Pixate Terms of Service
Published August 12, 2014
BY USING THE SERVICES (AS DEFINED BELOW) YOU AGREE TO THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE AS AN INDIVIDUAL, THE TERM "CUSTOMER" REFERS TO YOU. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Customer and Pixate, Inc. ("Pixate") hereby agree as follows:
These Terms of Service shall apply to Customer's use of Pixate's SaaS-based subscription services and related content and software (collectively, "Services"). These Terms of Service and all ordering documents (including any online form) to which you may agree related to the Services ("Order", and together with these Terms of Service, collectively, this "Agreement") represent the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Pixate ordering document, and no terms included in any such purchase order or other non-Pixate ordering document shall apply to the Services. In the event of a conflict between these Terms of Service and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.
Right to Use the Services
Subject to this Agreement, Pixate grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services. An Order may define specific usage rights, including the number of Users permitted to use the Services ("Usage Rights"), and Customer shall at all times ensure that its use does not exceed its Usage Rights, if applicable.
As between Pixate and Customer, Customer will be solely responsible for the Customer Apps, and all related content created or used in connection with the Services.
Usage Restrictions and Representations
Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software (including Redistributables), documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Pixate; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service.
Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Pixate's provision of the Services. Customer shall be responsible for maintaining the security of its equipment and account access passwords. Customer represents and warrants that Customer will use the Services only in compliance applicable laws and regulations. Customer shall be liable for all acts and omissions of its Users.
Pixate may immediately suspend Customer's password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Pixate has provided Customer with notice of such failure; or (ii) Customer violates these Terms of Service. Any suspension by Pixate of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
Pixate owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Pixate, and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Pixate.
Customer owns any data, software, content, information or material originated by Customer that Customer submits or provides in the course of using the Services ("Customer Data"). Pixate has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Pixate Services. Customer represents and warrants that it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used by Pixate as part of the Services.
Billing and Payment
Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified herein. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Pixate's income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection.
If at any time Pixate determines that Customer is exceeding the Usage Rights, Pixate shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Pixate's notice, Pixate reserves the right to charge and Customer agrees to pay Pixate's then-current usage fees for such overage.
Term and Termination
The Agreement shall commence as of the date set forth in the first Order or the creation of an account, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the termination of an account if no purchased subscription is ordered). All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If Pixate terminates an Order for Customer's material breach, all fees set forth on such Order are immediately due and payable.
Upon any termination or expiration of an Order, Customer's right to access and use the Services covered by that Order shall terminate.
Disclaimer of Warranties
Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pixate or by third-party providers, or because of other causes beyond our reasonable control. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PIXATE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PIXATE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL PIXATE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, PIXATE'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Customer will defend, indemnify, and hold harmless Pixate from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service, your Customer Data or your use or misuse of the Services. Pixate shall provide notice to you of any such claim, suit or demand. Pixate reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, Customer agrees to cooperate with any reasonable requests assisting Pixate's defense of such matter.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Further, Pixate acknowledges that, subject to the immediately preceding sentence, the Customer Data is the Confidential Information of Customer, and Pixate will not access the Customer Data other than to provide the Services to Customer and support Customer's use of the Services.
Notwithstanding anything else in the Agreement or otherwise, Pixate may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. Pixate retains all intellectual property rights in such information.
Pixate may give notice applicable to Pixate's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in Pixate's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in Pixate's account information. If Customer has a dispute with Pixate, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send an email to firstname.lastname@example.org.
Any action, Claim, or dispute related to the Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
This Agreement and all Order(s), represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. Customer acknowledges that this Agreement is a contract between Customer and Pixate, even though it may be electronic and not physically signed by Customer and Pixate, and it governs Customer's use of the Service and takes the place of any prior agreements between Customer and Pixate. The Agreement may be amended only by written agreement signed by the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between Pixate and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.
Pixate reserves the right to use Customer's company name as a reference for marketing or promotional purposes on Pixate's website and in other communication with existing or potential
Pixate customers. Customer may send an email to email@example.com stating that it does not wish to be used as a reference, and Pixate will promptly discontinue such use, provided that Pixate may continue to confidentially disclose that Customer is a customer to Pixate's actual or potential financing sources or acquirers.