1. Article – Definitions and Interpretation
1.1. In this Agreement, each Order Form signed by the Customer shall constitute an integral part of the Agreement, together with any Attachments. In the event of any conflict between the provisions of these Terms and Conditions and those of the Order Form, the provisions of the Order Form shall prevail:
1.2. The following definitions and rules of interpretation shall apply to this Agreement:
1.2.1. “Authorized Users” means users authorized by Customer to use the Platform in accordance with the terms of this Agreement. The number of Authorized Users may be limited to a maximum number of users if specified in the Order Form;
1.2.2. “Content” means any product (including photos, videos, virtual tours, etc.) produced by the Supplier for the Customer as a result of the performance of the Production Services;
1.2.3. “Customer” means, in the case of a natural person accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity that has signed one or more Order Forms and therefore the Agreement through such natural person;
1.2.4. “Customer Data” means all data (in any form) provided by Customer (or any Authorized User) to Supplier, or uploaded or hosted on any part of the Services, including the Platform;
1.2.5. “Customer’s Products” means the goods/products/environments that are the subject of the Production Services, owned by or otherwise available to the Customer;
1.2.6. “Fee” means the consideration payable by Customer to Supplier for the Production Services, Platform Services and generally for all Services set forth in the Order Form, as well as any other amount payable to Supplier under this Agreement;
1.2.7. “Force Majeure” means an event or sequence of events beyond the reasonable control of a Party that prevents or delays the performance of its obligations under this Agreement (it being understood that inability to pay is not Force Majeure), including matters relating to the transfer of data over public communications networks and any delays or problems associated with such networks or the Internet;
1.2.8. “Guidelines” means the guidelines for the Production Services prepared by Supplier in agreement with Customer for the performance of the Production Services;
1.2.9. “Intellectual Property Rights” means all copyrights, protection and related rights, invention rights, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, get-up rights, database and data rights, semiconductor chip topography rights, utility models, domain names and all similar rights. These Intellectual Property Rights are relevant whether they have already been registered or not and include applications for protection or registration of such rights. Belonging to the Intellectual Property Rights are all renewals and extensions of such rights or applications for registration/extension; whether acquired, contingent or future rights, without territorial limits;
1.2.10. “Order Form” means the paper or digital order form by which the Customer requests the Services from the Supplier and which incorporates these Terms and Conditions. The Order Form is valid to the extent it is expressly accepted by Supplier;
1.2.11. “Payment Plan” means the manner and timing by which the Customer shall pay the Supplier the Fee for the Services as set forth in the Order Form;
1.2.12. “Personal Account” means the personal account on the Platform made available to Customer and its Authorized Users by Supplier;
1.2.13. “Pixel Moda“, and/or “Supplier“, means company under Italian law Pixel Moda S.r.l., C.F. and P.IVA 12088950964, with registered office in Milan, via Ausonio n. 26, in the person of its legal representative pro tempore;
1.2.14. “Platform” means the cloud-based application, offered as Software-as-a-service, owned by Supplier to which Customer and Authorized Users have access, as set forth in the relevant Order Form;
1.2.15. “Platform Services” means access to the Platform and each additional cloud-based service to which Customer has access through its Personal Account, as set forth and described in the Order Form and its Attachments;
1.2.16. “Production Services“, or “Production“, means the production services for visual and/or audio-visual materials, as well as all other products specified in the relevant Order Form related to the production and post-production of Content. Production Services include the selection and training of photographers/talents, the production of photo shoots and creation of visual and/or audio-visual content, the post-production of Content, and the delivery of the Content covered by the Production Services to the Customer;
1.2.17. “Services” means the Production Services, Platform Services and any other services offered by Supplier from time to time, in accordance with the Order Form.
2. Article – Order Form and Services
2.1. Customer may order the Services at any time by using one or more Order Forms. Each Order Form is valid to the extent that it has been fully accepted by the Supplier.
2.2. In the event of any conflict between the Order Form (including its attachments, if any) and these Terms and Conditions, the Order Form shall prevail.
