TERMS OF SERVICE
Last Updated: July 15, 2010
Any person who wishes to access or use any services or offerings made available by Pixetell, Inc., an Oregon corporation with a mailing address of 818 SW 3rd Avenue, Suite 1478, Portland, OR 97204 (“Pixetell”), including without limitation the Pixetell® mixed media messaging solution (collectively, the “Services”), must accept the terms and conditions of these Terms of Service (this “Agreement”) without change.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU USE THE SERVICES. BY CLICKING ON THE APPLICABLE ACCEPTANCE BUTTON FOR ANY OF OUR SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT, INCLUDING ANY MATERIALS AVAILABLE ON ANY Pixetell WEBSITE INCORPORATED BY REFERENCE HEREIN, INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY DESCRIBED IN SECTION 7 BELOW. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE APPLICABLE CANCELLATION BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES. ANY CONTINUED USE OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT.
You agree that Pixetell may modify this Agreement or any policy or other terms referenced in this Agreement at any time by posting a revised version of the Agreement or such Additional Policy on the Pixetell Website or within Pixetell Products at http://pixetell.com/terms-of-service. The revised terms shall be effective as follows:
if the revised terms are (a) for any new Services or features which we are adding at the time of the revision, (b) for the Privacy Notice, (c) for the Conditions of Use, (d) for any other general terms and conditions applicable to our Services, web sites or other properties, or (e) for any free service, then the revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting); and
if the revised terms are otherwise for any then-existing paid Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-confirmation or acceptance button, your acceptance.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement or any revised Additional Policies. It is your responsibility to check the Services website and in-product notifications regularly for changes to this Agreement or the Additional Policies, as applicable. We last modified this Agreement on the date set forth at the top of this Agreement.
Section 1 – Definitions. Capitalized terms shall have the meanings set forth below unless defined elsewhere in this Agreement:
1.1 “Additional Functionality” means the additional Services (i.e., additional security functionality), if any, made available by Pixetell upon your request, as more specifically described within the applicable Documentation. Unless otherwise expressly provided herein, the Services shall include the Additional Functionality which is effectively requested by you in accordance with provisions in this Agreement.
1.2 “Content” means all materials displayed or performed in connection with the Services, including, but not limited to text, graphics, news articles, photographs, images, illustrations, audio clips and video clips made available within any Pixetell mixed media message.
1.3 “Documentation” means any descriptions, instructions or other documentation made available on any related Pixetell website in connection with the Services, as such may be revised by Pixetell from time to time.
1.4 “Fee” means the periodic fee, which may be based upon Usage of the Services during such period, each Subscriber agrees to pay for access to and use of the Services, including additional fees for any requested Additional Functionality, as such may from time to time be adjusted by Pixetell, in its sole discretion, and posted within the Documentation.
1.5 “Non-subscriber” means any User that has not registered for an Pixetell account in accordance with Section 4 below and is utilizing the Services solely to respond to a communication from a Subscriber.
1.6 “Proprietary Rights” means all patents, patent applications, mask works, copyrights, moral rights, trade secrets, know-how and other proprietary rights.
1.7 “Service Levels” means the terms and conditions of Pixetell’s then-current service level agreement.
1.8 “Software” means any client-end plug-ins or components made available by Pixetell to Users for download and use in connection with the Services.
1.9 “Submitted Content” means any Content that you submit in the course of using the Services.
1.10 “Subscriber” means a User that has registered for an Pixetell account in accordance with Section 4 below.
1.11 “Term” means the term of this Agreement, including, as applicable, the Trial Term and the Commercial Use Term (as such terms are defined in Section 3 below).
1.12 “Usage” means actual use of the Services, as measured by Pixetell in accordance with its then-current policies, by a Subscriber and each Non-subscriber that utilizes the Services to respond to a communication from such Subscriber.
1.13 “User” means any person authorized to use the Services under the terms of this Agreement, including without limitation Subscribers and Non-subscribers.
