by which the Services are required and will be performed.
15.5. Appixels warrants that it has the skills, experience and ability to provide and perform the Services.
15.6. Appixels warrants that the Services shall be performed in accordance with and shall not violate any applicable laws, rules or regulations and that Appixels shall obtain all permits or permissions required to comply with such laws, rules or regulations.
15.7. The Purchaser warrants that it will make timely and full payments of amounts agreed under the Engagement Contracts and within the due date stipulated on the corresponding invoices.
15.8. The Purchaser warrants to notify Appixels of any changes to its procedures that may affect Appixels ’s obligations under these Terms, the Refund Policy or Engagement Contracts.
15.9. The Purchaser warrants to provide such other assistance to Appixels as it deems reasonable and appropriate in order to perform its obligations under these Terms, and corresponding Engagement Contracts.
16.1. The failure of Appixels to exercise or enforce any right, remedy or provision in these Terms, the Refund Policy or Engagement Contracts shall not constitute a waiver of such right, remedy or provision, unless evidenced in writing and signed by Appixels .
17.1 In the event that any provision of these Terms, the Refund Policy the or Engagement Contracts is declared void, invalid or unenforceable, either wholly or in part, in any jurisdiction shall be ineffective and severed to the extent of such nullity, invalidity, unenforceability or lack of effect, shall not affect the validity, enforceability or effectiveness of the remaining provisions thereto, and any such nullity, invalidity, unenforceability in any jurisdiction shall not invalidate or render ineffective or unenforceable such provision in any other jurisdiction.
17.2. The clause declared null and void or without effect shall be regarded as not included, and it shall be replaced by a new clause or interpreted in a manner that is acceptable in law, whose contents is as similar as possible to the clause that Appixels would have included if it had known about the lack of validity or effect of such clause.
18.1. The term “Confidential Information” shall mean (i) all the information concerning the Services, irrespective of its support or form, (ii) any other information it shall be acknowledged by virtue of these Terms (iii) the information relating to the commercial activity of Appixels or Purchaser, (iv) any of the Parties’ proprietary information, technical data, trade secrets, or know-how, including, but not limited to, business plans, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to Appixels by the Purchaser or to the Purchaser by Appixels , either directly or indirectly.
18.2. You and Appixels undertake not to release the Confidential Information to third parties, without the prior written consent of the other Party.
18.3. This obligation of confidentiality shall oblige you and your representatives, as well as Appixels and its representatives. The term representative shall mean any employee, shareholder, director, co-brand, agent, consultant, adviser, or any other person related to you or Appixels , as the case may be.
18.4. With the purpose of avoiding the release of the Confidential Information, the Parties undertake to adopt any arrangements and measures it may deem appropriate in order to preserve the Confidential Information, in particular all the measures necessary related to its employees that have or may have access to the Confidential Information.
18.5. If the Purchaser breaches the confidential obligations it shall indemnify Appixels for any damages or losses, including lost profits that Appixels suffers as a consequence of the aforesaid breach. If Appixels breaches the confidential obligations it shall indemnify the Purchaser for any damages or losses, excluding lost profits that the Purchaser suffered, or may have suffered, as a consequence of the aforesaid breach.
18.6. In the event that the Purchaser is requested by a judicial or administrative authority to provide the Confidential Information, it shall so inform Appixels immediately. In the event that Appixels is requested by a judicial or administrative authority to provide the Confidential Information, it shall so inform the Purchaser/User immediately.
18.7. This Confidential Obligation shall remain in force for an indefinite term, while the Confidential Information preserves its confidential and secret nature.
18.8. In the event that the Purchaser engages in the resale or in any other form of redistribution of the Services, the Purchaser undertakes to obtain the written acceptance of Appixels prior to doing so, and also obtain the written acceptance of this confidentiality clause from the third party.
19. COMMUNICATIONS AND NOTICES
19.1. Appixels advises all Users and Purchasers to keep their information updated. You acknowledge that it is your responsibility to keep your information accurate and up-to-date, and immediately notify Appixels in case of any changes in your information. To this effect, all communications and notices shall be deemed as effectively made or served when sent to the email address provided by you.
20. LIMITED LIABILITY
20.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPIXELS OR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, PARTNERS, CO-BRANDERS, OR REPRESENTATIVES THEREOF BE LIABLE TO YOU OR OTHERWISE ANY THIRD PARTY MAKING A CLAIM THROUGH YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, STATEMENETS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICE, ANY OTHER MATTER RELATING TO THE SERVICE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF INFOMRAITON OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATING TO YOUR CONTRACT, THESE TERMS, OR THE SERVICES PROVIDED BY APPIXELS TO YOU, EVEN IF APPIXELS HAS BEEN ADVISED OF THE POTENTIAL FOR SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, EQUITY, OR UNDER STATUTE/LAW OR OTHERWISE. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN THESE TERMS, ENGAGEMENT CONTRACTS OR THE REFUND POLICY, APPIXELS’S LIABILITY TO YOU FOR ANY DAMAGES RELATED TO OR ARISING OUT OF YOUR CONTRACT WITH APPIXELS OR APPIXELS’S PROVISION OF SERVICES SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO APPIXELS UNDER THE CORRESPONDING ENGAGEMENT CONTRACTS FOR THE SERVICES WITHIN THE PRECEDING THREE (3) MONTHS.
