Master Terms and Conditions of Service

thepixel

�1

Table of Contents

Company Information 3 ..........................................................................................................................Master terms & conditions of service 4 ................................................................................................Schedule 1: Support & maintenance 19 ..............................................................................................Schedule2: Hosting Services 25 .............................................................................................................Schedule 3: Online marketing services 31...........................................................................................

�2

Company Information The TVG Media Ltd t/a The Pixel Web Design Services 4 Osprey Court, Hawkfield Way, Bristol, BS14 0BB.

Telephone: 0117 3136 010

Website: www.thepixel.com

Company number :4253971

�3

Master terms & conditions of service These Terms and Conditions shall apply to the provision of Services by TVG Media Ltd (Company No. 04253971) whose registered office is at Unit 4, Osprey Court, Hawkfield Way, Hawkfield Business Park, Bristol BS14 0BB, trading as The Pixel (“TVG Media”) to the Client (as defined below).

The Client:

Registered Address:

1. Definitions and Interpretation

1.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:

�4

“Business Day” means any day on which banks generally are open for the transaction of normal banking business in England;

“Client” means the person or organisation who purchases Services from TVG Media;

“Client Materials” means documents, materials, data and information provided by or on behalf of the Client to TVG Media to enable TVG Media to perform its obligations under this Agreement, including the specific materials requested by TVG Media;

“Commencement Date”

means the date the Services were agreed between the Parties or the provision of Services commenced to the Client, whichever was sooner;

“Deliverables” the deliverables to be provided by TVG Media to the Client as identified in the Specification, which may include all or some of the following: software, documentation, services and other deliverables;

“Fees” means the fees for the Services as notified by TVG Media to the Client and payable by the Client under Clause 4 in accordance with the Terms of Payment;

“Open Source Software”

any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (http://www.opensource.org/docs/definition.php) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html) or anything similar, that is included with or used in, or in the development of, the Deliverables, or with which the Deliverables are compiled or to which they are linked;

“Services” means the services to be provided by TVG Media to the Client as described in the Specification;

“Specification” means the description of the proposed Services and Deliverables as provided to the Client by TVG Media from time to time, or as set out (if applicable) on TVG Media’s website or in any other relevant TVG Media documentation;

“Term” has the meaning set out in clause 7.1 of these Terms and Conditions;

“Terms of Payment”

means the terms of payment of the Fees in accordance with TVG Media’s standard payment terms as communicated to the Client.

�5

1.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:

1.2.1. “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3. “these Terms and Conditions” is a reference to these Master Terms and Conditions of Service and any Schedules as may be amended or supplemented from time to time;

1.2.4. a Schedule is a schedule to these Terms and Conditions; and

1.2.5. a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.

1.2.6. a “Party” or the “Parties” refer to the parties to these Terms and Conditions.

1.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.

1.4. Words imparting the singular number shall include the plural and vice versa.

1.5. In the event of any conflict or inconsistency between these Terms and Conditions and any Schedule, the following order of precedence shall apply (solely to the extent of any such conflict or inconsistency): the relevant Schedule, and then these Terms and Conditions (unless expressly otherwise agreed by the Parties in writing).

2. Formation of Contract

2.1. These Terms and Conditions shall apply to any Services and/or Deliverables provided by TVG Media to the Client.

“Third Party Software”

the software programs proprietary to third parties that may be provided to the Client with or as part of the Deliverables, as may be identified in the Specification.

�6

2.2. Any application or request by the Client to receive TVG Media’s Services or payment by the Client of any Fees (in whole or part), whichever is earlier, constitutes an offer by the Client to purchase the Services in accordance with these Terms and Conditions.

2.3. TVG Media may request the Client sign or otherwise formally confirm its acceptance of these Terms and Conditions and any Specifications. A binding contract for supply of the Services shall come into existence between TVG Media and the Client when TVG Media receives the Client’s signature or confirmation; or in the absence of such signature or confirmation, upon payment by the Client and TVG Media commencing performance of the relevant Services (whichever is earlier).

2.4. These Terms and Conditions apply to the contract formed between the parties to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3. The Deliverables and the Services

3.1. With effect from the Commencement Date TVG Media shall, in consideration of payment of the Fees by the Client in accordance with the Terms of Payment, provide or procure the provision to the Client of the Services and Deliverables set out in the Specification, which may include:

3.1.1. website development services;

3.1.2. support and maintenance services (subject to the provisions of Schedule 1);

3.1.3. hosting services (subject to the provisions of Schedule 2); and/or

3.1.4. online marketing services (subject to the provisions of Schedule 3);

in accordance with the Specification and these Terms and Conditions.

3.2. TVG Media will use reasonable care and skill to perform the Services.

3.3. TVG Media shall use all reasonable endeavours to complete its obligations under these Terms and Conditions, but time will not be of the essence in the performance of these obligations unless specified and agreed in writing between the Parties.

�7

3.4. Work will be completed during the Business Day; work that is required outside of the Business Day will require additional payment. Work out of the Business Day will need to be scheduled depending on availability and may affect deadlines.

4. Fees & Payment

4.1. The Client agrees to pay the Fees in accordance with the Terms of Payment.

4.2. The Client will pay TVG Media for any additional agreed services provided by TVG Media in accordance with TVG Media’s then current applicable daily rate in effect at the time of the performance or such other rate as may be agreed so long as the additional services are covered by a written or emailed agreement.

