REVISED May 25, 2018

 

TERMS OF USE AND END USER LICENSE AGREEMENT

 

Please read the following terms and conditions very carefully. If you do not agree to the following terms and conditions, do not download, install or use the PIX application or the PIX service (including PIX software).  By downloading, installing, or using any portion of the PIX application or the PIX service, you agree to the following terms and conditions.

This terms of use and end user license agreement (“Agreement”), as may be amended from time to time, is an agreement between you and PIX System, LLC and its successors and/or assigns ("PIX", "we", or "us") entered into as of the date you first accepted this Agreement (“Effective Date”).  Any use, reproduction or redistribution of the PIX application, the PIX service or any of the underlying software or related documentation not strictly in accordance with the terms of this Agreement is prohibited.

This Agreement describes the terms under which PIX offers you access to and use of the PIX application and the PIX Service and/or Documentation.  Carefully read this Agreement, including all of the following terms and conditions.  BY CLICKING THE "GET STARTED" BUTTON AND/OR ACCESSING OR USING THE PIX APPLICATION OR THE PIX SERVICE OR DOCUMENTATION, YOU ACKNOWLEDGE THAT YOUR USE OF THIS APPLICATION AND/OR THE PIX SERVICE AND/OR DOCUMENTATION IS GOVERNED AND LIMITED BY THIS AGREEMENT, AS WELL AS PIX’S PRIVACY POLICY (PRESENTLY LOCATED AT http://www.pixsystem.com/privacy-policy) THAT PIX MAY UPDATE AT ITS DISCRETION FROM TIME TO TIME AND WITHOUT NOTICE (“PRIVACY POLICY”), AND, IF APPLICABLE, SUCH OTHER AGREEMENTS THAT MAY BE IN PLACE WITH PIX (INCLUDING WITHOUT LIMITATION A MASTER SERVICES AGREEMENT) YOU CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PRIVACY POLICY AND SUCH OTHER AGREEMENTS.  IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PRIVACY POLICY AND SUCH OTHER AGREEMENTS, DO NOT INSTALL OR USE THE PIX APPLICATION OR THE PIX SERVICE OR DOCUMENTATION. 

Other Agreements.  Your use of the PIX Service may be provided under the Terms of a separate agreement, either directly with you or with a third party in connection with the Project(s) for which you will be using and/or accessing the PIX Service, including, without limitation, a Master Services Agreement or a separate agreement with an individual or entity for whom or for which you are providing work, rendering services or otherwise providing a benefit (whether as an employee, independent contractor, consultant, advisor, investor or other type of representative capacity) (“Other Agreement(s)”). In the event of a conflict between this Agreement, including, without limitation, any of the terms, conditions, covenants, obligations and/or limitations (collectively, “Terms”) of this Agreement, and such Other Agreement(s), including, without limitation, any Terms of such Other Agreement(s), such Other Agreement(s) and its applicable Terms shall supersede and control. 

 

1. Definitions 

As used in this Agreement, the following terms have the stated meaning:

(a)       “API” means PIX’s application program interface specifications, and updates thereto.

(b)       “Confidential Information” means information which a reasonable person would understand is confidential and proprietary, including the Terms of this Agreement, the Content, the Service, API’s, Log-In Information, non-public elements of the Project, information concerning PIX’s operations, business, financial affairs, products, product designs, technology, technical information, marketing plans or customers; unless (i) publicly available without breach of any obligation owed to PIX; (ii) already known by you prior to disclosure and without breach of any obligation owed to PIX, (iii) independently developed by you without breach of any obligation owed to PIX prior to the Effective Date, or (iv) received by you from a third party without breach of any obligation owed to PIX.

(c)       “Content” means the content, information and data submitted by you (or other users) to the Service for a particular Project and digitally stored, managed, transferred and made available through the Service.  You acknowledge that the Content contains proprietary information that is subject to the terms and conditions of this Agreement.

(d)       "Disabling Device" means any unauthorized computer code: (i) that is intentionally or unintentionally designed to disrupt, disable, harm, or otherwise impede in any manner (including aesthetic disruptions or distortions) the operation of any software, firmware, hardware, computer system, or network (sometimes referred to as "viruses" or "worms"); (ii) that would disable or impair in any way the operation of any software, firmware, hardware, computer system, or network based on the elapsing of a period of time, exceeding an authorized number of copies, or advancement to a particular date or other numeral (sometimes referred to as "time bombs," "time locks," or "drop dead" devices); (iii) that would permit you, any other user or any third party to access any firmware, software, hardware, computer system, or network to cause such disablement or impairment (sometimes referred to as "traps," "access codes," or "trap door" devices), or other similarly harmful, malicious, or hidden procedures, routines, or mechanisms which would cause any software, firmware, hardware, computer system, or network to cease functioning or cause any damage or corruption to data, storage media, equipment, or communications, or to otherwise interfere with operations of the Service or 3rd Party App; or (iv) that contains surveillance software or routines or data gathering or collecting software used to collect data or information.