2.3. Upon full and timely payment of the Fee by the Customer, the Supplier shall provide the Services specified in the Order Form to the Customer in a workmanlike manner and in accordance with the Customer’s requirements specified in the Order Form, in accordance with these Terms and Conditions and the Guidelines, using means, resources and personnel in full autonomy.
3. Article – Term
3.1. This Agreement shall become effective on the start date specified in the Order Form and shall have the duration specified in the Order Form.
3.2. Only if expressly provided in the Order Form, the Agreement shall automatically renew for successive periods of 1 (one) year each, unless either Party gives the other 30 (thirty) days prior written notice of its intention not to renew.
3.3. In the event more than one Order Form is signed by the same Customer and the Supplier, each Order Form shall remain in effect for the term and for the Services set forth therein, unless otherwise provided.
4. Article – Production Services
4.1. Reservation and execution of the Production Services specified in the Order Form shall take place in the manner and timing set forth below.
4.2. Procedure for Reservation of Production Services. Unless the Parties agree in writing on a different procedure, the reservation of Production Services is made through the following procedure:
4.2.1. the Customer sends a request to the e-mail address indicated by the Supplier from time to time, specifying the number of Customer Products, the type of Production Services requested and the date for the execution of the Production Services (“Request for Production Services“);
4.2.2. the Supplier, by e-mail communication, may: (a) confirm its willingness to accept the Request for Production Services; (b) propose a different date, to be agreed with the Customer; (c) reject a Request for Production Services that does not comply with the specifications of the Order Form;
4.2.3. once the date for the execution of the Production Services has been identified (“Execution Date“), the Customer agrees to confirm the requested Production Service within 5 (five) days prior to the Execution Date (“Confirmation Deadline“) by sending an e-mail notice to the same address as indicated in Clause 4.2.1 above. If the Customer does not confirm the Production Service within the Confirmation Deadline, the Production Service shall be deemed to have been undoubtedly cancelled. The Supplier cannot be held responsible for the Customer’s failure to confirm the Production Service within the Confirmation Deadline. The Customer acknowledges that timely confirmation of the Production Service is essential to enable the Supplier to arrange the resources and means necessary to perform the requested Services and expressly declares that it understands and accepts the terms and conditions for booking and confirming the Production Services.
4.3. Method of Delivery of Customer’s Products. In the event that the Production Services are performed at Supplier’s premises (as specified in the Order Form), Customer agrees to deliver to Supplier, at its own expense, the Customer Products that are the subject of the Request for Production Services at least 48h (forty-eight hours) in advance of the Execution Date (“Customer Products Delivery Deadline“), unless a different deadline is set forth in the Order Form. Customer acknowledges that, in the event of failure to deliver Customer’s Products by the Customer Products Delivery Deadline, Supplier: (i) may not be able to meet the Content Delivery Deadline set forth below; (ii) may, at its discretion, apply the penalty set forth in Section 5 (below) for late cancellation/re-scheduling requests.
4.4. Minimum Quantity. Customer agrees to deliver to Supplier a quantity of Customer Products at least equal to the minimum quantity specified in the Order Form for the requested Production Service (“Minimum Quantity“). In the event that Customer delivers to Supplier a quantity of Customer’s Products less than the Minimum Quantity, Supplier may, at its discretion, impose a daily penalty of Euro 300.00 (three hundred/00) per Set.
4.5. Preparation of Sets and Delivery of Content. Supplier, upon receipt of Customer’s Products: (i) prepares and activates the production environments (“Sets“) on the Execution Date; (ii) delivers the Content in the manner and within the timeframe specified in the Order Form (“Content Delivery Deadline“). If not otherwise specified in the Order Form, the Content Delivery Deadline shall be 5 (five) days.
4.6. Storage and custody of Customer’s Products. In the event that the Production Services are performed at Supplier’s premises (as specified in the Order Form), Supplier agrees to store Customer’s Products with care and diligence. In the different case where the Production Services are performed at the Customer’s premises (as specified in the Order Form), the Supplier has no custody obligation except for the time strictly necessary to perform the Production Services. Supplier’s liability arising from a breach of this Clause shall be limited to the list price of Customer’s Products damaged and/or misappropriated, where list price means the price normally charged by Customer in the sale of such Products.
