The following terms shall have the meaning set forth below:
The Client’s personal and secured web page, accessible via the Website and in which the Client can, among other things, submit Images and retrieve Materials:
The agreement, including these Terms and Conditions, concluded between Pixel Studio 360 and the Client for provision of the Service either in the form of a written agreement or as the result of Pixel Studio 360’s confirmation of the acceptance of an Offer by the Client in accordance with clause 3.1;
The form of provision of the Service by Pixel Studio 360 whereby Pixel Studio 360 and the Client have agreed the applicable fee for the Images in the Agreement and for the avoidance of doubt, whereby Pixel Studio 360 does not make separate Offers for particular Images;
Any individual or business that has entered into an Agreement with Pixel Studio 360;
All photos and other images submitted by the Client to Pixel Studio 360 within Client’s Account with regard to which Images Pixel Studio 360 will provide its Service;
All intellectual property and ancillary rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, as well as know-how rights;
The username and password which the Client provides when creating its Account and with which the Client gains access to its Account;
The clipped and/ or edited Images resulting from the Service;
Pixel Studio 360:
The Partnership company: Pixel Studio 360, registered in Bangladesh as a partnership company under companies act;
An offer or quote by Pixel Studio 360 either for providing the Service for i) particular Images or ii) Images on the basis of an Agreement;
Pixel Studio 360 and Client, each being a Party;
Any information relating to an identified or identifiable natural person;
The services provided by Pixel Studio 360 to Client under the terms of an Offer or an Agreement comprising of the editing of Images provided by the Client and converting them into Material, in accordance with the agreed specifications in the accepted Offer or in the Agreement;
The charges, fees or price for the Service;
The service network Pixel Studio 360 has established, apart from its own corporate group, and which consists of a number of carefully selected professional companies, with which Pixel Studio 360 has agreements in place and which are engaged in the provision of the Pixel Studio 360 Service;
Terms and Conditions:
These general terms and conditions;
The website of Pixel Studio 360, accessible via www.MisterClipping.com, through which Website the Client can obtain access to its personal Account, submit Images and retrieve Materials.
2.1 The Terms and Conditions apply to any legal act of Pixel Studio 360, all legal relationships between Parties and all Agreements pursuant to which Pixel Studio 360 will provide the Service to the Client.
2.2 Deviations from and additions to a bespoke Agreement (including these Terms and Conditions) concluded between Parties are only valid if agreed by both Parties in writing.
2.3 Except in the case of clause 2.2 of these Terms and Conditions, Pixel Studio 360 is entitled, at any time, to amend these Terms and Conditions. The most up-to-date version of the Terms and Conditions can be found on the Website or will be brought to Client’s attention.
2.4 The applicability of the Client’s purchasing or other conditions is expressly rejected.
3.1 Offers by Pixel Studio 360 shall be understood to be non-binding. An Agreement becomes effective only subject to Pixel Studio 360’s confirmation of a Client’s acceptance of an Offer. Pixel Studio 360 starting to provide the Service shall be considered as a confirmation.
3.2 Offers which are not accepted become invalid after the expiry of thirty days from the date they were made and/or published on the Website, unless otherwise indicated in the Offer or in the Agreement.
3.3 The Client shall provide accurate and complete information to Pixel Studio 360, with respect to, inter alia, the Images and the Client specifications for the Materials upon which information Pixel Studio 360 bases its Offer and the details for creation of the Client’s Account. If the aforementioned information proves to be inaccurate or incomplete, Pixel Studio 360 will have the right to amend its Offer or to terminate the Agreement.
3.4 Amendments or additions to the agreed Service at the request of the Client may only take place with the written consent of Pixel Studio 360. Pixel Studio 360 is not obliged to implement an amendment or addition and may require a separate written agreement to be concluded in respect thereof.
3.5 Pixel Studio 360 will only provide its Services:
3.5.1 with regard to the supported file types, which file types are displayed on the Website or specified in the Agreement;
3.5.2 if the Images are submitted by means of one of the approved methods of submission, which are listed on the Website or in the Agreement;
3.5.3 if the Client uses one of the approved payment methods, which are listed on the Website or in the Agreement; and
3.5.4 if the submitted Images are of the quality of the then-current industry standards.