4.3. All Fees payable by the Client pursuant to these Terms and Conditions are exclusive of any value added or other tax (except corporation tax) or other taxes on profit, for which the Client shall be additionally liable.

4.4. All payments required to be made pursuant to these Terms and Conditions by the Client shall be made within thirty (30) days of the date of the relevant invoice in UK Pounds Sterling in cleared funds to such bank as TVG Media may from time to time nominate, without any set-off, withholding or deduction whatsoever.

4.5. Save where the Client has a legitimate bona-fide dispute in relation to the provision of services by TVG Media under these Terms and Conditions (in which case clause 4.6 shall apply), if the Client fails to make any payment on the due date then TVG Media shall, without prejudice to any right which TVG Media may have pursuant to any statutory provision in force from time to time, have the right to:

4.5.1. charge the Client interest on a daily basis at an annual rate equal to five per cent (5%) above the base rate of the Bank of England from time to time on any undisputed sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgment; and/or

4.5.2. suspend all Services and/or retain any Deliverables until the relevant payment has been made in full.

4.6. In the event of a bona-fide dispute regarding any invoice, the Client shall promptly notify TVG Media in writing and the parties shall attempt promptly and in good faith to resolve any dispute regarding the amounts owed. In each such case, the

�8

Client shall pay all undisputed amounts on or before the due date for payment of such invoice.

4.7. TVG Media is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from Fees billed by TVG Media in accordance with the Terms of Payment. Currency exchange settlements will be based on agreements between the Client and the provider of the Client’s credit card.

4.8. Unless otherwise agreed in a Specification, TVG Media reserves the right to increase any Fees from time to time subject to providing thirty (30) days written notice to the Client of such increases. If the proposed increase exceeds five per cent (5%) and such increase is not acceptable to the Client, it can notify TVG Media in writing within fourteen (14) days of the date of TVG Media’s notice and TVG Media shall have the right without limiting its other rights or remedies to terminate this Agreement on fourteen (14) days written notice to the Client, in which case clause 7.3 shall apply.

5. Client Obligations

5.1. At all times, throughout the Term, the Client shall comply with all obligations set out herein and in the Schedules, and shall:

5.1.1. co-operate with TVG Media in all matters relating to the Services;

5.1.2. provide access to all Client personnel and timely decision-making reasonably required by TVG Media in order to provide the Services;

5.1.3. provide TVG Media, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with all information, materials and resources as reasonably requested by TVG Media or set out in the Specification;

5.1.4. provide to TVG Media, by the specified date on the Specification, the Client Materials as reasonably requested by TVG Media or set out in the Specification and ensure that such Client Materials are accurate in all material respects; and

5.1.5. if TVG Media is required by the Client to work with third parties, procure that such third parties to keep to any deadlines set and be available for communication with TVG Media during the Business Day.

�9

5.2. TVG Media shall not be liable for any loss, damage or delay or failure to provide the Services caused by or arising from the Client's failure to comply with its obligations under these Terms and Conditions, and the time for performance of TVG Media’s obligations under these Terms and Conditions shall be extended as a result thereof. In the event that a due date or milestone for payment of the Fees or part thereof is delayed due to the Client's delay or failure to comply with its obligations hereunder, the Fees shall remain payable in accordance with the original agreed timetable for payment.

5.3. TVG Media shall not be responsible for products or services supplied which incorporate or are based upon information or materials supplied by the Client or third parties. Responsibility for decisions taken on the basis of advice given by TVG Media will remain with the Client.

5.4. The Client hereby indemnifies TVG Media in full and on demand in respect of any costs, claims, damages or liabilities arising from any delay or failure by the Client to comply with its obligations under these Terms and Conditions, and where any such failure results in TVG Media spending additional time and expense to fulfill the Services, TVG Media shall be entitled to charge the Client for such time at TVG Media’s then current time and materials rates.

6. Variation and Amendments

6.1. If the Client wishes to request a change or modification to the Services or Deliverables throughout the term of these Terms and Conditions (“Change”) the Client may submit a written request for a change (“Change Request”) at any time and shall, in such case, also provide TVG Media with any information that TVG Media may reasonably request in connection with the Change Request.

6.2. Following receipt of a Change Request, TVG Media shall submit a “Change Control Notice” to the Client, meaning a written response to a Change Request setting out the delays and additional cost, if any, that would arise as a result of the requested Change and any other effects that such Change will have on the relevant Deliverables.

6.3. Following receipt of a Change Control Notice, the Client may elect to accept the terms of the Change Control Notice, and shall notify TVG Media in writing or by e-mail of its decision to accept or not to accept such terms. In the event that the Client accepts the terms of the Change Control Notice, the Specification, Services or Deliverable requirements shall be deemed to be amended, or a new service specification may be executed to reflect the Change.

�10

6.4. If, due to circumstances beyond TVG Media’s control, it has to make any change in the arrangements relating to the provision of its Services it shall notify the Client immediately. TVG Media shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.

6.5. Notwithstanding the foregoing, a Specification may be amended by agreement in writing or confirmed via email by both parties.

7. Termination

7.1. This Agreement shall commence on the Commencement Date and shall continue for the agreed term for the Services as set out in the Specification or agreed otherwise between the parties (“Term”), unless otherwise terminated in accordance with this clause 7. Unless otherwise agreed in a Specification, any Services package the Client shall automatically renew for an additional Term period unless the Client provides TVG Media written notice of termination at least thirty (30) days prior to the expiry of the Term.

