These terms and conditions, together with any proposal, estimate or fee quote, form the agreement between you (the Project beneficiary) and the Pixol Creative Ltd. entity (Pixel Project) providing the services contemplated therein.
1.1 In this Agreement, the following words and phrases shall have the following meanings unless the context otherwise requires:
(a) Agreement means this agreement entered into between Pixol Creative Ltd. and the Project beneficiary;
(b) Charges shall have the meaning given in Clause 5.3;
(c) Confidential Information means all information in whatever form or manner presented which:
(i) Is disclosed pursuant to, or in the course of the provision of Services pursuant to, this Agreement; and
(ii) is disclosed in writing, electronically, visually, orally or otherwise howsoever and is marked, stamped or identified by any means as confidential by the disclosing party at the time of such disclosure; and/or
(iii) is information, howsoever disclosed, which would- reasonably be considered to be confidential byte receiving party.
(d) Intellectual Property Right(s)means copyrights, trademarks (registered or unregistered), patents, patent applications (including the right to apply for a patent), service marks, design rights (registered or unregistered), trade secrets and other like rights howsoever existing
(e) Report(s)shall have the meaning as set out in Clause 2.3 below;
(f) Services means the services set out in any relevant Pixol Creative Ltd. Proposal, any relevant Project beneficiary purchase order, or any relevant Pixol Creative Ltd. invoice, as applicable, and may comprise or include the provision by Pixol Creative Ltd. of a Report;
(g) Proposal means the proposal, estimate or fee quote, if applicable, provided to the Project beneficiary by Pixol Creative Ltd. relating to the Services;
1.2 The headings in this Agreement do not affect its interpretation.
2. THE SERVICES
2.1 Pixol Creative Ltd. shall provide the Services to the Project beneficiary in accordance with the terms of this Agreement which is expressly incorporated into any Proposal Pixol Creative Ltd. has made and submitted to the Project beneficiary.
2.2 In the event of any inconsistency between the terms of this Agreement and the Proposal, the terms of the Proposal shall take precedence.
2.3 The Services provided by Pixol Creative Ltd. under this Agreement and any memoranda, multimedia production, laboratory data, calculations, measurements, estimates, notes, certificates and other material prepared by Pixol Creative Ltd. In the course of providing the Services to the Project beneficiary, together with status summaries or any other communication in any form describing the results of any work or services performed (Report(s)) shall be only for the Project beneficiary's use and benefit.
2.4 The Project beneficiary acknowledges and agrees that if in providing the Services Pixol Creative Ltd. is obliged to deliver a Report to a third party, Pixol Creative Ltd. shall be deemed irrevocably authorized to deliver such Report to the applicable third party. For the purposes of this clause an obligation shall arise on the instructions of the Project beneficiary, or where, in the reasonable opinion of Pixol Creative Ltd., it is implicit from the circumstances, trade, custom, usage or practice.
2.5 The Project beneficiary acknowledges and agrees that any Services provided and/or Reports produced by Pixol Creative Ltd. are done so within the limits of the scope of work agreed with the Project beneficiary in relation to the Proposal and pursuant to the Project beneficiary's specific instructions or, in the absence of such instructions, in accordance with any relevant trade custom, usage or practice. The Project beneficiary further agrees and acknowledges that the Services are not necessarily designed or intended to address all matters of quality, safety, performance or condition of any product, material, services, systems or processes tested, inspected or certified and the scope of work does not necessarily reflect all standards which may apply to product, material, services, systems or process tested, inspected or certified. The Project beneficiary understands that reliance on any Reports issued by Pixol Creative Ltd. is limited to the facts and representations set out in the Reports which represent Pixol Creative Ltd.’s review and/or analysis of facts, information, documents, samples and/or other materials in existence at the time of the performance of the Services only.