21. INTELLECTUAL PROPERTY
21.1. Upon request, Appixels will communicate with you and describe in full all intellectual property rights in the material or things created, developed or generated by Appixels or its employees, agents, sub-contractors, whether alone or with a third party, in the course of providing Services under the corresponding Engagement Contracts with you (hereinafter, the “IP Rights”).
21.2. Subject to Clause 7.2., upon receiving your payment in full for all Services rendered under an Engagement Contract, subject to your request, Appixels shall assign all IP rights for all Services rendered under an Engagement Contract with you, to you, and shall ensure that its employees, agents and sub-contractors do all the things reasonably necessary to assign to and enable you to obtain ownership of the IP Rights mentioned in clause 21.1.
21.3. The obligations imposed on Appixels under Clause 21.1. and 21.2. shall not extend to any intellectual property rights of Appixels in existence prior to the commencement of the Engagement Contract that may be used in performance of the Services or otherwise any other intellectual property created by Appixels that is not related to the Services rendered under these Terms,or the Engagement Contract.
21.4 In the event that the delivery of a Service is made to you prior to Appixels receiving your requisite payment in full, you shall receive the Services as a depositary. You acknowledge that in such a case, all intellectual property rights relating to the Services provided, including without limitation, design rights and copyrights, shall be owned and retained by Appixels until and unless full payment has been received from you and acknowledged by Appixels .
22. FORCE MAJEURE
22.1. Subject to Clause 22.5., no party shall be in breach of any of its obligations, neither be liable to the other party if it fails to perform or delays the performance of an obligation as a result of an event beyond its reasonable control (hereinafter, “Force Majeure”), including but not limited to strikes, industrial disputes, fire, flood, act of God, war, insurrection, vandalism, sabotage, invasion, riot, national emergency, piracy, hijack, acts of terrorism, embargoes or restraints, extreme weather or traffic conditions, temporary closure of roads, delays in transportation or inability to obtain labor or materials through its regular sources.
22.2. The party claiming to be affected by Force Majeure shall notify the other party in writing without delay on the intervention and cessation of such circumstance.
22.3. If Force Majeure prevents the Appixels from fulfilling its obligations, the Purchaser shall compensate and fully indemnify Appixels for the expenses already incurred in designing, creating, producing, delivering, securing and/or protecting the Services.
22.4. Either party shall be entitled to resolute the pending Engagement Contracts, by noticing in writing to the other party, when performance of the obligations set forth in these Terms is suspended due to an act of Force Majeure, as define herein, for more than one month.
22.5. Nothing in Clause 22, or these Terms, shall prejudice or otherwise limit the right of Appixels to demand and receive timely payments for the Services rendered under these Terms or any Engagement Contract. The Purchaser acknowledges and accepts that a Force Majeure event shall not apply to the obligation of Purchaser to make and send timely payments to Appixels for the Services rendered under these Terms, or an Engagement Contract.
23. AMENDMENTS TO TERMS OR POLICIES
23.1. Any modification or amendment of the Purchaser to these Terms or the Refund Policy shall not be binding or enforceable, unless it had been expressly accepted in writing by Appixels under the terms of the Engagement Contract and duly signed by both, Appixels and the Purchaser.
23.2 Appixels shall have the right to amend or replace these Terms or the Refund Policy when it deems advisable. Any amendment hereof shall be notified by Appixels to you on the email address provided by you and shall be deemed as effectively served when sent to such email. You shall have five (5.-) calendar days, since the receipt of the notification, to send an objection to the referred modifications. The amendments of these Terms shall be deemed approved and accepted once the aforesaid term has elapsed without Appixels having received any objection or rejection from you. Your continued use of the Website or Services once the aforesaid term of five (5.-) calendar days has elapsed shall be constituted as your formal acceptance and acknowledgement to any such amendments or alterations in the Terms. In the case where you do not agree to the Terms,or Refund Policy or any amendments thereto, you shall have the sole and exclusive remedy to stop the use of the Website and Services.
24.1 The titles and headings of the various clauses and sub-clauses contained in these Terms have been chosen for the sole purpose of offering a guide to assist a reading of the said clauses. It is considered that, for contractual purposes, these headings do not alter the content of the clauses or sub-clauses to which they refer. In any case, these Terms shall be interpreted in accordance with the true literal sense of the words contained herein.