3.6 If Pixel Studio 360 is not able to provide the Service due to the Client’s failure to comply with the conditions for the provision of the Service by Pixel Studio 360 set forth in clause 3.5 of these Terms and Conditions, Pixel Studio 360 will so notify the Client. Pixel Studio 360 cannot be held liable for failure to provide the Service in those circumstances.
3.7 If there are amendments or additions which result in a change to the scope of the agreed Service, for example through additional work, the extra activities arising there from will be paid for in accordance with the then-current rates of Pixel Studio 360, unless otherwise agreed to in writing. In so far as a fixed price has been agreed for the Service, Pixel Studio 360 will inform the Client about the additional charges of the extra activities as referred to in this article.
3.8 The Client acknowledges and agrees that the Materials produced by Pixel Studio 360 are clearly of a personal and bespoke nature and are created to order based on specifications as delivered by the Client.
3.9 The Client acknowledges and agrees that Pixel Studio 360, notwithstanding clause 13.1 of the Terms and Conditions, will be permitted to engage its Service Network for the provision of the Service, subject to the terms and conditions of the Agreement.
4.1 Pixel Studio 360 will provide the Service on the basis of a commercially reasonable undertaking obligation.
4.2 Pixel Studio 360 will, subject to the Agreement, use its commercially reasonable undertaking to provide the Service to the Client within 24 hours either:
4.2.1 after the Client’s acceptance of the Offer made by Pixel Studio 360 following a successful submittal of the Images by the Client and Pixel Studio 360’s assessment of those Images; or,
4.2.2 after successful submittal of the Images by the Client.
4.3 Notwithstanding clause 4.2 of the Terms and Conditions, the Client understands and accepts that the turnaround time depends on several circumstances, such as the number of Images provided by the Client, the quality of the Images and any additional information provided by the Client. If, despite the commercially reasonable undertaking of Pixel Studio 360, Pixel Studio 360 fails to provide the Materials in accordance with clause 4.2 of these Terms and Conditions, Pixel Studio 360 will undertake, as an exclusive remedy to the Client, to provide the Materials within the next 48 hours.
4.4 All delivery dates in relation to the Service issued by Pixel Studio 360 are estimates only. The Client is not allowed to suspend its payment obligation if the anticipated time of delivery is exceeded by Pixel Studio 360.
4.5 The Client accepts that additions or amendments demanded to the agreed Service by the Client may influence the turnaround time and the reciprocal responsibilities of Pixel Studio 360 and the Client. The fact that additional work arises during the provision of the Service as a result of the Client demanding such additional work will not entitle the Client to cancel or terminate the Agreement.
4.6 The Materials as provided by Pixel Studio 360 shall be deemed to be in conformity with the Agreement if the Materials substantially meet the specifications in the accepted Offer or the specifications described in the Agreement. If the Materials do not substantially meet the applicable specifications, the Client is, as an exclusive remedy and subject to clauses 4.7 and 4.8 of these Terms and Conditions, entitled to request Pixel Studio 360 to re-execute the relevant Service at no additional costs by rejecting the relevant Material, using the reject-function in the online application. The Client understands and accepts, however, that the quality of the delivered Materials depends on, among other things, the quality of the Images provided by the Client. Pixel Studio 360 is therefore free to decide whether re-executing of the Service will result in Materials of a higher level of conformity. If, at Pixel Studio 360’s sole discretion, the level of conformity of the delivered Materials cannot be improved, Pixel Studio 360 shall not be obliged to re-execute the Service and the Client shall pay the fee for the Material in the form initially provided.
4.7 The Client’s right to request Pixel Studio 360 to re-execute the Service will lapse after 14 days following notification by Pixel Studio 360 of delivery of the Materials. Upon the Client’s download or any other use of the Materials or lapse of the 14 days’ period, the Materials will be deemed to have been accepted and to be in conformity with the Agreement.