2.6 Project beneficiary is responsible for acting as it sees fit on the basis of such Report. Neither Pixol Creative Ltd. nor any of its officers, employees, agents or subcontractors shall be liable to Project beneficiary nor any third party for any actions taken or not taken on the basis of such Report.
2.7 In agreeing to provide the Services pursuant to this Agreement, Pixol Creative Ltd. does not abridge, abrogate or undertake to discharge any duty or obligation of the Project beneficiary to any other person or any duty or obligation of any person to the Project beneficiary.
3. PIXOL CREATIVE LTD.'S WARRANTIES
3.1 Pixol Creative Ltd. warrants exclusively to the Project beneficiary:
(a) that it has the power and authority to enter into this Agreement and that it will comply with relevant legislations and regulations in force as at the date of this Agreement in relation to the provision of the Services;
(b) that the Services will be performed in a manner consistent with that level of care and skill ordinarily exercised by other companies providing like services under similar circumstances;
(c) that it will take reasonable steps to ensure that whilst on the Project beneficiary’s premises its personnel comply with any health and safety rules and regulations and other reasonable security requirements made known to Pixol Creative Ltd. by the Project beneficiary in accordance with Clause 4.3(f);
(d) that the Reports produced in relation to the Services will not infringe any legal rights (including Intellectual Property Rights) of any third party. This warranty shall not apply where the infringement is directly or indirectly caused by Pixol Creative Ltd.’s reliance on any information, samples or other related documents provided to Pixol Creative Ltd. by the Project beneficiary (or any of its agents or representatives).
3.2 In the event of a breach of the warranty set out in Clause 3.1 (b), Pixol Creative Ltd. shall, at its own expense, perform services of the type originally performed as may be reasonably required to correct any defect in Pixol Creative Ltd.’s performance.
3.3 Pixol Creative Ltd. makes no other warranties, express or implied. All other warranties, conditions and other terms implied by statute or common law (including but not limited to any implied warranties of merchantability and fitness for purpose) are, to the fullest extent permitted by law, excluded from this Agreement. No performance, deliverable, oral or other information or advice provided by Pixol Creative Ltd. (including its agents, sub-contractors, employees or other representatives) will create a warranty or otherwise increase the scope of any warranty provided.
4. PROJECT BENEFICIARY WARRANTIES AND OBLIGATIONS
4.1 The Project beneficiary represents and warrants:
(a) that it has the power and authority to enter into this Agreement and procure the provision of the Services for itself;
(b) that it is securing the provision of the Services hereunder for its own account and not as an agent or broker, or in any other representative capacity, for any other person or entity;
(c) that any information, samples and related documents it (or any of its agents or representatives)supplies to Pixol Creative Ltd. (including its agents, sub-contractors and employees) is, true, accurate representative, complete and is not misleading in any respect. The Project beneficiary further acknowledges that Pixol Creative Ltd. will rely on such information, samples or other related documents and materials provided by the Project beneficiary (without any duty to confirm or verify the accuracy or completeness thereof) in order to provide the Services;
(d) that any samples provided by the Project beneficiary to Pixol Creative Ltd. will be shipped pre-paid and will be collected or disposed of by the Project beneficiary (at the Project beneficiary's cost) within thirty (30) days after testing unless alternative arrangements are made by the Project beneficiary. In the event that such samples are not collected or disposed by the Project beneficiary within the required thirty (30) days period, Pixol Creative Ltd. reserves the right to destroy the sample, at the Project beneficiary's cost; and
(e) that any information, samples or other related documents (including without limitation certificates and reports) provided by the Project beneficiary to Pixol Creative Ltd. will not, in any circumstances, infringe any legal rights(including Intellectual Property Rights) of any third party.
4.2 In the event that the Services provided relate to any third party, the Project beneficiary shall cause any such third-party to acknowledge and agree to the provisions in this Agreement and the Proposal prior to and as a condition precedent to such third party receiving any Reports or the benefit of any Services.