Section 2 – Description of Services. Subject to the terms and conditions of this Agreement, Pixetell will use commercially reasonable efforts to make the Services, as more specifically described in the applicable Documentation, including without limitation any related limitations regarding Usage, authorized recipients or Content type and duration, available to Subscribers and related Non-subscribers during the Term. Certain Services, including the creation of any Pixetell mixed media message, may require Users to download and install the Software. The Services are available for your own personal or business use only, and not for the use or benefit of any unaffiliated third party. With the exception of the Service Levels (as further described in Section 14 below), you understand and agree that the Services, Software and Additional Functionality are provided “AS IS” and “AS AVAILABLE” and that Pixetell assumes no responsibility for the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services, Software, Additional Functionality or any Content or personalization settings. You and any intended recipient of Submitted Content are responsible for obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Services, Software and Additional Functionality, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith. You and any intended recipient of Submitted Content are also responsible for ensuring that such equipment or ancillary services are compatible with the Services, Software and Additional Functionality and Pixetell, therefore, cannot guarantee the delivery of Submitted Content to, or access to the Services by, such intended recipients.
Section 3 – Subscription Types. This Agreement commences on the date you accept the Agreement by either selecting the applicable acceptance option presented on the screen or otherwise using the Services (the “Effective Date”). Unless terminated earlier pursuant to Section 13 below, Pixetell may, from time to time, allow Users to utilize the Services for an initial “free trial” term (the “Trial Term”) that shall commence on the Effective Date and continue for a period of time to be determined by Pixetell, in its sole discretion. During the Trial Term, you may use the Services at no cost. Upon the conclusion of the Trial Term, if any, Subscribers and related Non-subscribers, if any, may utilize the Services for so long as such Subscriber make timely payments to Pixetell of all Fees owed pursuant to Section 11 below, subject to early termination under Section 13 (the “Commercial Use Term”). Additional Functionality is only available during the Commercial Use Term.
Section 4 – Eligibility & Registration. Use of the Services is limited to Users that lawfully can enter into and form contracts under applicable law. Without limiting the generality of the foregoing, minors may not use the Services. Every person who uses the Services hereby represents to Pixetell that he or she (i) is not a minor, is at least over the age of eighteen (18) and may otherwise enter into and form binding contracts under applicable law and (ii) will use the Services solely in accordance with all applicable laws, rules, regulations and policies.
You also agree to provide and maintaining up-to-date and accurate information (including contact information) about yourself and your Pixetell account as prompted by any Pixetell registration form, including but not limited to, name, email and mailing address, telephone number, and, upon commencement of the Commercial Use Term, additional billing and credit card information and any Additional Functionality if desired (such information being the “Registration Data”). If you provide any information that is inaccurate, not current or incomplete, or Pixetell has reasonable grounds to suspect that such information is inaccurate, not current or incomplete, Pixetell has the right to suspend or terminate your account and refuse you any and all current or future use of the Services (or any portion thereof).
Section 5 – License Grant and Restrictions. During the Term, Pixetell hereby grants you a limited, non-exclusive, non-transferable, worldwide right to (i) access and use the Services for your own personal or business purposes and (ii) download, install and use the Software for purposes of utilizing the Services, subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, Non-subscribers may utilize the Services solely to review or respond to a communication from a Subscriber. All rights not expressly granted to you are reserved by Pixetell. You may not access the Services if you are a competitor of Pixetell or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purpose. You also agree not to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or the Services in any way, including, without limitation, providing your User ID (as defined below) and password to any third party to allow such party to access and use the Services; (b) modify or make derivative works based upon the Software or the Services; (c) with the exception of any links automatically generated by the Services, create Internet “links” to any Pixetell website or “frame” or “mirror” any portion of the Services or an Pixetell website on any other server or wireless or Internet-based device; or (d) reverse engineer or access the Software or the Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software or Services.