4.8 Pixel Studio 360 shall be entitled to charge an additional fee to the Client if re-executing the Service requires Pixel Studio 360 to make additions to or to amend the agreed Service in order to achieve a higher level of conformity of the Material.
5. Access to the Service
5.1 In order to create an Account and to use the Service, the Client is required to submit its contact details via the Website, after which submission an Account is created on behalf of the Client. After accessing its Account with its Login Details, the Client will be able to submit Images and to retrieve Materials. For making payments to Pixel Studio 360, the Client will be redirected to the payment service provider of Pixel Studio 360 or, if so agreed, Pixel Studio 360 shall send an invoice.
5.2 After the Service has been rendered, the Materials will be made available through the Account of the Client. An e-mail will be sent to the Client upon delivery of these Materials. Pixel Studio 360 does not accept any liability concerning the correct reception of this notification e-mail and Pixel Studio 360 therefore advises the Client to regularly check its Account in order to retrieve the Materials. The Service shall be deemed to have been completed by Pixel Studio 360 at the moment the Materials are made available in the User’s Account.
5.3 The Client shall be responsible at all times for every use made of its Account by the Client and/or third parties authorized to do so by the Client. The Client accepts that the Website and the Client’s Account only contain the functionalities and information that are present at the moment of use (“as is” basis).
5.4 Pixel Studio 360 shall in no way whatsoever be liable to the Client for any damage arising out of or resulting from the Client’s Account or the Website being (temporarily) unavailable or for failures or outages.
5.5 The Client shall solely be responsible for the purchase and/or the proper operation of the infrastructure necessary to properly use the Service and the Website. Pixel Studio 360 shall not be liable for damage or costs on account of transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet.
6. Intellectual Property (IP) Rights
6.1 All IP Rights in relation to the Images provided by the Client will at all times remain with the Client or its licensor(s).
6.2 Pixel Studio 360 shall only be allowed to use (and to allow the parties in Pixel Studio 360’s Service Network to use) the Images for provision of the Service to the Client and to the extent necessary for the provision of the Service by Pixel Studio 360 to the Client, the Client shall grant Pixel Studio 360 a royalty-free, revocable, non-exclusive right to so use the Images.
6.3 If, due to the provision of Services, any IP Right has originated in relation to the Materials, Pixel Studio 360 hereby assigns to the Client any and all IP Rights it possesses in connection with these Materials. Insofar as (parts of) the IP Rights can not be assigned or transferred under the relevant national law(s), Pixel Studio 360 authorizes the Client to perform all further acts necessary to transfer to the Client any and all IP Rights Pixel Studio 360 has, may have or will have in connection with the Materials to the Client.
7. Price and Payment
7.1 After acceptance by the Client of an Offer, the Service Fee specified in the accepted Offer shall be due and payable by the Client, unless otherwise agreed to in writing under an Agreement. The Client shall use one of the payment methods specified on the Website, in the Offer or in the Agreement.
7.2 The Service Fee will be in USD, unless stated otherwise. All amounts due will be exclusive of any sales and turnover tax, such as VAT and other governmental levies/taxes.
7.3 Pixel Studio 360 shall only provide the Service upon receipt of full payment of the Service Fee due, unless otherwise agreed to in writing.
7.4 If payment (in full) has not yet been received by Pixel Studio 360 on the due date, the Client will be in default without prior demand or notice of default being required. As from the date of default the Client will be liable for interest equal to the statutory (commercial) interest rate.
7.5 If the Client, despite demand or notice of default, still fails to pay the amounts due, Pixel Studio 360 may hand over the claim for collection. In that event all costs incurred by Pixel Studio 360, 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 payable by the Client. The extra-judicial costs are fixed at no less than 15% of the invoiced amount subject to a minimum of USD 200,00 excluding VAT.
7.6 Complaints in relation to invoices and/or the Services will not suspend the payment obligations of the Client.
7.7 Pixel Studio 360 will be entitled to suspend the fulfillment of its obligations until such time as the Client has fully paid all Service Fees due.