4.7. Collection of Customer’s Products. In the event that the Production Services are performed at Supplier’s premises (as specified in the Order Form), once the Production Services have been performed, Customer’s Products shall be returned to Customer in the following alternative manners, as specified in the Order Form or as expressly agreed in writing by the Parties: (a) Customer shall arrange for collection of Customer’s Products, at Customer’s expense, no later than 5 (five) days after receipt of the Content relating to such Customer Products; alternatively, (b) Supplier shall arrange for delivery of Customer’s Products to Customer within the same time period as set forth in (a) above. If nothing is specified in the Order Form and there is no agreement in writing between the Parties, the method of collection set forth in (a) above shall apply.
4.8. Re-works. Customer, upon receipt of the Content, may request that Supplier make corrections, provided they conform to the Guidelines, as many times and within the limits set forth in the Order Form (“Re-works“). The Supplier reserves the right to refuse to execute Re-works that fall outside the specifications of the Guidelines, that fall outside the limits indicated in the Order Form, or that depend on a fact of the Customer (who, for example, had misstated the technical specifications in the Request for Production Services). Unless the Parties have stipulated different timelines (due to the difficulty underlying the execution of the Re-work Request), the Supplier shall deliver the Content to the Customer after performing the Re-work with the timelines for delivery of the Content set forth in Clause 4.5 above. Requests for Re-work in addition to the aforementioned limits may be fulfilled only upon payment of an additional Fee, indicated in the Order Form or previously agreed in writing between the Parties.
4.9. Re-shoots. Where correction cannot be accomplished by Re-work, Customer, upon receipt of the Content and within the limits set forth in the Order Form, may request Supplier to re-perform certain Production Services, subject to the Guidelines. A request for Re-work may be granted only on the condition that the Content that is the subject of the request is manifestly inconsistent with the Guidelines and/or documentable requests that the Customer made prior to the execution of the Production Services. The Supplier reserves the right to refuse the execution of Re-shoot requests that fall outside the specifications of the Guidelines, that fall outside the limits indicated in the Order Form, or that depend on a fact of the Customer (who, for example, had misstated the technical specifications in the Request for Production Services). Requests for Re-shoots in addition to the limits referred to above may be fulfilled only upon payment of an additional Fee, indicated in the Order Form or previously agreed upon in writing between the Parties.
5. Article – Cancellations and Requests for Rescheduling of Production Services
5.1. If the Customer requests cancellation or rescheduling of a Production Service:
5.2.The request for cancellation or rescheduling shall be sent in the same manner as for the Request for Production Services in Clause 4.1, unless otherwise agreed by the Parties. Requests sent through other channels/means will not be considered valid.
6. Article – Customer’s Obligations for Production Services
6.1. The Customer undertakes to provide and/or deliver, as the case may be, all information, materials, locations, products or anything that is the subject of the realization of the Production Services.
6.2. The Customer warrants to the Supplier that it has the power and right to use the locations, products or in general anything that is necessary for the realization of the Content and the performance of the Production Services and that it is not aware of any limitations and/or restrictions relating to the creation of the Content and/or any other rights of third parties, such as intellectual property rights, that may otherwise affect the validity and performance of the Agreement.
6.3. The Customer agrees to indemnify the Supplier against any rights, claims and/or demands of third parties relating to or connected with the breach of the warranties set forth in this Article 6 and in general against any damages or costs incurred by the Supplier due to and in connection with the Customer’s breach of its obligations under this Agreement.
7. Article – Platform Services
7.1. Upon signing this Agreement and subject to the terms of this Agreement, the Supplier grants the Customer a personal, non-exclusive and non-transferable right to use the Platform for the duration of the Agreement. The Customer may use the Platform Services through the Personal Account activated by the Supplier.