Section 6 – Account, User ID, Password and Security. You will establish a password and user name (a “User ID”) designation upon completing the registration process. Your User ID is for your personal use only and you may not allow any other party to use your User ID. You are responsible for maintaining the confidentiality of your password, and are fully responsible for all activities that occur under your User ID. You agree to immediately notify Pixetell of any unauthorized use of your password or User ID or any other breach of security of which you are aware. Pixetell is not liable for any loss or damage arising from your failure to comply with this Section 6. You agree not to create multiple User IDs in an effort to obtain multiple rights to use the Services.
Section 7 – Pixetell Privacy Policy. Registration Data and certain other information about you are subject to our Privacy Policy. For more information, see our full privacy policy. You understand that through your use of the Services you consent to the collection and use (as set forth in our Privacy Policy) of this information, including the transfer of this information for storage, processing, and use by Pixetell and its affiliates.
Section 8 – Proprietary Rights; Submitted Content. Pixetell shall own all right, title and interest, including all related Proprietary Rights, in and to all of Pixetell’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Pixetell in providing the Software and Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Software or Services. The trademarks and service marks and other Pixetell logos and product and service names are trademarks of Pixetell (the “Pixetell Marks”). Without Pixetell’s prior written permission, you agree not to display or use in any manner, the Pixetell Marks.
Pixetell does not claim ownership of any Submitted Content. While Pixetell uses commercially reasonable efforts to maintain Submitted Content in accordance with its policies for internal system maintenance, you, and not Pixetell, shall have sole responsibility for backing up and/or securing, including without limitation properly utilizing any optional Additional Functionality related to the security of a Pixetell mixed media message, any Submitted Content and for the accuracy, quality, integrity, legality, reliability, appropriateness and Proprietary Rights or right to use all Submitted Content, and Pixetell shall not be responsible for the deletion, correction, destruction, damage, loss or failure to store any Submitted Content. Solely for the purposes of providing the Services to Users in accordance with the Documentation, all Users grant Pixetell a worldwide, royalty-free, non-exclusive, perpetual, irrevocable and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Submitted Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed on behalf of Pixetell.
Pixetell reserves the right to withhold, remove or discard Submitted Content without notice for any breach, including, without limitation, your non-payment of any Fees. Upon any termination of this Agreement, your right to access or use Submitted Content immediately ceases, and Pixetell shall have no obligation to maintain or forward any Submitted Content. Pixetell shall not be liable or responsible for any losses or damages caused by removal or deletion of files.
Section 9 – User Conduct. You understand that all Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom such Content originated. This means that you, and not Pixetell, are entirely responsible for all Content that you upload, post, transmit, or otherwise make available via the Services. Pixetell does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent, or objectionable. Under no circumstances will Pixetell be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available via the Services.
You agree to not use the Services to:
A. Upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
B. Harm minors in any way;
C. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
D. Upload, post, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
E. Upload, post, transmit or otherwise make available any Content that infringes the Proprietary Rights of any party;
F. Upload, post, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials or any other form of solicitation that you do not have a right to make available under any law or under contractual or fiduciary relationships;
G. Upload, post, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
H. Interfere with or disrupt the Services or servers or networks utilized by Pixetell in connection with the Services, or disobey any requirements, procedures, policies or regulations of networks utilized by Pixetell in connection with the Services;
I. Intentionally or unintentionally violate any applicable local, state, national or international law;
J. Collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through i above; and/or
K. Use Services in a manner that is determined to be inappropriate as outlined in this agreement.
You acknowledge and agree that Pixetell and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. You acknowledge, consent and agree that Pixetell may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (v) comply with legal process; (w) enforce the terms of this Agreement; (x) respond to claims that any Content violates the rights of third parties; (y) respond to your requests for customer service; or (z) protect the rights, property or personal safety of Pixetell, its users and the public.
Section 10 – Third Party Interactions. During your use of the Services, you may enter into correspondence or agreements with, purchase goods and/or services from, or participate in promotions of other third parties. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. Pixetell shall not be liable or responsible for any losses or damages caused by such activity.