7.2. Either Party may terminate the contract between the Parties under these Terms and Conditions immediately if:

7.2.1. the other Party is in material breach of any of its obligations hereunder, and that Party has failed to remedy such breach within thirty (30) days of written notice by the other Party (if such breach is capable of remedy);

7.2.2. the other Party has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with his creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of his undertakings or assets;

7.2.3. Either Party has become bankrupt or shall be deemed unable to pay his debts by virtue of Section 123 of the Insolvency Act 1986; or

7.2.4. Either Party ceases or threatens to cease to carry on business; or

7.2.5. These Terms and Conditions or any Schedule provide for an express termination right.

7.3. In the event of any termination of these Terms and Conditions:

�11

7.3.1. TVG Media shall retain any sums already paid to it by the Client without prejudice to any other rights TVG Media may have whether at law or otherwise; and

7.3.2. The Client shall immediately pay to TVG Media all of TVG Media’s outstanding unpaid invoices, expenses and interest in respect of any Services supplied (provided that the Client shall not be obliged to pay for any part of the Service that is has not been completed with reference to the Specification); and

7.3.3. the accrued rights, remedies, obligations and liabilities of the Parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and

7.3.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.

8. Sub-Contracting

8.1. TVG Media may sub-contract the performance of any of its obligations under these Terms and Conditions, provided that TVG Media shall be at all times responsible for all acts or omissions of the appointed sub-contractor as if it were an act or omission of TVG Media itself.

9. Intellectual Property

9.1. Except for the rights expressly granted in this Agreement, nothing in this Agreement will serve to transfer from the Client to TVG Media any of the Client Materials, and all right, title and interest in and to the Client Materials will remain exclusively with the Client.

9.2. The Client grants to TVG Media a non-exclusive, worldwide, non-assignable, royalty-free licence to use the Client Materials for the sole purposes of performing its obligations under this Agreement and (where required) for inclusion in the Deliverables. The Client warrants and represents that is has obtained all necessary permissions and licences to use the Client Materials for inclusion in the Deliverables.

9.3. Subject to payment of the Charges and clauses 9.5 and 9.6, TVG Media hereby assigns to the Client by way of present and future assignment the intellectual property rights in and to the Deliverables (excluding any Third-Party Software, Open-Source Software and/or ERP integration software).

�12

9.4. Immediately on completion of any Deliverables, TVG Media shall deliver to the Client the updated and annotated software source code for the bespoke software elements of the Deliverables (but excluding the Third-Party Software).

9.5. If any Deliverables (in whole or in part) are comprised of or contain any Third-Party Software and/or Open-Source Software:

9.5.1. TVG Media shall provide all Third-Party Software to the Client under the licence terms provided by the relevant third parties, copies of which shall be provided to the Client, and the Client agrees to be bound by such licence terms. The Client may be required to buy licences for each third-party module and the agreement for these shall remain with the Client; and

9.5.2. the Open-Source Software may be used by the Client according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but such software is provided "as is".

9.6. TVG Media reserves all rights to the ERP integration software, but in consideration of payment of the Fees, TVG Media hereby grants to the Client a perpetual, worldwide, non-transferable licence (without the right to sublicence) to use the ERP integration software with the Deliverables for its own internal business purposes.

9.7. Nothing in these Terms and Conditions shall prevent TVG Media from using any know-how, methods, techniques or procedures owned or developed by TVG Media in the course of providing the Services and/or Deliverables for any purpose.

9.8. All other third party intellectual property rights required by the Client to enable them to use the Deliverables shall be procured by the Client. TVG Media shall not be liable for any delay or failure of the Client to procure such third party intellectual property rights.

9.9. To the maximum extent permitted by applicable law, the Client acknowledges and agrees that the Services and Deliverables are used by Client at Client’s sole risk and are provided ‘as is’ without warranty of any kind, either express or implied, including, but not limited to, any (if any) implied warranties of merchantable quality, conditions of fitness for a particular purpose and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed. TVG Media does not guarantee, warrant or make any representation that the Deliverables will meet the Client's requirements, or that the operation of any software forming part of the Deliverables will be uninterrupted or error-free, or that defects in such software

�13

will be corrected. Furthermore, TVG Media does not guarantee, warrant or make any representation regarding the use or the results of the use of the Deliverables in terms of their correctness, accuracy, reliability, currentness or otherwise. No oral or written information or advice given by TVG Media or an authorised representative of TVG Media shall or shall be deemed to create a warranty. All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement, whether express or implied by statute, common law, trade usage or otherwise and whether written or oral, are hereby expressly excluded to the fullest extent permissible under applicable law.

10. Liability and Indemnity

10.1. Nothing in this Agreement limits or excludes the liability of either party for death or personal injury resulting from negligence, or for any damage or liability incurred by the other party as a result of fraud or fraudulent misrepresentation by that party, or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982.

10.2. In the event that TVG Media fails to comply with any of its obligations under these Terms and Conditions then it shall be given a reasonable opportunity to correct any errors and re-perform its obligations hereunder.