7.2. Customer acknowledges that the Platform Services do not include (i) any services, systems, or equipment necessary to access the Internet (and that Customer is solely responsible for Internet access and all costs and expenses related to Internet access, communications, data transmission, and wireless or mobile charges incurred in connection with the use of the Services); (ii) disaster recovery measures (and Customer shall ensure that backups of all Customer Data are maintained at all times).
7.3. Supplier may from time to time provide new versions or updates to the Platform, at no additional cost to Customer, in order to correct errors or update security, improve overall performance, enhance Platform features and functionality, or support new devices and operating systems.
7.4. Customer acknowledges that Supplier has the right to change the features and functionality of the Platform, provided that such changes do not materially adversely affect Customer’s and Authorized Users’ use of the Platform.
7.5. Customer agrees to use the Platform exclusively for its own internal activities. Any of the following uses are expressly excluded to the maximum extent permitted by law: copying, reproducing, publishing, distributing, redistributing, transmitting, modifying, adapting, editing, abstracting, storing, archiving, publicly displaying or to third parties, selling, licensing, renting, assigning, transferring, disclosing (in each case for a fee or free of charge) or in any way commercially exploiting any part of the Platform Services; combine, merge or otherwise allow the Platform Services to be incorporated into any other program or service, or arrange for or create derivative works based on them (in whole or in part); or attempt to reverse engineer, observe, study or test the operation of or de-compile the Platform Services.
7.6. Authorized Users. Customer shall ensure that only Authorized Users use the Personal Account in Platform and that such use is in compliance with this Agreement at all times. Customer shall be responsible for the acts and omissions of Authorized Users as if they were its own. Customer shall also comply (and shall ensure that all Authorized Users comply) at all times with all applicable laws relating to the use or receipt of Platform Services, including laws relating to privacy, data protection, and use of systems and communications.
7.7 Support. Supplier will use reasonable efforts to notify Customer in advance of scheduled maintenance work, but Customer acknowledges that Customer may not receive advance notification for downtime caused by Force Majeure or other emergency maintenance work. The Supplier shall provide Platform Services with at least 98% availability (uptime) during each calendar month. The following will be considered permitted downtime: (a) scheduled maintenance; (b) emergency maintenance; or (c) downtime caused in whole or in part by Force Majeure. Supplier shall be relieved of its liability with respect to any failure to provide the Services at the service levels set forth above if, and to the extent, such failure is attributable to any of the following: (i) Customer’s failure to comply with any of its obligations under this Agreement; or (ii) a Force Majeure event. The Supplier will provide assistance to the Customer during normal business hours, Monday through Friday.
8. Article – Fees
8.1. The Customer shall pay Fees to the Supplier in the manner and terms of payment specified in the Order Form. the Supplier shall have the right to issue invoices in accordance with the Order Form.
8.2. Unless otherwise stipulated in the Order Form, the Customer shall pay the invoices issued by the Supplier for the Services no later than 30 (thirty) days from the date of receipt of the invoice.
8.3. If the Customer fails to pay the amounts due within 60 (sixty) days from the relevant due date, the Supplier reserves the right, at its sole discretion, to suspend the provision of the Services, as well as any license granted to the Customer, until the outstanding amounts are paid in full by the Customer.
8.4. The Supplier shall not refund to the Customer any prepaid and unused Services as of the date of termination of the Agreement (for any cause).
8.5. The Customer is responsible for providing valid and current payment information and agrees to promptly report any relevant changes.
8.6. Unless otherwise stated, travel expenses are included in the Fee stated in the Order Form.
8.7. The Fee is exclusive of VAT.
9. Article – Intellectual Property
9.1. Customer’s Intellectual Property Rights in the Content. Except as provided in Clause 9.2 with respect to Intellectual Property Rights in Content depicting persons in a recognizable manner and subject to the limitations imposed by applicable law, upon full and punctual payment of the Fee, Supplier assigns to Customer all economic rights to the Content.