Section 11 – Fees and Billings. During the Commercial Use Term, Subscribers agree to pay all Fees associated with the Services on the agreed upon periodic basis. Subscribers will generally be billed periodically, in advance, for all Fees, however, each Subscriber’s first bill may include pro-rated charges from the Effective Date. Additional Usage Fees, if applicable, will also be billed on an agreed upon periodic basis based upon applicable Usage during the preceding period. Subscribers must provide Pixetell with valid credit card and/or other information required during the registration process and Pixetell will charge such Subscriber’s credit card, or otherwise bill Subscriber as mutually agreed upon, for all Fees accordingly. Unless a Subscriber terminates his or her account in accordance with Section 13 below, such Subscriber is responsible for all Fees and Pixetell will continue to bill such Subscriber (and charge the applicable credit card) periodically for such Fees. All Fees are nonrefundable.
Pixetell reserves the right to change the amount of, or basis for determining, any Fees for the Services, and to institute new Fees effective upon at least thirty (30) days prior notice to Subscribers. Pixetell reserves the right to offer special offers of the Services and to provide the Services at no charge for promotional reasons or otherwise (such as a free trial (in addition to the Trial Term)).
Section 12 – Non-Payment and Suspension. Each Subscriber’s right to use the Services is subject to any limits established by Pixetell or by such Subscriber’s credit card issuer. If payment cannot be charged to a Subscriber’s credit card or your charge is returned to Pixetell for any reason, including chargeback, Pixetell reserves the right to either suspend or terminate such Subscriber’s access and account, thereby terminating this Agreement and all obligations of Pixetell hereunder. If a Subscriber has a balance due on such Subscriber’s Pixetell account, the Subscriber agrees that Pixetell can charge these unpaid Fees to the applicable credit card. In cases where a Subscriber fails payment under this Agreement, such Subscriber shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
Section 13 – Termination; Survival. Either you or Pixetell may terminate this Agreement at any time by notifying the other party in writing (including via any communication tool made available as part of the Services) at least five (5) business days prior to the end of the then-current agreed upon period, such termination to be effective as of the end of such period. Pixetell shall be entitled to terminate this Agreement, and also terminate or suspend any and all Services and your access to the Services immediately in Pixetell’s reasonable discretion, without prior notice or liability, if you fall under any of the following items:
1. You or, for Non-subscribers, the applicable Subscriber breaches any of the provisions in this Agreement;
2. You become insolvent, or an application for a proceeding for the bankruptcy or other similar proceeding has been instituted by you or against you;
3. Your entity dissolves, liquidates, is wound-down, ceases to do business, sells or disposes of all or substantially all of its assets or is acquired (by sale of stock or otherwise); or
4. Pixetell determines that continuation of the Services for you is not permitted by applicable law or is otherwise inappropriate.
All Fees paid hereunder are non-refundable. Upon termination of your account, your right to access and use the Services will immediately cease. Sections 7, 8, 11, 12, 15 through 19 and 22 shall survive termination of this Agreement for any reason; provided, however, that Section 11 and 12 shall survive if and to the extent that any Fee or default interest remains unpaid.
Section 14 – Technical Support Services; Service Levels. Pixetell may, but is not obligated to, offer and will not provide technical support services during the Trial Term or to Non-subscribers. During the Commercial Use Term, (i) technical support services shall be available to Subscribers in accordance with Pixetell’s then-current technical support services terms and conditions and (ii) the Services shall be made available to Subscribers in accordance with the Service Levels.
Section 15 – Links. The Services may provide, or third parties may provide, links to or portions of other World Wide Web sites or resources. Because Pixetell has no control over such sites and resources, you acknowledge and agree that Pixetell is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Pixetell shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Section 16 – Indemnity. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party Services operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, including without limitation any data privacy or similar law, or infringement of any intellectual property or other right of any other person or entity, including, without limitation, the restrictions in Section 9 above (ii) Submitted Content you submit, post, upload, transmit or make available through the Services, your use of the Services, your access to any Pixetell website, (iii) your violation of any term or condition of this Agreement, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
Section 17 – Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SOFTWARE AND THE SERVICES IS AT YOUR SOLE RISK. SUBJECT TO THE SERVICE LEVELS, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Pixetell EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) Pixetell MAKES NO WARRANTY THAT (I) THE SOFTWARE AND SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, AVAILABLE, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
(c) ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT.
