This Terms of Service (“TOS”) governs your access to and use of the Pixlee image management platform (the “Service”). When you execute an order form for the Service (“Order Form”) referencing this MSA, the Order Form and this MSA together form an agreement (the “Agreement”) between the person or entity executing the Order Form (“You” or “Customer” or “Your”) and Pixlee, Inc. (“We” or “Our” or “Us”).
1.1 Provision of Service We shall make the Service available to You pursuant to this Agreement and the relevant Order Form during the subscription term indicated on the Order Form (the “Term”). You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
1.2 Upgrades Any upgrades to the specific version of the Service for which You have purchased a subscription that We generally make available to all subscribers will be added without additional charge. These upgrades do not include new features offered on other versions of the Service; for example, if you have purchased a subscription for the Pro version, you will not receive upgrades released only for the Enterprise version. In some scenarios, Pixlee may offer advanced features to its customers to test its products.
1.3 Setup Pixlee will provide only those setup services indicated on the Order Form, subject to timely payment of the setup fee (if any) and Your provision of all reasonable cooperation, information and materials, including provision of any logos or branding assets needed for any template design.
2.2 General Restrictions and Limitations Section 2.1 sets forth the entirety of Customer’s right to access and use the Service. Customer has no right to (a) enable any third party to access and use the Service; (b) modify or create any derivative work based upon the Service or Pixlee Technology (as defined below); (c) engage in, permit or suffer to continue any unauthorized copying, reselling or distribution of the Service or Pixlee Technology; (d) grant any sublicense or other rights to the Service or Pixlee Technology; (e) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any Pixlee Technology; or (f) remove, obscure or alter any intellectual property rights notice related to the Pixlee Technology. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage Customer’s Service account, other than any such means which are intentionally made available by Pixlee. Customer will ensure that all access to and use of the Service by Customer, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law, rule or regulation, or the rights of any third party.
You may not access or use the Service if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
If the Order Form specifies that Customer is receiving a free trial of the Service, then notwithstanding anything else to the contrary, Customer’s right to access and use the Platform is limited to Customer’s internal evaluation of the features and functionality of the Service. Without limiting the foregoing, the following uses of the Service are not authorized during a free trial: publishing Widgets to websites, Facebook tabs, or live event displays.
2.4 End User Images Customer acknowledges and agrees that Pixlee may remove, or may request Customer to remove, any end user images and videos from the Service: (i) in connection with a request made by a purported copyright holder, including a request made pursuant to the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”), can be made at Pixlee’s DMCA Policy (http://www.pixlee.com/dmca); (ii) that Pixlee reasonably believes to violate any third party intellectual property right, right of privacy or publicity, other third party right or any law, rule or regulation; or (iii) that Pixlee reasonably believes may expose Pixlee to any civil or criminal liability. Customer shall promptly comply with any such request by Pixlee. Customer acknowledges and agrees that Pixlee has no obligation to monitor the images and videos provided by Site end users or stored within the Service by Customer, and shall have no responsibility or liability with respect thereto. PIXLEE IS A THIRD-PARTY INTERMEDIARY WHO SOLELY TRANSFERS IMAGES AND VIDEOS FROM THE END USER TO THE CUSTOMER. PIXLEE IS NOT RESPONSIBLE FOR ANY COPYRIGHT INFRINGEMENT, PRIVACY OR MISAPPROPRIATION CLAIMS, OR ANY OTHER CIVIL LIABILITY RESULTING FROM THE CUSTOMERS USE OF THE IMAGES AND VIDEOS.
2.5 Suspension Pixlee may suspend or terminate the Service (in whole or in part) at any time if Pixlee reasonably determines that such action is warranted to: (i) prevent errors or any other harm with respect to the Service; the Sites or other websites or online services; (ii) respond to Publisher’s breach of this Agreement, or (iii) limit Pixlee’s liability.