9.2. Intellectual Property Rights to Content depicting persons in a recognizable manner. For Content depicting model(s) in a recognizable manner, notwithstanding the provisions of Clause 9.1 above, upon full and punctual payment of the Fee, Supplier grants Customer an exclusive, worldwide, non-transferable, non-sublicensable license to use such Content online, unless otherwise provided in each Order Form, for the term specified in the Order Form and subject to applicable law. The content and limits of the license are specified in detail in the Order Form and depend on the rights that are granted to the Supplier by the modelling agency(ies) and/or model(s). The Customer may not transfer and/or sub-license Content depicting a model(s) to third parties, except as otherwise provided in each Order Form. The Supplier shall in no event be liable for any claim related or connected to the Customer’s misuse of Content depicting model(s).
9.3. Supplier’s Intellectual Property Rights in the Content. Customer grants Supplier a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to use the Content produced on Customer’s behalf for (i) the promotion of Supplier’s business (i.e., the publication of the visual content on Supplier’s website, social channels, catalogues, promotional materials, and presentation of Supplier’s business); (ii) the training of Supplier’s personnel as well as the development and improvement of software and technology, including the Platform; and (iii) the conduct of statistical and market analysis of the use of the visual content. The license under (ii) and (iii) includes Supplier’s right to sub-license the Content to its digital content providers for the same purposes.
9.4. Other Intellectual Property Rights. All Intellectual Property Rights relating to the Platform and Services, as well as any materials, software, know-how and Intellectual Property Rights in general of Supplier, belong and will remain the property of Supplier or the relevant third-party owner. All Intellectual Property Rights in Customer’s materials and Data belong to and will remain the property of Customer or the relevant third-party owner. Customer and Authorized Users may store or transmit Customer Data using the Platform and the Platform may interact with Customer’s systems. Customer hereby grants to Supplier (and each of its direct and indirect subcontractors) a non-exclusive, non-transferable, royalty-free license to use, copy, and otherwise make use of Customer Data and Customer materials to the extent necessary to perform or provide the Services or to exercise or perform Supplier’s rights, remedies, and obligations under this Agreement.
9.5. Except for the rights expressly granted in this Agreement, Customer shall in no way acquire any title, ownership rights or intellectual property rights of any nature in the Services and no intellectual property rights of any Party are transferred or licensed as a result of this Agreement.
9.6. Intellectual Property Rights in Customer’s Name/Logo. During the term of this Agreement, Customer grants Supplier a limited, revocable, non-exclusive, non-transferable, worldwide, royalty-free license to use Customer’s name, logo and trademark for the purpose of referring to Supplier’s provision of the Services in Supplier’s sales and promotional materials, including its website.
9.7. Feedbacks. Supplier may use any feedback and suggestions for improvement relating to the Services provided by Customer, its affiliated companies, or any Authorized Users without charge or limitation (“Feedback“). Customer assigns (or will procure the assignment of) all intellectual property rights in the Feedback with full title guarantee (including through this assignment of future intellectual property rights) to Supplier at the time such Feedback is first provided to Supplier.
10. Article – Customer Data
10.1. Customer Data (including personal data) remains the property of the Customer or the third-party owner.
10.2. Except to the extent Supplier has direct obligations under data protection laws, Customer acknowledges that Supplier has no control over what Customer Data is hosted as part of the provision of the Services and cannot actively monitor or have access to the content of Customer Data. Customer shall ensure (and is solely responsible for) the accuracy, quality, integrity, and legality of Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.
10.3. Customer shall indemnify and hold Supplier harmless in the event that Supplier suffers any loss, claim, damage, incurs liability or incurs costs or expenses (including legal and professional fees) as a result of a third party’s claim that Customer Data infringes rights, including Intellectual Property Rights, of third parties.
10.4. In the event Supplier processes Personal Data on behalf of Customer and following Customer’s instructions, thus acting as a data processor with respect to such data, in compliance with applicable data protection legislation (including EU Regulation No. 2016/679 “GDPR“), the Parties agree to enter into a separate Data Protection Addendum, which shall form an integral part of the Agreement.