10.3. In the event that any failure by TVG Media to comply with its obligations is not remedied pursuant to clause 10.2, subject to clause 10.1 TVG Media’s maximum aggregate liability under or in connection with this contract, whether in contract, tort (including negligence) or otherwise, shall not exceed 100% of the value of the payments made to TVG Media by the Client for the provision of Services in the preceding 12 months.

10.4. Subject to clause 10.1, in no event shall TVG Media be liable for:

10.4.1. any consequential, indirect or economic loss or damage, loss of profits or revenue, loss of savings, interest or production, loss of anticipated savings, loss of data, loss of business or business benefit, loss of reputation or goodwill, whether such losses or damages arise in contract or tort;

10.4.2. any loss that results from Services supplied which incorporate or are based upon information or materials supplied by the Client or third parties; or

10.4.3. any loss, damage or delay in providing the Services caused by or arising from the Client’s failure to comply with its obligations under these Terms and Conditions.

�14

10.5. The Client shall indemnify TVG Media against all damages, costs, claims and expenses suffered by TVG Media arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agents or employees.

10.6. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform these Terms and Conditions and that those signing or otherwise indicating acceptance to these Terms and Conditions are duly authorised to bind the party for whom they sign or accept.

11. Force Majeure

11.1. Neither the Client nor TVG Media shall be liable for any failure or delay in performing their obligations under these Terms and Conditions where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.

11.2. If any of the events referred to in clause 11.1 prevents a Party from performing their obligations under these Terms and Conditions for more than two (2) months, either party shall have the right to terminate these Terms and Conditions immediately by giving written notice to the other party.

12. Promotion, Confidentiality & Data Protection

12.1. TVG Media reserves the right to display information on the work completed for the Client on any TVG Media promotional activities. TVG Media will seek written approval from the Client before any publication is posted.

12.2. Each party, including sub-contractors, undertakes not to use the other party's Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement. Confidential Information means any information or secrets relating to the other Party’s corporate and marketing strategy, business development and plans, sales reports and research results, customer lists, business methods and processes, technical information and know-how relating to the business of a Party and the Party’s clients, which is not in the public domain, including without limitation, inventions, designs, programs, techniques, database systems, proprietary coding and software, hosting security details and procedures, formulae and ideas, business contacts, suppliers and details of contracts with them; and any document marked “confidential”.

�15

12.3. The parties agree that the above obligations of confidence shall not apply in circumstances where (a) the information was already lawfully known or became lawfully known to the other party independently of its involvement in this Agreement; (b) the information is or enters the public domain other than due to the wrongful disclosure by the other party; or (c) a party has an obligation to disclose the information to a person or body, including but not limited to regulatory bodies, having a legal right, duty or obligation to have access to the information or be informed of the information (whether or not such person or body has requested the information) and then only in pursuance of such a legal right, duty or obligation.

12.4. Each party (including sub-contractors) shall remain liable under the Data Protection Act (1998) to comply with all of the data protection principles and shall not, by act or omission, put the other party in breach of, or jeopardise any registration under, any such Data Protection Law.

12.5. In the event that the Client provides TVG Media with or makes available to TVG Media Personal Data (as defined in the Act) for the purposes of the Services, the Client shall take all steps necessary to ensure that neither the Client nor TVG Media shall be in breach of its obligations under the Act by performing the Services. The Client accepts full responsibility for such Personal Data and hereby indemnifies TVG Media against all losses, damages, claims, liabilities, costs and expenses (including but not limited to legal costs) arising from TVG Media processing such Personal Data. For the avoidance of doubt, the Client will be the data controller of any Personal Data provided to TVG Media and TVG Media will be the data processor.

13. General

13.1. No waiver by TVG Media of any breach of these Terms and Conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.

13.2. No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude, any other or further exercise of any other right, power or privilege.

13.3. The parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms

�16

and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.

13.4. All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the party giving the notice. Notices shall be deemed to have been duly given:

13.4.1. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

13.4.2. when sent, if transmitted by fax or e-mail; or

13.4.3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

13.4.4. on the tenth business day following mailing, if mailed by airmail, postage prepaid.

13.4.5. in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

13.5. Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.

13.6. Nothing in these Terms and Conditions is intended to, or shall operate to, create a partnership between the parties. From time to time, TVG Media may act as the agent of the Client where the agreed Services include the procuring of advertising or other third party services on behalf of the Client. Other than by TVG Media as part of these duties (which must be exercised in accordance with these Terms and Conditions), neither party may act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.7. From time to time, TVG Media may vary or modify these Terms and Conditions or the Specification by providing written notice of any changes to the Client at least one (1) month before such changes are to take effect. The Client may choose to terminate this contract prior to the changes taking effect by providing written notice to TVG Media, in which case the provisions of clause 7.3 shall apply. For the

�17

avoidance of doubt, any continued conduct by the Client in using or receiving the Services following such notice shall be deemed to constitute acceptance of the changes.

13.8. Nothing in these Terms and Conditions shall give, directly or indirectly, any third party any enforceable benefit or any right of action against TVG Media and such third parties shall not be entitled to enforce any term of these Terms and Conditions against TVG Media.

13.9. These Terms and Conditions and the Specification constitutes the entire agreement between the parties. Other than as expressly stated otherwise in these Terms and Conditions neither party shall be under any liability for any representations made prior to or during the operation of these Terms and Conditions.

13.10.These Terms and Conditions shall be governed by the laws of England. Any dispute between the Parties relating to these Terms and Conditions shall be subject to the exclusive jurisdiction of the courts of England.