4.3 The Project beneficiary further agrees:
(a) to co-operate with Pixol Creative Ltd. in all matters relating to the Services and can appoint a manager in relation to the Services who shall be duly authorized to provide instructions to Pixol Creative Ltd. on behalf of the Project beneficiary and to bind the Project beneficiary contractually as required;
(b) to provide Pixol Creative Ltd. (including its agents, sub-contractors and employees), at its own expense, any and all content, samples, information, material or other documentation necessary for the execution of the Services in a timely manner sufficient to enable Pixol Creative Ltd. to provide the Services in accordance with this Agreement. The Project beneficiary acknowledges that any samples provided may become damaged or be destroyed in the course of testing as part of the necessary testing process and undertakes to hold Pixol Creative Ltd. harmless from any and all responsibility for such alteration, damage or destruction;
(c) that it is responsible for providing the content/samples/equipment to be tested together, where appropriate, with any specified additional items, including but not limited to connecting pieces, fuse-links, etc;
(d) to provide instructions and feedback to Pixol Creative Ltd. in a timely manner;
(e) to provide Pixol Creative Ltd. (including its agents, sub-contractors and employees) with access to its premises as may be reasonably required for the provision of the Services and to any other relevant premises at which the Services are to be provided;
(f) prior to Pixol Creative Ltd. attending any premises for the performance of the Services, to inform Pixol Creative Ltd. of all applicable health and safety rules and regulations and other reasonable security requirements that may apply at any relevant premises at which the Services are to be provided;
(g) to notify Pixol Creative Ltd. promptly of any risk, safety issues or incidents in respect of any item delivered by the Project beneficiary, or any process or systems used at its premises or otherwise necessary for the provision of the Services;
(h) to inform Pixol Creative Ltd. in advance of any applicable import/ export restrictions that may apply to the Services to be provided, including any instances where any products, information or technology maybe exported/ imported to or from a country that is restricted or banned from such transaction;
(i) in the event of the issuance of a certificate, to inform and advise Pixol Creative Ltd. immediately of any changes during the term of the certificate which may have a material impact on the accuracy of the certification;
(j) to obtain and maintain all necessary licenses and consents in order to comply with relevant legislation and regulation in relation to the Services;
(k) that it will not use any Reports issued by Pixol Creative Ltd. pursuant to this Agreement in a misleading manner and that it will only distribute such Reports in their entirety;
(l) in no event, will the contents of any Reports or any extracts, excerpts or parts of any Reports be distributed or published without the prior written consent of Pixol Creative Ltd. (such consent not to be unreasonably withheld) in each instance; and
(m) that any and all advertising and promotional materials or any statements made by the Project beneficiary will not give a false or misleading impression to any third party concerning the services provided by Pixol Creative Ltd.
4.4 Pixol Creative Ltd. shall be neither in breach of this Agreement nor liable to the Project beneficiary for any breach of this Agreement if and to the extent that its breach is a direct result of a failure by the Project beneficiary to comply with its obligations as set out in this Clause 4. The Project beneficiary also acknowledges that the impact of any failure by the Project beneficiary to perform its obligations set out herein on the provision of the Services by Pixol Creative Ltd. will not affect the Project beneficiary’s obligations under this Agreement for payment of the Charges pursuant to Clause 5below.
4.5 Pixol Creative Ltd. shall
(a) assign to Project beneficiary tasks and responsibilities to match their knowledge, skills, competencies and training objectives and ensure that appropriate equipment and support is available
(b) draw a contract or equivalent document for placement in accordance with the requirements of the national legislation
(c) appoint a mentor to advise Project beneficiary, help them with their integration in the host environment and monitor their training progress
4.6 Provide practical support if required, check appropriate needs and facilitate understanding of the culture of the host country
4.7 Project Beneficiary shall
(a) comply with all arrangements negotiated for his/her placement and to do his/her best to make the placement a success
(b) abide by the rules and regulations of the host organisation, its normal working hours, code of conduct and rules of confidentiality
(c) communicate with Pixol Creative Ltd. which is the sending institution about any problem or changes regarding the placement
(d) submit a report as per set schedule in the specified format and any required supporting documents at the end of the placement
5. CHARGES, INVOICING AND PAYMENT
5.1 The parties agree that the Services are provided on the terms and subject to the conditions set out or referred to in this Agreement, and that this Agreement shall take precedence over any terms and conditions which the Project beneficiary has provided or may in the future provide to Pixol Creative Ltd., whether in a purchase order or any other document.