2.6 License to Pixlee Customer hereby grants Pixlee a worldwide, non-exclusive, royalty-free license: (i) during the Term to use, reproduce, distribute, transmit, have transmitted, perform, display, store, archive, and index images and videos uploaded by Customer to the Service ; (ii) to collect, use and disclose data relating to Customer’s usage of the Service (“Usage Data”) in order to provide the Service; (iii) use Usage Data for Pixlee’s internal business purposes; and (iv) disclose Usage Data generally where it is aggregated with similar data relating to other Pixlee customers or partners and is not identified as relating to Customer.
2.7 Reservation of Rights Subject to the limited rights expressly granted hereunder, as between the parties Pixlee reserves all right, title and interest in and to the Service, all software used by Pixlee to make the Service available and any and all software, technology or materials created, developed, conceived, reduced to practice or provided by Pixlee (all of the foregoing, “Pixlee Technology”), including without limitation all intellectual property rights related to any of the foregoing. No rights are granted to Customer hereunder other than as expressly set forth herein.
2.8 Intellectual Property You represent that you own or otherwise have all necessary rights, licenses and consents with respect to all images and videos that are received, posted, transmitted or stored by You or on your behalf in connection with the Service. You shall not upload, post or make available in connection with the Service any copyrighted, trademarked or other proprietary material without the express written permission of the owner of the copyright, trademark or other proprietary right. Additionally, in the event there is a dispute about copyright or proprietary right, the burden of determining that the material is not protected by copyright or other proprietary right rests with you. In the event damages result from an infringement of copyrights, proprietary rights, or any other harm resulting from your submission, you shall be solely liable for any damage resulting from such infringement.
2.9 Trademarks The Pixlee name and other Pixlee graphics, logos, and service names, such as PhotoRank™, are trademarks of Pixlee, Inc. Pixlee’s trademarks may not be used in connection with any product or service that is not Pixlee’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Pixlee. There may be other trademarks, service marks, graphics and logos used in connection with Our Service and Website and these may be the trademarks of other third parties. Your use of Our Service or Website does not grant you a right or license to reproduce or otherwise use any Pixlee or third party trademarks. Except as set out in these Terms, reproduction and storing of any third party content or User Content from Our Service or Website is prohibited without written permission from the copyright holder of the content.
2.10 Advertisements Pixlee reserves the right to display our “Powered By Pixlee” logo, or attribution, in your Widget display unless you have purchased our ad-free Enterprise Services.
3.1 Resources Subject to the terms and conditions of this Agreement, Pixlee shall provide commercially reasonable technical support to Customer regarding use of the Service and any errors within the Service during Pixlee’s normal business hours at no additional charge.
3.2 Support Procedures Customer’s support contacts may submit requests for technical support through e-mail or by phone. Customer’s contacts will be asked to provide their company name and contact information. Pixlee will use commercially reasonable efforts to respond to each case within forty eight (48) hours and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Pixlee’s reasonable determination.
4.1 Fees Customer shall pay Pixlee the fees set forth on the Order Form. Except as otherwise specified herein or in an Order Form (i) fees are based on services purchased and payable in advance, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Invoicing and Payment Terms The Order Form sets forth whether Customer is paying via check or by credit card. If Customer is paying by credit card, Pixlee will charge the credit card number provided by Customer for each fee specified on the Order Form as it becomes due and payable. If Customer is paying by check, Pixlee will issue Customer invoices for each fee on the Order Form as it becomes due and payable. All such invoices are payable immediately upon receipt of the invoice. If customer payment is delayed, Pixlee has the right to suspend or terminate the Service.
Customer may elect to provide a purchase order or similar document to Pixlee in connection with payments due hereunder. While Customer may use pre-printed purchase orders for the sake of convenience, no terms or conditions set forth on any purchase order or other document provided by Customer in connection with payments hereunder shall be of any force or effect.
4.3 Overdue Charges If any charges are not received from Customer by the due date, then at Pixlee’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the day such payment was due until the date paid, and/or (b) Pixlee may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2.