8.1 When visiting the Website, creating an Account and making use of the Service, the Client will provide Personal Data to Pixel Studio 360.
8.2 When dealing with Personal Data of the Client:
8.2.1 Pixel Studio 360 will only use the data needed to provide the Service and, if applicable, to enable the processing of payments; and
8.2.2 Pixel Studio 360 will not share Personal Data of the Client with any third party without the Client’s consent except where Pixel Studio 360 is required to do so by law.
8.3 To the extent that the Images would be considered Personal Data for the purpose of the Data Protection Act, Pixel Studio 360, while performing the Service, acts as the processor of such Personal Data and shall only use the Images for the purpose for which they were provided by the Client.
9. Guarantees and Indemnities
9.1 The Client guarantees that:
9.1.1 it is fully entitled to upload the Images and that it has obtained any necessary consents with respect to any individual’s data protection and the protection of privacy;
9.1.2 the Images are correct, complete, unencumbered and not limited or restricted by, and do not infringe upon, any third parties’ rights, including IP Rights, and the use of the Images by Pixel Studio 360 is not in any other way unlawful in respect of third parties;
9.1.3 it will keep secure all Login details and any passwords, codes and related instructions provided by Pixel Studio 360 or used in relation with the Service;
9.1.4 it will never submit Images that:
188.8.131.52 are in any way discriminating, offensive and/or obscene;
184.108.40.206 contain violent or unlawful content; or
220.127.116.11 harm the interests and reputation of Pixel Studio 360
9.1.5 it will not intentionally use or enable or demand any third party to use or enable viruses, Trojan horses, worms, bots, or other software which may cause damage to the Service or the Website or any other technical aid which may render the Service or Website inaccessible or which are intended to circumvent technical protective measures;
9.1.6 will not carry out activities which may impede the functionality of the Service; and
9.1.7 will not use applications that monitor the Service or that copy parts of it.
9.2 The Client shall indemnify Pixel Studio 360 and hold Pixel Studio 360 harmless from and against any and all costs (including reasonable legal fees) and damages incurred by Pixel Studio 360 as a result of:
9.2.1 any third party claim which is made against Pixel Studio 360 in connection with an (alleged) attributable breach by the Client of the guarantees contained in clauses 9.1.1 and 9.1.2 of these Terms and Conditions;
9.2.2 any claims, demands, awards, judgments, actions and proceedings made by any third party, arising out of or in any way connected with breach by the Client of its obligations under the Agreement.
9.2.3 any and all costs and damages which Pixel Studio 360 may incur as a result of the Client’s breach of the guarantees contained in clauses 9.1.3, 9.1.4, 9.1.5, 9.1.6 and 9.1.7 or the Client’s other unauthorized use of the Pixel Studio 360 Service
9.3 Pixel Studio 360 guarantees to:
9.3.1 not intentionally include or build in or have included or built in the Material any i) viruses, Trojan horses, worms, bots or other harmful software, or ii) any commercial solicitation, chain letters, mass mailings, or any form of “spam”;
9.3.2 impose on the members of its Service Network:
18.104.22.168 the obligation with respect to IP Rights as per clause 6.3 of these Terms and Conditions; and
22.214.171.124 the confidentiality obligation as per clause 11.2 of these Terms and Conditions.
9.4 Pixel Studio 360 will indemnify the Client and shall hold the Client harmless for any and all costs (including reasonable legal fees) and damages incurred by the Client as a result of:
9.4.1 any third party claim which is made against the Client in connection with a breach by Pixel Studio 360 of the guarantees contained in clause 9.3 of these Terms and Conditions; or
9.4.2 the Client having had to initiate legal proceedings in order to obtain the IPRs of any Materials from any member of Pixel Studio 360’s Service Network;
9.5 The indemnity obligations of both Parties under these Terms and Conditions are subject to the indemnified Party as soon as possible notifying the indemnifying Party of any such claims or proceedings.
10. Limitation of Liability
10.1 Pixel Studio 360 undertakes to ensure that the Service rendered is of the highest possible quality. However, since the quality of the Service depends on several factors, Pixel Studio 360 cannot not guarantee that the quality of the Material lives up to the expectations of the Client.