5.2 Unless acceptance of this Agreement by the Project beneficiary occurs at an earlier time, submission of samples or any other testing material from the Project beneficiary to Pixol Creative Ltd. shall be deemed to be conclusive evidence of the Project beneficiary’s acceptance of this Agreement.
5.3 The Project beneficiary shall pay Pixol Creative Ltd. the charges set out in the Proposal, if applicable as in the case for registration in some of the initiatives, or as otherwise contemplated for provision of the Services (the Charges).
5.4 If pricing factors, such as salaries and/or rates are subject to change between the conclusion date of the Contract and the completion date of the Contract, Pixol Creative Ltd. has the right to adjust the Charges accordingly.
5.5 The Charges are expressed exclusive of any applicable taxes. The Project beneficiary shall pay any applicable taxes on the Charges at the rate and in the manner prescribed by law, on the issue by Pixol Creative Ltd. of a valid invoice.
5.6 The Project beneficiary agrees that it will reimburse Pixol Creative Ltd. for any expenses incurred by Pixol Creative Ltd. relating to the provision of the Services and is wholly responsible for any freight or customs clearance fees relating to any testing samples.
5.7 The Charges represent the total fees to be paid by the Project beneficiary for the Services pursuant to this Agreement. Any additional work performed by Pixol Creative Ltd. will be charged on a time and material basis.
5.8 Pixol Creative Ltd. shall invoice the Project beneficiary for the Charges and expenses, if any for Services provided over the course of a period of greater than thirty (30) days the Project beneficiary agrees that at the end of each calendar month Pixol Creative Ltd. will issue an invoice for the cost of the Services provided in the month. A final invoice will be issued on the date of the completion of the Services.
5.9 The Project beneficiary is required to pay all invoiced amounts without any deduction, discount or set-off no later than thirty (30) days after the invoice date. No deduction for bank charges incurred can be made. Payments, which must be denominated in the currency indicated in the invoice, must be made by means of money transfer to a bank account designated by Pixol Creative Ltd.
5.10 Pixol Creative Ltd. will issue an electronic invoice to the Project beneficiary. An electronic invoice may be sent by email and will be deemed to have been delivered to the Project beneficiary upon receipt of such email. Pixol Creative Ltd. is under no obligation to fulfil any request by the Project beneficiary for a paper copy to be sent by post. Any invoice sent by post will include an administration fee and the paper invoice must be paid by the Project beneficiary within the credit terms referred to in 5.9 above.
5.11 If Pixol Creative Ltd. believes that the Project beneficiary’s financial position and/or payment performance justifies such action, Pixol Creative Ltd. has the right to demand that the Project beneficiary immediately furnish security or additional security in a form to be determined by Pixol Creative Ltd. and/or make an advance payment. If the Project beneficiary fails to furnish the desired security, Pixol Creative Ltd. has the right, without prejudice to its other rights, to immediately suspend the further execution of all or any part of the Services, and any Charges for any part of the Services which has already been performed shall become immediately due and payable.