4.4 Taxes All fees are net of taxes. Customer will pay or reimburse all taxes, duties and assessments, if any due, based on or measured by amounts payable to Pixlee in any transaction between Customer and Pixlee under the Agreement (excluding taxes based on Pixlee’s income) together with any interest or penalties assessed thereon, or furnish Pixlee with evidence acceptable to the taxing authority to sustain an exemption therefrom
5.1 Term This Agreement shall continue until the end of the Term unless earlier terminated as set forth herein, thereafter, unless otherwise specified in the Service Order Form, this Agreement shall automatically renew for successive periods of one year each unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the renewal date. The Fees may automatically adjust for each renewal period in accordance with Company’s then-standard pricing.
5.2 Termination by Customer The Agreement may be terminated by Customer upon Pixlee’s bankruptcy, reorganization or assignment for the benefit of creditors.
5.3 Termination by Pixlee Pixlee may terminate this agreement (i) if Customer defaults in the timely payment of any amounts due Pixlee and fails to cure within ten (10) days of receipt of written notice; (ii) immediately if Customer fail upon written notice to remove any images and videos pursuant to Section 2.4; (iii) in the event of a material breach by Customer of any other provision of the Agreement and Customer fails to cure such breach within thirty (30) days of written notice; or (iv) upon Customer’s bankruptcy, reorganization or assignment for the benefit of creditors.
5.4 Effect of Termination Unless otherwise agreed upon by the parties, Pixlee will have no obligation to provide the Service to Customer after the effective date of the termination; Customer will pay Pixlee any amounts payable for Customer’s use of the Service through the effective date of the termination. No refunds of prepaid fees shall be made to Customer in connection with any termination, except that if Customer terminates this Agreement under Section 5.1, Pixlee will refund any pre-paid fees by Customer on a pro-rated basis based on the services provided as of the date of termination. Sections 2.2, 2.6, 2.7, 2.8, 2.9, 4 (with respect to accrued payment obligations), 5.4, 6.2, 9, 10 and 11 shall survive any expiration or termination of this Agreement.
6.1 Our Warranties We represent and warrant that: (i) We have validly entered into this Agreement and have the legal power to do so; and (ii) to the best of Our knowledge, the software We use that underlies the Service does not infringe on any intellectual property rights of any third party.
6.2 Disclaimer EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PIXLEE DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. PIXLEE MAKES NO WARRANTY REGARDING THE RESULTS OF USE OF THE SERVICE.
Each Party shall be allowed to refer to the other as a customer of or service provider to (as the case may be) on its website and in marketing materials, including but not limited to case studies, blog posts and webinars, provided that such reference shall not imply an affiliation, sponsorship, or endorsement of the other. Other than as provided in the foregoing sentence, neither Party shall issue any public announcement regarding the subject matter herein without the prior written approval of the other.
8.1 Indemnity by Pixlee Pixlee shall at its option, defend and/or settle any claim made by a third party against Customer or any of its directors, officers, employees or contractors alleging that the Service, as provided by Pixlee, infringes a copyright or misappropriates a trade secret of a third party (a “Claim”); provided that Customer (a) promptly gives Pixlee written notice of the Claim; (b) gives Pixlee sole control of the defense and settlement of the Claim (provided that Pixlee may not settle any Claim without Customer’s prior written consent that would impose any restrictions on Customer’s business activities, such consent not to be unreasonably withheld, delayed or conditioned); and (c) provides to Pixlee all reasonable assistance, at Pixlee’s expense. If a Claim is sustained in a final judgment from which no further appeal is taken or possible, then Pixlee will pay or otherwise satisfy any monetary award entered against Customer as part of such final judgment to the extent that such award is adjudged in such final judgment to arise from such infringement. If Pixlee, in its sole discretion, believes a Claim or an adverse judgment in connection with a Claim is likely, then Pixlee may, at its option, (x) obtain a license from the applicable third party claimant that allows Customer to continue the use of the Service, (y) modify the Service to be non-infringing, or (z) if neither (x) nor (y) is available to Pixlee at a commercially reasonable terms, terminate this Agreement upon written notice to Customer.