10.5. Supplier shall make Customer Content and Customer Data available for export or download for 30 (thirty) days from the effective date of termination of the Agreement (for any cause). Thereafter, Supplier shall have no obligation to maintain or provide any Customer Content and/or Data and, unless prohibited by law or order of authority, Supplier shall delete all Customer Content and Data, except as provided in Clause 9.3.
11. Article – Confidential Information
11.1. The Parties jointly agree to treat this Agreement and all documents and technical information communicated for the execution of this Agreement as strictly confidential. The Parties undertake to keep such documents and information confidential and not to disclose them to third parties and to take all necessary measures (including with their own personnel and/or employees) to prevent their disclosure, as well as not to use such information for reasons other than the execution of the Agreement.
11.2. The confidentiality obligation herein shall remain in effect until the third anniversary of the termination of the Agreement.
12. Article – Limitation of Liability
12.1. Subject to Clause 12.3, Supplier’s aggregate liability in any way arising out of or in connection with this Agreement (including all Order Forms) shall not exceed an amount equal to the Fee for all Services paid or payable to Supplier during the 12 (twelve) month period immediately preceding the first occurrence giving rise to any claim under this Agreement and in connection with liability arising out of this Agreement, including the Data Protection Addendum (if applicable).
12.2. Subject to Clause 12.3, the Supplier shall not be liable for any consequential, direct or indirect losses and for any breach, delay or default in the performance of this Agreement to the extent that such occurrences or the circumstances giving rise to them arise out of or were caused by any breach of this Agreement by the Customer or by events of Force Majeure.
12.3. Notwithstanding any other provision of this Agreement, Supplier’s liability shall not be limited in any way with respect to: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other loss or damage, compensation for which cannot be excluded or limited by applicable law.
13. Article – Termination and Effects of Termination
13.1. Express Termination Clause. The Supplier, by appropriate written notice (including by e-mail) to be sent to the Customer, may terminate the Agreement, with immediate effect, in the event that the Customer: (a) defaults on its obligations under Art. 6; (b) fails to pay 2 (two) invoices, including non-consecutive invoices (without prejudice to Supplier’s right to suspend the provision of the Services pursuant to Clause 8.3); (c) ceases operations, chooses to dissolve itself, is insolvent, goes bankrupt, commits an act of bankruptcy, files for bankruptcy or enters into agreements with creditors to repay the debt.
13.2. Express Termination Clause. The Supplier, by appropriate written notice (including by e-mail) to be sent to the Customer, may terminate the Agreement, with immediate effect, in the event that the Customer: (a) defaults on its obligations under Art. 6; (b) fails to pay 2 (two) invoices, including non-consecutive invoices (without prejudice to Supplier’s right to suspend the provision of the Services pursuant to Clause 8.3); (c) ceases operations, chooses to dissolve itself, is insolvent, goes bankrupt, commits an act of bankruptcy, files for bankruptcy or enters into agreements with creditors to repay the debt.
14. Article – Assignment and Subcontracting
14.1. Except as expressly provided in this Agreement, the Supplier may at any time assign, sub-contract, sub-licence, transfer, any or all of its rights or obligations under this Agreement.
14.2. Except as expressly permitted by this Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, any or all of its rights or obligations under this Agreement (including the license rights granted), in whole or in part, without the Supplier’s prior written consent.
15. Article – No Partnership or Agency
15.1. The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.
16. Article – Miscellaneous
16.1. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
16.2. If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
16.3. Any amendments to this Agreement shall be agreed in writing by the Parties.
16.4. The Parties agree that the communications related to the Agreement shall be made by email, unless otherwise provided. The electronic documents, including emails, shall be deemed evidence of the communications and of the agreements between the Parties. The Parties waive the right to rise objections to the value of the documents in compliance with this article.
17. Article – Governing Law and Jurisdiction
17.1. This Agreement and any dispute or claim arising out of, or in connection with, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Italy.
17.2. The Parties irrevocably agree that the courts of Milan (ITALY) shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims), with exclusion of any other court.