�18

Schedule 1: Support & maintenance This Schedule 1 shall apply to any support and maintenance services provided to a Client in addition to TVG Media’s Master Terms & Conditions of Service.

1. DEFINITIONS

1.1. In addition to the defined terms in clause 1.1 of TVG Media’s Terms & Conditions, the following terms will apply:

�19

2. SUPPORT & MAINTENANCE SERVICES

2.1. For the Support Term and during Working Hours, TVG Media shall use its reasonable endeavours to provide the following Support to the Client in accordance with the Specification:

2.1.1. advice regarding the use of the Site by email;

Additional Charges means the additional sums which may be charged under this Schedule 1 in accordance with TVG Media’s current charges for work undertaken on a time and materials basis;

Fault means either (a) failure of the Site to perform in accordance with the Specification; or (b) a cessation, interruption or degradation of the usual functionality of the Site;

Maintenance Tasks means any corrected or updated version of the Site or any software forming part of the Site that may be from time to time issued by TVG Media, including but not limited to Magento version upgrades and patches, performance tuning, bug fixes or minor improvements as required;

Support the support and maintenance services to be provided by TVG Media to the Client in respect of the Site, as set out in clause 2.1 below and more particularly described in any Specification provided by TVG Media. For the avoidance of doubt, Support shall constitute “Services” for the purposes of the Terms and Conditions between the parties;

Support Term means the term for the provision of Support as set out in the Specification or otherwise agreed in writing between the parties, to be renewed in accordance with clause 3.11;

New Release means any improved or modified version of all or part of the Site;

Quota means the set number of hours set out in the Specification to be allocated by TVG Media in any single monthly period to the provision of Support, Maintenance Tasks and New Releases in accordance with this Schedule 1 (as part of the Fees payable for Support);

Site the website(s) to be supported and maintained by TVG Media, as identified in the Specification;

Working Hours means 9:30am to 5:30pm on a Business Day, Monday to Friday.

�20

2.1.2. If specified in the Specification, helpdesk services and advice regarding the use of the Site by telephone;

2.1.3. the identification, diagnosis and rectification of Faults by telephone, email and/or remote access;

2.1.4. the performance of Maintenance Tasks to correct Faults, or as are determined to be necessary by TVG Media in its sole discretion;

2.1.5. monitoring of key components and other third party software platforms relating to the Site as deemed necessary or desirable by TVG Media;

2.1.6. advice in writing or by email regarding any changes to the Site that TVG Media recommends to maximise system efficiency and reduce system failures, and assistance with the co-ordination and management of any changes to the Site.

2.2. TVG Media may also provide certain Support services outside Working Hours if explicitly agreed and set out in the Specification. Such services may be subject to a “per Fault” caps or limit as described in the Specification.

3. FAULT REPORTING AND RESPONSE

3.1. As soon as practicable after Client becomes aware of a Fault, it shall notify TVG Media by reporting the Fault as follows:

During Working Hours: By telephone on 01173 136 010 By sending an email to support@thepixel.com

Out of Working Hours: By sending an email to support@thepixel.com

If included in the Client’s support package, on the emergency contact details provided by TVG Media (for Critical Faults only, and up to the total monthly Quota for such Out of Working Hours Support).

3.2. The Client shall provide sufficient information and material to enable TVG Media to understand the Fault and, if applicable, to duplicate the Fault, including without limitation:

3.2.1. a clear and accurate description of the Fault;

�21

3.2.2. the area of the Site to which the Fault relates;

3.2.3. the function which was being performed when the Fault occurred, if applicable;

3.2.4. the error message or any other messages displayed, if any;

3.2.5. the sequence of events leading up to the occurrence of the Fault; and

3.2.6. any other information and materials relating to the Site or the Fault which TVG Media requires to perform its obligations hereunder

3.3. The objective of Fault resolution is to restore normal operations as quickly as possible with the least possible impact on either the business or the user. Accordingly, TVG Media will use its reasonable endeavours to meet the following target times when managing Faults:

3.4. If TVG Media is unable to diagnose the Fault within the diagnosis target time, the Fault will be referred to a more senior engineer. A work-around may be implemented where appropriate until a permanent solution can be found.

Priority Description Response Time

Problem Diagnosis

System /Feature Operational

Critical The entire Site is “down” and inaccessible, or operation of the Site is severely degraded, or major components of the site are not operational.

2 Hours 4 Hours 6 Hours

Normal Certain non-essential features of the Site are impaired while most major components of the site remain functional.

4 Business Hours

1 Business Day

5 Business Days

Low Faults that are non disabling or cosmetic and clearly have little or no impact on the normal operation of the Site.

1 Business Day

3 Business Days

10 Business Days.

�22

3.5. As part of the Fees, TVG Media will provide the Support, Maintenance Tasks and any New Releases requested by the Client up to the Client’s monthly Quota. For the avoidance of doubt, any unused or un-expended time for the Quota in any month shall expire and shall not roll-over or contribute to the following month’s Quota.

3.6. Any Support, Maintenance Tasks or New Releases that would exceed the Client’s Quota will be subject to Additional Charges in accordance with clause 3.8.