THE FOREGOING STATES PIXLEE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
Pixlee will have no liability for any infringement claim that (i) is based on modification of the Service by or at the direction of Customer; (ii) results from Customer’s failure to use an updated version of the Service made available to Customer; (iii) is based on the combination or use of the Service with any third party software, program, device or materials; or (iv) results from Customer’s use of the Service in a manner that is inconsistent with its intended use or is in breach of this Agreement.
8.2 Indemnity by Customer Customer shall defend, indemnify and hold Pixlee and its directors, officers, employees and contractors harmless from and against any and all claims, actions, demands, suits, damages, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s use of and access to the Service, including any images and videos or other data transmitted or received by Customer; (ii) Customer’s violation of any term of the Agreement; (iii) Customer’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s violation of any applicable law, rule or regulation; and (v) the receipt, posting, transmission or storage of any images and videos by or on behalf of Customer; provided, that Pixlee: (a) promptly gives Customer written notice of the claim; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any claim without Pixlee’s prior written consent that would impose any restrictions Pixlee’s business activities, such consent not to be unreasonably withheld, delayed or conditioned); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
9.1 “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within fifteen (15) days of the disclosure. In the case of Pixlee, Confidential Information includes the features and functionality of the Service, whether current or planned, as well as all Pixlee’s plans for future products and services. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
9.2 Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under this Agreement. Each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, subcontractors, and advisers that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIXLEE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF THE SERVICE, INCLUDING ANY USE BY END USERS OF THE WIDGET; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF, ANY MATERIALS POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF YOUR DATA, OR (IV) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY END USER OR THIRD PARTY. IN NO EVENT SHALL PIXLEE, ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR LICENSORS BE LIABLE TO CUSTOMER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE AMOUNT PAID OR PAYABLE TO PIXLEE HEREUNDER DURING THE 12 MONTHS PRECEDING THE CLAIM.
THIS LIMITATIONS OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO ANY BREACH OF SECTIONS 8 OR 9.
11.1 Relationship of the Parties The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship.
11.2 Assignment Customer may not assign its rights or delegate its obligations under this Agreement, whether by operation of law, merger or otherwise, without the prior written consent of Pixlee, which such consent shall not be unreasonably withheld. Pixlee may assign this Agreement in connection with any merger or acquisition of all or substantially all of Pixlee’s capital stock or assets.
11.3 Waiver The failure or delay of either party to insist in any one or more instances upon performance of any of the terms, covenants or conditions of this Agreement or to exercise any right, power or privilege under this Agreement, shall not operate or be construed as a relinquishing of future performance under this Agreement or as a waiver of any of the same or similar rights, powers or privileges in the future, and the obligation of the other party with respect to such future rights or performance shall continue in full force and effect as if such failure or delay never occurred.
11.4 Notices All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, express courier, or certified mail, return receipt requested, to the addresses first set forth in the Order Form sent to the attention of “Legal Department”, or at such different address as may be designated by such party by written notice to the other party from time to time. All notices shall be deemed received and effective upon receipt if delivered personally or sent by express courier, and seven (7) days after mailing if sent by certified mail.
11.5 Severability If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the manifest intent of the parties on the date hereof, or (b) deemed eliminated where such modification is not practicable; and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion.
11.6 Construction Paragraph headings used in this Agreement are for reference purposes only and shall not be interpreted to limit or affect in any way the meaning of the language contained in such paragraphs. No provision of this Agreement will be construed against either party as the drafter thereof. In the event of any conflict between any provision of this MSA and any provision of the Order Form, this MSA shall control except to the extent that such conflicting provision specifically references the section or subsection of this MSA that is being superseded.
11.7 Venue, Governing Law This Agreement is and all transactions hereunder shall be governed by and construed in accordance with the substantive law, (but not the conflict of laws rules) of the State of California. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, over any action, suit or proceeding arising hereunder.
11.8 Force Majeure Neither party will be responsible for any failure or delay in its performance under this Agreement (other than performance of payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.9 Entire Agreement This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous oral and written proposals, negotiations, representations, commitments and other communications between the parties. This Agreement may not be released, discharged, changed or modified except by a written instrument that is signed by duly authorized representatives of each party. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
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