5.12 If the Project beneficiary fails to pay within the period referred to in 5.9 above, it is in default of its payment obligations and this Agreement after having been reminded by Pixol Creative Ltd. at least once that payment is due within a reasonable period. In that case, the Project beneficiary is liable to pay interest on the credit balance with effect from the date on which the payment became due until the date of payment. The interest rate applied is deemed to be the allowable local Central Bank base rate plus 5%. In addition, all collection costs incurred after the Project beneficiary’s default, both judicial and extrajudicial, are for the Project beneficiary’s account. The extrajudicial costs are set at an amount equal to least 10% of the principal plus interest, without prejudice to Pixol Creative Ltd.’s right to collect the actual extrajudicial costs in excess of this amount. The judicial costs comprise all costs incurred by Pixol Creative Ltd., even if they exceed the Bank of England base rate.
5.13 If the Project beneficiary objects to the contents of the invoice, details of the objection must be raised with Pixol Creative Ltd. within seven (7) days of receipt of electronic invoice, otherwise the invoice will be deemed to have been accepted. Any such objections do not exempt the Project beneficiary from its obligation to pay within the period referred to in 5.9 above.
5.14 Any request by the Project beneficiary for certain information to be included in or appended to the invoice must be made at the time of setting out the Proposal. A later request by the Project beneficiary for changes to the agreed format of the invoice or supplementary information will not discharge the Project beneficiary from its obligation to pay within the period referred to in 5.9 above. Pixol Creative Ltd. reserves the right to charge an administration fee per invoice for issuing additional copies of invoices or amending invoice detail, format or structure from that agreed in the Proposal. Pixol Creative Ltd. maintains the right to reject such an invoicing amendment request and such a rejection by Pixol Creative Ltd. of the Project beneficiary’s request will not exempt the Project beneficiary from its obligation to pay within the period referred to in 5.9 above.
5.15 If actions by the Project beneficiary delay completion of the Services, Pixol Creative Ltd. has the right to invoice the Project beneficiary for the cost of all Services provided to date. In such a scenario the Project beneficiary agrees to pay this invoice within thirty (30) days of the invoice date.
5.16 The registration fee is non-refundable under any circumstances.
6. INTELLECTUAL PROPERTY RIGHTS AND DATA PROTECTION
6.1 All Intellectual Property Rights belonging to a party prior to entry into this Agreement shall remain vested in that party. Nothing in this Agreement is intended to transfer any Intellectual Property rights from either party to the other.
6.2 Any use by the Project beneficiary (or the Project beneficiary's affiliated companies or subsidiaries) of the name "Pixol Creative Ltd." or any of Pixol Creative Ltd.'s trademarks or brand names for any reason must be prior approved in writing by Pixol Creative Ltd. Any other use of Pixol Creative Ltd.'s trademarks or brand names is strictly prohibited and Pixol Creative Ltd. reserves the right to terminate this Agreement immediately as a result of any such unauthorized use.
6.3 In the event of provision of certification services, Project beneficiary agrees and acknowledges that the use of certification marks may be subject to national and international laws and regulations.
6.4 All Intellectual Property Rights in any Reports, document, graphs, charts, photographs or any other material (in whatever medium) produced by Pixol Creative Ltd. pursuant to this Agreement shall belong to Pixol Creative Ltd.. The Project beneficiary shall have the right to use any such Reports, document, graphs, charts, photographs or other material for the purposes of this Agreement.
6.5 The Project beneficiary agrees and acknowledges that Pixol Creative Ltd. retains any and all proprietary rights in concepts, ideas and inventions that may arise during the preparation or provision of any Report (including any deliverables provided by Pixol Creative Ltd. to the Project beneficiary) and the provision of the Services to the Project beneficiary.
6.6 Both parties shall observe all statutory provisions with regard to data protection, and shall comply with all applicable requirements statutorily provided by laws of Kenya. To the extent that Pixol Creative Ltd. processes personal data in connection with the Services or otherwise in connection with this Agreement, it shall take all necessary technical and organizational measures to ensure the security of such data (and to guard against unauthorized or unlawful processing, accidental loss, destruction or damage to such data) in line with the law.