10.2 The total liability of Pixel Studio 360 towards the Client for breach of contract, in tort or otherwise in any calendar year shall be limited to compensation of the direct damage only up to an amount equal to the Service Fees paid or payable by the Client to Pixel Studio 360 during the calendar year immediately preceding the year in which the damage occurred.
10.3 Neither Party shall be liable for any indirect or consequential damages, or loss of exploitation, productivity, reputation, profits, contracts, investments, time, data, files (including Images and Material) programs and/or documentation.
10.4 The limitation of liability of clause 10.2 of the Terms and Conditions and the exclusion of liability of clause 10.3 of the Terms and Conditions shall not apply in the event of willful misconduct, gross negligence, fraud, fraudulent misrepresentation, death or personal injury.
11.1 Parties shall maintain all information they receive from or about each other strictly confidential, including information concerning Images and Materials. Information will in any case be regarded to be confidential, if one of the parties indicates in writing that it is confidential.
11.2 Parties will impose this obligation of confidentiality also on their employees and third parties hired for the performance of their obligations hereunder, in particular Pixel Studio 360 shall impose the confidentiality obligation of clause 11.1 of these Terms and Conditions on the members of its Service Network.
11.3 A Party shall not be required to maintain confidentiality with respect to any information that i) was already in the possession of such Party on a non-confidential basis ii) has lawfully come into the possession of such a Party on a non-confidential basis or iii) is legally required to be disclosed to a judicial or administrative authority.
12. Term and Termination
12.1 An Agreement shall be in effect for the term as agreed by the Parties or for as long a period as is required for the Materials to be considered as accepted in accordance with these Terms and Conditions, or until the moment the Client’s right to request Pixel Studio 360 to re-execute pursuant to clause 4.6 of these Terms and Conditions has lapsed.
12.2 Either Party may terminate the Agreement with immediate effect upon written notice to the other Party, if:
12.2.1 the other Party applies for a moratorium of payments, is declared bankrupt or otherwise will no longer be able to meet its financial obligations under the Agreement;
12.2.2 the other Party materially breaches the Agreement and, if such breach can be remedied, fails within a reasonable period, after having been given notice of such breach in writing by the non-breaching Party to remedy such breach.
12.3 Subject to clause 12.2 of the Terms and Conditions, the Client shall not be entitled to terminate the Agreement early.
12.4 If the Client acts in a manner reasonably adjudged by Pixel Studio 360 to be detrimental, in particular when the Client does not fulfil its obligations under these Terms and Conditions, Pixel Studio 360 is entitled to suspend provision of the Service to the Client. Pixel Studio 360 shall not be liable for any loss arising in respect of the foregoing.
13.1 Severability: 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. Pixel Studio 360 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, corresponds as much as possible with those of the invalid provision.
13.2 Waiver: the failure of Parties to enforce the provisions of these Terms and Conditions and the Agreement at any time, or the failure to require at any time the performance by the other Party of any of the provisions of these Terms and Conditions or the Agreement, shall in no way be construed to be a present or future waiver of such provision nor in any way affect the validity of either Party to enforce each and every such provision.
13.3 Assignment: neither Party is entitled to transfer rights and obligations arising from these Terms and Conditions and/or the Agreement to third parties, except as set forth in clause 3.8.
13.4 Survival: the provisions of clauses 6.4, (transfer of IP Rights), 8, (Privacy) and 11, (Confidentiality) of these Terms and Conditions shall survive termination of the Agreement for whatever reason, and, in addition, the obligations of the Parties under the Agreement that by their nature continue beyond the expiration of the Agreement, shall survive any termination or cancellation of the Agreement.
13.5 Counterparts: the Agreement may be executed in any number of counterparts, all of which taken together (when at least each Party has executed one) shall constitute one and the same Agreement.
14. Governing law
The Terms and Conditions, the Agreement and any use the Client makes of the Service are subject to the laws of Bangladesh and any dispute arising out of it that cannot be solved amicably shall be brought only in the courts of Bangladesh.