(d) Pixetell MAKES NO WARRANTY THAT ANY OF YOUR SUBMITTED CONTENT WILL NOT BE LOST OR BECOME UNRETRIEVABLE. FOR THIS AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL SUBMITTED CONTENT AND FILES TO ANOTHER STORAGE MECHANISM PRIOR TO USE OF THE SERVICES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP SUBMITTED CONTENT AND FILES. NEITHER Pixetell NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SUBMITTED CONTENT, FILES OR DATA.
Electronic Communications Privacy Act Notice (18USC 2701-2711): Pixetell MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED VIA THE SERVICES OR ANY WEB SITE LINKED UTILIZED IN CONNECTION WITH THE SERVICES. Pixetell will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Pixetell’s equipment, transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.
Section 18 – Internet Delays. The Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Pixetell is not responsible for any delays, delivery failures, or other damages resulting from such problems, including, without limitation, problems in the transmission of data between the Services and your web browser.
Section 19 – Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT Pixetell SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Pixetell HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY UTILIZING THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Section 20 – No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
Section 21 - Notice and Procedure For Making Infringement Claims. Pixetell respects the intellectual property of others, and Pixetell asks its Users to do the same. Pixetell may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Users who may be infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Pixetell’s Copyright Agent the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. A description of the copyrighted work or other intellectual property that you claim has been infringed;
3. A description of where the material that you claim is infringing is located;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Pixetell’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Attn: Legal support, DMCA Notices
Pixetell, Inc.
818 SW 3rd Avenue, Suite 1478
Portland, OR 97204
Section 22 - General Information.
22.1 Entire Agreement. This Agreement, inclusive of the Privacy Policy, constitutes the entire agreement between you and Pixetell and governs your use of the Services, superseding any prior agreements between you and Pixetell with respect to the Software or Services.
22.2 Choice of Law and Forum. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Venue in any suit or action between the parties arising out of or relating to the Agreement shall be in either the Circuit or District Court for Multnomah County, Oregon or the United States District Court for the District of Oregon in Portland, Oregon.
22.3 Waiver and Severability of Terms. The failure of Pixetell to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
22.4 Assignment. This Agreement, including any rights or obligations under this Agreement, is not assignable, transferable or sublicensable by you except with Pixetell’s prior written consent. Any attempt to assign or transfer in violation of the foregoing shall be null and void. Pixetell shall be entitled to transfer this Agreement and/or any rights and obligations under this Agreement for any reason including, without limitation, in connection with the acquisition of all or substantially of its capital stock or assets, whether by merger, operation of law or otherwise.
22.5 Force Majeure. Pixetell shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Pixetell’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference), fire, power cut, hacking, attack of computer virus, earthquake, flood, war, embargo, strike, riot, inability to secure materials and transportation facilities, or the intervention of any governmental authority.
22.6 Confidentiality. "Confidential Information" referred to in this Section includes any and all information relating to technologies, business, operation, finance, organization or others provided or disclosed by Pixetell to you in writing, orally, through recording media or in any manner in the transactions under this Agreement. Confidential Information shall not include information which (i) is already publicly known or known to you prior to the provision or disclosure; (ii) is or becomes publicly known through no wrongful act of you; (iii) is rightfully received by you from an authorized third party without any obligation of confidentiality; or (iv) is approved by written authorization of Pixetell. You shall not use Confidential Information beyond the purposes of this Agreement, and shall not, without prior written consent of Pixetell, disclose or divulge Confidential Information to any third party. You shall promptly return to the Pixetell, destroy or otherwise dispose of Confidential Information, documents and recording media containing Confidential Information, and copies thereof in accordance with Pixetell's instruction, upon the termination of this Agreement or Pixetell's request at any time.