7.1 Where a party (the Receiving Party) obtains Confidential Information of the other party (the disclosing party) in connection with this Agreement (whether before or after the date of this Agreement) it shall, subject to Clauses 7.2 to 7.4:
a. keep that Confidential Information confidential, by applying the standard of care that it uses for its own confidential Information;
b. use that Confidential Information only for the purposes of performing obligations under this agreement; and
c. not disclose that Confidential Information to any third party without the prior written consent of the disclosing Party.
7.2 The Receiving Party may disclose the Disclosing Party's Confidential Information on a "need to know “basis:
(a) to any legal advisers and statutory auditors that it has engaged for itself;
(b) to any regulator having regulatory or supervisory authority over its business;
(c) to any director, officer or employee of the Receiving Party provided that, in each case, the Receiving Party has first advised that person of the obligations under Clause 7.1 and ensured that the person is bound by obligations of confidence in respect of the Confidential Information no less onerous than those set out in this Clause 7; and
(d) where the Receiving Party is Pixol Creative Ltd., to any of its subsidiaries, affiliates or subcontractors.
7.3 The provisions of Clauses 7.1 and 7.2 shall not apply to any Confidential Information which:
(a) was already in the possession of the Receiving Party prior to its receipt from the Disclosing Party without restrictions on its use or disclosure;
(b) is or becomes public knowledge other than by breach of this Clause 6.6;
(c) is received by the Receiving Party from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
(d) is independently developed by the Receiving Party without access to the relevant Confidential Information.
7.4 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, any regulatory authority or the rules of any stock exchange on which the Receiving Party is listed, provided that the Receiving Party has given the Disclosing Party prompt written notice of the requirement to disclose and where possible given the Disclosing Party a reasonable opportunity to prevent the disclosure through appropriate legal means.
7.5 Each party shall ensure the compliance by its employees, agents and representatives (which, in the case of Pixol Creative Ltd., includes procuring the same from any sub-contractors) with its obligations under this Clause7.
7.6 No license of any Intellectual Property Rights is given in respect of any Confidential Information solely by the disclosure of such Confidential Information by the Disclosing Party.
7.7 With respect to archival storage, the Project beneficiary acknowledges that Pixol Creative Ltd. may retain in its archive for a the period required by its quality and assurance processes, or by the testing and certification rules of the relevant accreditation body, all materials necessary to document the Services provided.
8.1 No amendment to this Agreement shall be effective unless it is in writing, expressly stated to amend this Agreement and signed by an authorized signatory of each party.
9. FORCE MAJEURE
9.1 Neither party shall be liable to the other for any delay in performing or failure to perform any obligation under this Agreement to the extent that such delay or failure to perform is a result of:
(a) war (whether declared or not), civil war, riots, revolution, acts of terrorism, military action, sabotage and /or piracy;
(b) natural disasters such as violent storms, earthquakes, tidal waves, floods and/or lighting; explosions and fires;
(c) strikes and labour disputes, other than by any one or more employees of the affected party or of any supplier or agent of the affected party; or
(e) failures of utilities companies such as providers of telecommunication, internet, gas or electricity services.
9.2 For the avoidance of doubt, where the affected party is Pixol Creative Ltd. any failure or delay caused by failure or delay on the part of a subcontractor shall only be a Force Majeure Event (as defined below) where the subcontractor is affected by one of the events described above.
9.3 A party whose performance is affected by an event described in Clause 9.1 (a Force Majeure Event)shall:
(a) promptly notify the other party in writing of the Force Majeure Event and the cause and the likely duration of any consequential delay or non-performance of its obligations;
(b) use all reasonable endeavours to avoid or mitigate the effect of the Force Majeure Event and continue to perform or resume performance of its affected obligations as soon as reasonably possible; and
(c) continue to provide Services that remain unaffected by the Force Majeure Event.