3.7. The Support shall not include the diagnosis and rectification of any Faults resulting from:

3.7.1. the Client’s improper use, operation or neglect of the Site or system upon which it is run;

3.7.2. the repair, adjustment or modification of the Site or its merger (in whole or in part) with any other equipment or software, other than as expressly permitted by TVG Media;

3.7.3. the failure by the Client to implement Maintenance Tasks or recommendations in respect of or solutions to Faults previously advised by TVG Media;

3.7.4. any repair, adjustment, alteration or modification of the Site by any person other than TVG Media without TVG Media’s prior consent;

3.7.5. the use of the Site for a purpose for which it was not designed;

3.7.6. rectification of lost or corrupted data arising for any reason other than TVG Media’s own negligence;

3.7.7. loss or damage caused directly or indirectly by operator error or omission;

3.7.8. a fault in Client or third party software or applications or any upgrade or new release in respect thereof;

3.7.9. a fault in the equipment or in any other software operating in conjunction with or integrating with the Site;

3.7.10. any Fault that cannot be replicated by the Client for the purposes of demonstrating such issues or errors to TVG Media; and

3.7.11. any Fault in respect of any equipment, software or applications which are not specifically set out in the Specification as being part of the Site.

�23

3.8. TVG Media may agree upon receipt of a request by the Client to provide Support notwithstanding that:

3.8.1. the Client’s Quota has been met or exceeded in any given month; or

3.8.2. if the Fault results from any of the circumstances described in clause 3.7 above or

3.8.3. the request is for services not covered by Support;

and unless otherwise agreed between the parties in writing, TVG Media in such circumstances shall be entitled to levy Additional Charges.

3.9. The parties may discuss and agree to create New Releases incorporating any Client suggestions or requests for modifications or improvements to the Site. For New Releases which are to be created as part of the Client’s Quota, TVG Media shall notify the Client of the time required for the creation of said New Release, to be applied to that month’s Quota. Nothing shall oblige TVG Media to create or provide any New Releases to the Client above the Client’s Quota for any given month, and TVG Media shall in such circumstances be entitled to charge the Additional Fees to be agreed between the parties prior to the delivery of such services or the relevant New Release.

3.10. TVG Media can provide tailored training days and bespoke documentation to support the Client’s staff when administering the Site, subject to Additional Charges to be agreed between the parties.

3.11. The Support Term shall automatically renew for additional Support Terms of equal duration, unless otherwise terminated by either party by thirty (30) days prior written notice to the other party or otherwise in accordance with the Terms and Conditions. TVG Media reserves the right to notify the Client prior to the expiry of any Support Term of a change to the Fees applicable to Support or the parameters of the Client’s chosen Support package (as set out in the Specification). Such changes will only take effect on or after the commencement of the new Support Term.

�24

Schedule2: Hosting Services

The terms of this Schedule 2 shall apply to any hosting services provided to the Client, in addition to TVG Media’s Master Terms & Conditions of Service.

1. Definitions

1.1 In addition to the defined terms in clause 1.1 of TVG Media’s Services Agreement, the following terms will apply:

1.2 TVG Media reserves the right to modify the terms of this Hosting Services Schedule 2 and will provide the Client with thirty (30) days notice prior to any changes.

2. Use of Services

2.1 In consideration of payment by the Client of the applicable Fees, TVG Media shall provide the Hosting Services in accordance with this Schedule 2 and the details set out in the Hosting Services Specification.

2.2 In order to access the Hosting Services, the Client may be required to provide current and factual identification, contact, and other information as part of the registration process.

“Acceptable Use Policies” means any and all acceptable use policies provided to the Client by TVG Media or any third party supplier, as may be modified from time to time by TVG Media or the third party supplier.

“Account” means any service, server, user account or software the Client has been given access to as part of TVG Media’s Hosting Services.

“Hosting Services” means the hosting of the Site, as is further described in any Specification provided to the Client by TVG Media;

“Site” means the website that is to be hosted by TVG Media, as identified in the Specification.

�25

3. Acceptable Conduct

3.1 The Client is responsible for the actions of all users of the Client’s account and any data that is created, stored, displayed by, or transmitted by the Client’s account while using the Hosting Services. The Client will not engage in any activity that interferes with or disrupts TVG Media's services or networks connected to TVG Media.

4. Prohibited Usage

4.1 The Client agrees that any of the activities listed in Clause 4.1 below are considered prohibited usage of the Hosting Services and will result in immediate account suspension or cancellation without a refund and the possibility that TVG Media will impose fees; and/or pursue civil remedies without notice to the Client:

4.1.1 Misuse of System Resources: Intentional misuse of system resources, including but not limited to employing programs that consume excessive network capacity, CPU cycles, or disk IO.

4.1.2 Spam and Unsolicited Bulk Email (UBE): TVG Media has a zero tolerance policy on spam, junk E-mail or UBE. Spam, junk-mail and UBE are defined as: the sending of the same, or substantially similar, unsolicited electronic mail messages, whether commercial or not, to more than one recipient. A message is considered unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not consented to receive marketing materials from the Client. UBE also includes e-mail with forged headers, compromised mail server relays, and false contact information. This prohibition extends to the sending of unsolicited mass mailings from another service, which in any way implicates the use of TVG Media whether or not the message actually originated from TVG Media’s network.

4.1.3 Mailing Lists: TVG Medias mass mailing rules also apply to mailing lists, list servers, or mailing services the Client may contract with. The policy is stated as follows: An acceptable mailing list will be focused at a targeted audience that has voluntarily signed up for the Client’s e-mail information or that has made their e-mail address available for distribution of information from the Client. The list must also allow for automatic removal of recipients with non-distribution in the future.

