Terms of Service
Last Updated: October 21, 2019
Please carefully read these Terms of Service (this " Agreement"). This Agreement has been prepared as a legally binding agreement between you and Pixlee, Inc. ("Pixlee", "us", "our", or "we").
By accessing and using the SERVICE, you agree to be bound by this Agreement. DO NOT ACCESS OR USE THE SERVICE IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT.
We may revise and update this Agreement from time to time, and will post the updated Agreement to the Service. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. Your continued use of the Service will constitute your agreement to any new provisions of the revised Agreement.
1. ACCESS; RESTRICTIONS ON USE
1.1 Access Subject to the restrictions and limitations set forth in this Agreement, Pixlee hereby grants you a nonexclusive, nontransferable, limited right to access and use the Service through a compatible web browser. You must provide the equipment and Internet connections necessary to access the Service at your own expense. We do not guarantee that the Service will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or used with your computer.
1.2 General Restrictions and Limitations Section 1.1 sets forth the entirety of your right to access and use the Service. You have no right to (a) enable any third party to access and use the Service, except for an agent engaged by you to use the Service solely for your benefit and on your behalf; (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. You may not use any automated means, including agents, robots, scripts, or spiders, to access the Service, other than any such means which are intentionally made available by Pixlee. You will ensure that all access to and use of the Service by you or your agents, or otherwise through your facilities, equipment, identifiers or passwords, will be in accordance with the terms of this Agreement, 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.
Additionally, you may not access or use the Service to: (1) impersonate someone else on the Service or to false, misleading, or defamatory content about a third party; (2) promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities, or promote physical harm or injury; (3) introduce into the Service any virus, rogue program, time bomb, drop dead device, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Service, or to otherwise harm the Service, other users or any third parties; (4) spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including but not limited to: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin or any other form deemed contrary to fundamental human rights and freedoms; or (5) involve any illegal activities or activities that are contrary to morality or public order.
1.3 Suspension Pixlee provides the Service to you free of charge. Pixlee may suspend or terminate the Service (in whole or in part) or your access to the Service at any time in Pixlee’s sole discretion.
1.5 Use of Contact Information You acknowledge that the one of the fundamental objectives of the Service is to enable Pixlee’s customers to contact you via the personal information you provide to the Service. Therefore, you agree to hold Pixlee, Pixlee’s customers, and their respective directors, officers, employees and contractors harmless for any and all claims, actions, demands, suits, damages, losses, liabilities, costs, and expenses (including but not limited to attorney’s fees) arising from or relating to any communication you receive from Pixlee or Pixlee’s customers.
1.6 Your Data You represent and warrant that all profile information you submit to or authorize us to collect via the Service is accurate. If any profile information published on the Service changes, you agree to promptly update it. You represent that you own or otherwise have all necessary rights, licenses, and consents with respect to all data, 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.
1.7 Pixlee Intellectual Property The Service, all software used by Pixlee to make the Service available, any and all software, technology or materials created, developed, conceived, reduced to practice or provided by Pixlee, all written content prepared and posted by Pixlee, and the Service design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Service (collectively, the "Pixlee Technology") are owned by or licensed to Pixlee and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. 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 these may be the trademarks of other third parties. Your use of our Service does not grant you a right or license to reproduce or otherwise use any Pixlee or third party trademarks. Except as set out in this Agreement, reproduction and storing of any third party content from our Service is prohibited without written permission from the copyright holder of the content.
1.8 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 Pixlee Technology, including without limitation all intellectual property rights related to any of the foregoing. No rights are granted to you hereunder other than as expressly set forth herein.
2. DISCLAIMER OF WARRANTIES
THE SERVICE IS PROVIDED "AS IS" AND PIXLEE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PIXLEE 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.
You 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) your use of and access to the Service; (ii) your violation of any term of the Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; and (iv) your violation of any applicable law, rule or regulation.
4. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PIXLEE OR ITS 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 PIXLEE 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; (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 YOU OR A THIRD PARTY. IN NO EVENT SHALL PIXLEE, ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $500.
THIS LIMITATIONS OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS.
5.1 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.
5.2 Assignment You may not assign your rights or delegate your obligations under this Agreement, whether by operation of law, merger or otherwise, without the prior written consent of Pixlee. Pixlee may freely assign this Agreement, including without limitation in connection with any merger or acquisition of all or substantially all of Pixlee’s capital stock or assets.
5.3 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.
5.4 Notices All notices and correspondence to Pixlee under this Agreement shall be in writing and shall be delivered by personal service, express courier, or certified mail, return receipt requested, to 625 Market Street, 9th Floor, San Francisco, CA 94105 or another address as may be designated by Pixlee 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. Pixlee may provide notice to you through the email address you provide to the Service. You are responsible for keeping your email address up-to-date on the Service.
5.5 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.
5.6 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.
5.7 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.
5.8 Force Majeure Pixlee will not be responsible for any failure or delay in its performance under this Agreement 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.
5.9 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.