9.4 If the Force Majeure Event continues for more than sixty (60) days after the day on which it started, each party may terminate this Agreement by giving at least ten (10) days' written notice to the other party.
10. LIMITATIONS AND EXCLUSIONS OF LIABILITY
10.1 neither party excludes or limits liability to the other party:
(a) for death or personal injury resulting from the negligence of that party or its directors, officers, employees, agents or sub-contractors; or
(b) for its own fraud (or that of its directors, officers, employees, agents or sub-contractors).
10.2 Subject to clause 10.1, the maximum aggregate liability of Pixol creative ltd. In contract, tort(including negligence and breach of statutory duty) or otherwise for any breach of this agreement or any matter arising out of or in connection with the services to be provided in accordance with this agreement shall be the amount of charges due by the project beneficiary to Pixol creative ltd. Under this agreement.
10.3 Subject to clause 10.1, neither party shall be liable to the other in contract, tort (including negligence and breach of statutory duty) or otherwise for any:
(a) Loss of profits;
(b) Loss of sales or business;
(c) Loss of opportunity (including without limitation in relation to third party agreement or contracts);
(d) Loss of or damage to goodwill or reputation;
(e) Loss of anticipated savings;
(f) Cost or expenses incurred in relation to making a product recall;
(g) Loss of use or corruption of software, data or information; or
(h) Any indirect, consequential loss, punitive or special loss (even when advised of their possibility).
10.4 Any claim by the project beneficiary against Pixol creative ltd. (always subject to the provisions of this clause10) must be made within ninety (90) days after the project beneficiary becomes aware of any circumstances giving rise to any such claim. Failure to give such notice of claim within ninety (90) days shall constitute a bar or irrevocable waiver to any claim, either directly or indirectly, in contract, tort or otherwise in connection with the provision of services under this agreement.
11.1 The Project beneficiary shall indemnify and hold harmless Pixol Creative Ltd., its officers, employees, agents, representatives, contractors and sub-contractors from and against any and all claims, suits, liabilities (including costs of litigation and attorney's fees) arising, directly or indirectly, out of or in connection with:
(a) any claims or suits by any governmental authority or others for any actual or asserted failure of the project beneficiary to comply with any law, ordinance, regulation, rule or order of any governmental or judicial authority;
(b) claims or suits for personal injuries, loss of or damage to property, economic loss, and loss of or damage to Intellectual Property Rights incurred by or occurring to any person or entity and arising in connection with or related to the Services provided hereunder by Pixol Creative Ltd., its officers, employees, agents, representatives, contractors an sub-contractors;
(c) the breach or alleged breach by the Project beneficiary of any of its obligations set out in Clause 4 above;
(d) any claims made by any third party for loss, damage or expense of whatsoever nature and howsoever arising relating to the performance, purported performance or non-performance of any Services to the extent that the aggregate of any such claims relating to any one Service exceeds the limit of liability set out in Clause 10 above;
(e) any claims or suits arising as a result of any misuse or unauthorized use of any Reports issued by Pixol Creative Ltd. or any Intellectual Property Rights belonging to Pixol Creative Ltd. (including trade marks) pursuant to this Agreement; and
(f) any claims arising out of or relating to any third party's use of or reliance on any Reports or any reports, analyses, conclusions of the Project beneficiary (or any third party to whom the Project beneficiary has provided the Reports)based in whole or in part on the Reports, if applicable.
11.2 The obligations set out in this Clause 11 shall survive termination of this Agreement.
12. INSURANCE POLICIES
12.1 Each party shall be responsible for the arrangement and costs of its own company insurance which includes, without limitation, professional indemnity, employer's liability, motor insurance and property insurance.
12.2 Pixol Creative Ltd. expressly disclaims any liability to the Project beneficiary as an insurer or guarantor.
12.3 The Project beneficiary acknowledges that although Pixol Creative Ltd. maintains employer's liability insurance, such insurance does not cover any employees of the Project beneficiary or any third parties who may be involved in the provision of the Services. If the Services are to be performed at premises belonging to the Project beneficiary or third parties, Pixol Creative Ltd.'s employer’s liability insurance does not provide cover for non-Pixol Creative Ltd. employees.