4.1.4 Access to other computers or networks without authorisation: attempting unauthorised and/or illegal access of computers, networks and/or accounts not belonging to the party seeking access. Any act which interferes with the services of another user or network. Any act relating to the circumvention of security measures.

�26

4.1.5 The services provided may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United Kingdom regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights. TVG Media's services may not be used to facilitate infringement of these laws in any way.

4.1.6 Other Activities viewed as illegal or harmful: Engaging in illegal activities or engaging in activities harmful to the operations of TVG Media or TVG Media's customers.

4.1.7 Providing false data on any contract or application: including fraudulent use of credit card numbers.

4.1.8 Any usage that prompts the receipt of abuse complaints pertaining to violation of United Kingdom and/or international copyright law must be promptly discontinued to avoid service cancellation for violation of these terms.

4.1.9 Misuse or improper storage of personal details or information that is covered under the UK Data Protection Act 1998.

4.2 The Client shall comply with the Acceptable Use Policies.

5. Changes to Hosting Services Fees

5.1 TVG Media reserves the right to change the Hosting Services Fees on the basis of at least two months notice to the Client, to take effect for all payments made on or after the date specified in the notice. Any price increase will not exceed in percentage terms any increase in the published retail price index within a 12 month period.

6. Uptime Guarantee / Service Level Agreement (SLA)

6.1 TVG Media provides a 99.5% uptime guarantee on the Client's Hosting Services in accordance with this clause 6.

6.2 In any given calendar month, if the Hosting Services are unavailable for more than 0.5%, the Client may request a pro-rata credit for the down-time, provided that the maximum credit may not exceed five per cent (5%) of the total charged to the Client over the affected period.

�27

6.3 If the Client is entitled to any credits pursuant to clause 6.2, the Client must write to TVG Media within seven (7) days after the end of the calendar month that the period of unavailability took place.

6.4 The Client shall not be entitled to any credits where the Client is in arrears of payment of any Fees due to TVG Media.

6.5 For the avoidance of doubt, the Client’s Hosting Services are considered unavailable from the time the Client reports to TVG Media that connectivity is below the uptime guarantee or from the time that TVG Media discover that connectivity is below the uptime guarantee.

6.6 The parties agree that TVG Media shall not be liable for any failure to provide the Hosting Services to the extent the failure is caused by:

6.6.1 any scheduled downtime, which TVG Media will use all reasonable endeavours to give adequate advanced notice of either by website scheduled maintenance page, email or by telephone;

6.6.2 the Client, either directly or indirectly;

6.6.3 equipment, connectivity, interruption or power supplies or other utility of service and environmental conditions on the Client’s site;

6.6.4 unauthorised changes by the Client;

6.6.5 force majeure events, as detailed in clause 11 of the master terms and conditions of service attached hereto;

6.6.6 government or regulatory restrictions, exchange rulings, court or tribunal orders; or

6.6.7 any failure by the Client to comply with any of its duties or obligations set out in this Agreement.

6.7 The Client’s Hosting Services shall not be considered unavailable for the purpose of calculating the uptime guarantee at clause 6.1 during any outages, disruptions or other availability issues, caused by any of the events in clause 6.6.

6.8 The Parties agree the terms of this clause 6 relating to pro-rated credits do not operate by way of penalty and constitute a genuine attempt to pre-estimate loss to the Client.

�28

6.9 The provisions of this clause 6 state the Client’s full and exclusive right and remedy, and TVG Media’s (including its licensors, agents and subcontractors, if any) only obligation and liability, in respect of any failure to achieve the above service uptime guarantee.

7. Responsibilities

7.1 Root and administrative access: the Client agrees that if given “root” or other administrative access to a server that the Client is responsible for any changes made, including responsibility for security for any changes or additional software added to the server, including any damages and costs incurred that may result from security breaches.

7.2 Account Cancellation or Suspension

7.3 TVG Media reserves the right to suspend network access to the Client if, in the judgment of the TVG Media network administrators, the Client's server is the source or target of a violation of any of this Schedule 2. TVG Media will use reasonable care in notifying the Client and in resolving the problem in a method resulting in the least amount of service interference. TVG Media reserves the right to terminate service without notice for continued and repeated violations of these Terms and Conditions. If inappropriate activity is detected, all accounts of the Client in question will be deactivated until an investigation is complete. Prior notification to the Client is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The Client will not be credited for the time the Client's machines were suspended.

7.4 If at any time it becomes necessary for TVG Media to cancel the Hosting Services without cause, TVG Media will provide sixty (60) days advance notice of such termination.

7.5 Clients to whom the Hosting Services are provided on a monthly basis must give TVG Media thirty (30) days notice before the end of the billing month to cancel.

7.6 Clients to whom the Hosting Services are provided on an annual basis must provide TVG Media 30 days notice before the end of the billing year to cancel the Hosting Services, otherwise the contract will revert to an automatic monthly rolling contract which will renew until the Client provides such thirty (30) days notice of termination to TVG Media.

8. Limitation of Liability

8.1 The Client acknowledges that the Hosting Service provided is of such a nature that service can be interrupted for many reasons other than the negligence of TVG Media and

�29

that damages resulting from any interruption of service are difficult to ascertain. Therefore, The Client agrees that TVG Media shall not be liable for any damages arising from such causes beyond the direct and exclusive control of TVG Media.

9. Disclosure to Law Enforcement

9.1 These Terms and Conditions specifically prohibit the use of TVG Media’s service for illegal activities. Therefore, the Client agrees that TVG Media may disclose any and all Client information including assigned IP numbers, account history, account use, etc. to any court who sends TVG Media a valid Court Order, without further consent or notification to the Client. In addition, in such circumstances, TVG Media shall have the right, acting reasonably, to terminate all Hosting Services.

10. Hosting Services Indemnity

10.1 The Client agrees to indemnify TVG Media for any violation of these Terms and Conditions that results in loss to TVG Media, should a claim against TVG Media be brought by any third-party as a result of such violation. This means that if action through the courts is taken against TVG Media because of activity on the Client's account which was within the control of the Client, the Client will indemnify and hold TVG Media harmless from any damages awarded against TVG Media, plus all costs and reasonable fees.

11. Transition

11.1 In the unlikely event that TVG Media was no longer able to provide the Hosting Services, TVG Media has arrangements with the Datacentre (hosting TVG Media's servers) and will use its reasonable endeavours to facilitate the Client, at its own cost and expense, to either continue hosting or to arrange to have its website and data transferred to alternate hosting arrangements.

�30

Schedule 3: Online marketing services The terms of this Schedule 3 shall apply to any online marketing services provided to the Client, in addition to TVG Media’s Master Terms & Conditions of Service.

1. BACKGROUND

1.1. TVG Media may provide certain online marketing services to the Client from time to time, which may include:

1.1.1. Search engine optimisation;

1.1.2. Blogging;

1.1.3. Creation of website content (writing new content and optimising existing content);

1.1.4. Social media management;

1.1.5. Adwords/PPC; and

1.1.6. monitoring and reporting on all of the above;

collectively being “Marketing Services” for the purposes of this Schedule 3. For the avoidance of doubt, Marketing Services shall constitute Services under TVG Media’s Master Terms & Conditions of Service.

1.2. The parties agree the specific details of any Marketing Services shall be as set out in the Specification provided to the Client by TVG Media.

1.3. TVG Media may from time to time use various third party organisations to deliver the Marketing Services. The Client acknowledges and agrees that TVG Media may subcontract or outsource some or all of the Marketing Services to such third party partners without notice to or approval of the Client.

2. CLIENT OBLIGATIONS FOR MARKETING SERVICES

2.1. In addition to its obligations set out in the Master Terms & Conditions of Service, the Client shall provide all reasonable assistance and co-operation necessary for performance of the Marketing Services, including but not limited to:

�31

2.1.1. provision of Client Materials to TVG Media for use in marketing and advertising;

2.1.2. timely approval of advertising copy, designs, content and media releases (for best outcomes, to be provided within no more than seven (7) working days);

2.1.3. access to the Client's web analytics systems and other relevant tools as notified by TVG Media;

2.1.4. where requested by TVG Media, payment of any third party advertising fees or disbursements or other expenses in advance; and

2.1.5. where Services include search engine optimisation or conversion rate optimisation services, obtaining TVG Media’s approval prior to making any changes to any relevant Client websites (as such changes may result in a drop in performance). TVG Media may charge additional Fees for such review and approval.

2.2. If TVG Media’s performance of the Marketing Services is prevented, delayed or otherwise affected by any act or omission of the Client, TVG Media shall not be liable for any costs, charges or losses sustained or incurred by the Client, or any adverse impact on the results of the Marketing Services, that arises directly or indirectly from such acts, omissions or delay.

3. CLIENT MATERIALS

3.1. The Client hereby warrants, undertakes and represents that any Client Materials provided to TVG Media or approved by the Client for use by TVG Media in the provision of the Marketing Services:

3.1.1. comply with all applicable laws, regulations, regulatory policies, guidelines or codes including all such guidelines and codes issued by statutory, regulatory and industry bodies;

3.1.2. do not infringe the intellectual property rights or proprietary rights of any third party; and

3.1.3. are not defamatory, libellous, obscene or otherwise offensive.

�32

4. ACKNOWLEDGEMENT

4.1. TVG Media will carry out the Marketing Services with due care, skill and diligence. However, the Client acknowledges and agrees that TVG Media does not guarantee any specific results, benefits or outcomes as a result of the Marketing Services or the Client's implementation of recommendations made by TVG Media in the course of providing the Marketing Services. The Client further acknowledges and accepts that the Marketing Services may be affected by external factors such as changes in third party websites, search engines and systems. Such factors are beyond the control of TVG Media and the Client acknowledges and agrees that TVG Media cannot be held responsible or liable for any detrimental or negative impact of any alteration, modification or change to such external factors on the Marketing Services.

4.2. In no event shall TVG Media (including its respective agents and sub-contractors) be liable for:

4.2.1. any defect or failure of the Marketing Services which results from any external factors such as changes in third party websites, search engines and systems, or any delay by a third party which is beyond the reasonable control of TVG Media;

4.2.2. any liability resulting from compliance by TVG Media with Client instructions or directions (including but not limited to bidding on competitor keywords or other conducting other activities that may result in breaches of third party terms and conditions or guidelines, or regulatory issues); or

4.2.3. any liability arising from a failure of the Client to comply with its obligations set out in this Schedule 3.

�33