13.1 This Agreement shall commence upon the first day on which the Services are commenced and shall continue, unless terminated earlier in accordance with this Clause 13, until the Services have been provided.
13.2 This Agreement may be terminated by:
(a) either party if the other continues in material breach of any obligation imposed upon it hereunder for more than thirty (30) days after written notice has been dispatched by that Party by recorded delivery or courier requesting the other to remedy such breach;
(b) Pixol Creative Ltd. on written notice to the Project beneficiary in the event that the Project beneficiary fails to meet obligations by its due date and/or fails to make payment after a further request for payment; or
(c) either party on written notice to the other in the event that the other makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an encumbrancer takes possession, or a receiver is appointed, and of any other of the property or assets of the other or the other ceases, or threatens to cease, to carry on business.
13.3 In the event of termination of the Agreement for any reason and without prejudice to any other rights or remedies the parties may have, the Project beneficiary shall pay Pixol Creative Ltd. for all Services performed up to the date of termination. This obligation shall survive termination or expiration of this Agreement.
13.4 Any termination or expiration of the Agreement shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1 Pixol Creative Ltd. reserves the right to delegate the performance of its obligations hereunder and the provision of the Services to one or more of its affiliates and/ or sub-contractors when necessary. Pixol Creative Ltd. May also assign this Agreement to any company within the Pixol Creative Ltd. group on notice to the Project beneficiary.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1 This Agreement and the resultant Proposals shall be governed by the law of the Republic of Kenya. The parties agree to submit to the exclusive jurisdiction of the Kenyan Courts in respect of any dispute or claim arising out of or in connection with this Agreement (including any non-contractual claim relating to the provision of the services in accordance with this Agreement).
16.1 If any provision of this Agreement is or becomes invalid, illegal or unenforceable, such provision shall be severed and the remainder of the provisions shall continue in full force and effect as if this agreement had been executed without the invalid illegal or unenforceable provision. If the invalidity, illegality or unenforceability is so fundamental that it prevents the accomplishment of the purpose of this Agreement, Pixol Creative Ltd. and the Project beneficiary shall immediately commence good faith negotiations to agree on an alternative arrangement.
No partnership or agency
16.2 Nothing in this Agreement and no action taken by the parties under this Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties or constitute any party the partner, agent or legal representative of the other.
16.3 Subject to Clause 10.4 above, the failure of any party to insist upon strict performance of any provision of this Agreement, or to exercise any right or remedy to which it is entitled, shall not constitute a waiver and shall not cause a diminution of the obligations established by this Agreement. A waiver of any breach shall not constitute a waiver of any subsequent breach.
16.4 No waiver of any right or remedy under this Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing.
16.5 This Agreement and the Proposal contain the whole agreement between the parties relating to the transactions contemplated by this agreement and supersedes all previous agreements, arrangements and understandings between the parties relating to those transactions or that subject matter. No purchase order, statement or other similar document will add to or vary the terms of this Agreement.
16.6 Each party acknowledges that in entering into this Agreement it has not relied on any representation, warranty, collateral contract or other assurance (except those set out or referred to in this Agreement)made by or on behalf of any other party before the acceptance or signature of this Agreement. Each party waives all rights and remedies that, but for this Clause, might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
16.7 Nothing in this Agreement limits or excludes any liability for fraudulent misrepresentation.
Third Party Rights
16.8 A person who is not party to this Agreement has no right under the Contract (Rights of Third Parties) to enforce any of its terms.
16.9 Each party shall, at the cost and request of any other party, execute and deliver such instruments and documents and take such other actions in each case as may be reasonably requested from time to time in order to give full effect to its obligations under this Agreement.