(e)       “Documentation” means any explanatory written materials related to the Service.

(f)        “Master Services Agreement” means an agreement entered into by a third party with PIX pursuant to which you are authorized to access and/or use the Service, in accordance with the Terms of such agreement or as may otherwise be determined among PIX and such contracting third party.  For purposes of clarity, to the extent the agreement with the third party has a different title (e.g., “Master Hosted Services Agreement” or “Master Agreement”) such is included in the aforementioned definition and referred to in this Agreement as a Master Services Agreement.

(g)       “Project” means the development, pre-production, production, post-production, marketing, broadcasting, exhibition and/or distribution of a film, television program, commercial, or other media production for which use and/or access to the Service is provided by PIX specifically to the party responsible for such film, television program, commercial or other media production pursuant to a Master Services Agreement, Other Agreement(s) or a substantially similar terms of use and end user license agreement that is in full force and effect. 

(h)       “Service” or “PIX Service” means (i) the services provided by PIX in a multi-tenant software-as-a-service model, including without limitation associated software, firmware, hardware, API’s, and features provided by PIX, (ii) websites or applications created by or on behalf of PIX, (iii) the PIX Developer Program and any other services or programs PIX may chose to offer; and, (iv) any upgrades, modified versions, updates, improvements, enhancements, additions or derivatives of any kind to any of the aforementioned.

(i)         “3rd Party App” means any application, program or software not written by or on behalf of PIX that is owned and/or controlled by a third party (excluding any PIX Property or any element of the PIX Property contained therein) and that accesses the PIX Service via an API or other means.  For clarity, 3rd Party App’s include software developed as part of the PIX Developer Program.

 

2. License and Service Terms

 (a)      Permitted Use and License.  PIX provides you with access to the Service (which, for clarity, includes, without limitation, by way of the PIX application) and Documentation subject to and in accordance with the Terms of this Agreement.  In connection therewith you are hereby granted a limited, non-exclusive, revocable, non-transferable, non-assignable right and license to access and use the Service for legitimate business uses for a particular Project or set of Projects pursuant to this Agreement.

 (b)      No Service Guarantee; Service Interruption. PIX makes no guarantee that the Service is impensetrable by unauthorized persons and disclaims any liability for security breaches or the unavailability of the Service and/or Documentation or any delay or failure to perform resulting from any causes whatsoever.  You understand and agree that no Content transmission over the Internet can be guaranteed totally secure, and although we strive to provide for secure transmission of all Content from the user's computer to PIX servers and for secure storage of all such Content, we cannot and do not warrant the security of any Content that is transmitted (or intended to be transmitted) to or by us or stored on our servers, and all such transmissions (or intended transmissions) are at your own risk.  PIX reserves the right to interrupt all or any aspect of the Service from time to time on a regularly scheduled basis or otherwise with or without prior notice, for any reason (or no reason), including, without limitation, in order to perform maintenance. You understand and agree that delays and disruptions of other network transmissions are completely beyond our control.  You acknowledge that the Service may also be interrupted for reasons beyond the control of PIX and PIX cannot guarantee that you will be able to access the Service, Content or your user account whenever you may wish to do so. PIX has the right at any time for any reason or no reason to change and/or eliminate any aspect of the Service as PIX shall determine at its discretion.  Solely for purposes of clarity and without limiting or waiving any Term set forth elsewhere in this Agreement, we are entitled, with immediate effect, to block your access to the Service where you: i) misuse the Service or use the Service in a manner that violates applicable law; ii) fail to pay fees due to us in a timely manner; or iii) breach this Agreement.  Your right to access and use the Service is provided at our discretion and may be suspended or terminated at any time.

 (c)      User Account and Log-In Information.  You understand and acknowledge that there is only one (1) account per person and that no accounts may be shared or transferred in any manner.  During the registration process, you may be required to provide a user name, password(s), business telephone number (but no personal telephone number), verifiable work or company email address (but no personal e-mail address), and any other log-in information and/or account information used to identify you as an authorized user of the Service (collectively, “Log-In Information”). You are responsible to protect and maintain the confidentiality of all Log-In Information and for all use of your Log-In Information (whether or not authorized by you).  You may not share or transfer any Log-In Information in any manner other than as expressly set forth in this Agreement and, without waiving any of PIX’s rights or remedies pursuant to this Agreement, any sharing by you of Log-In Information (or Content) is at your own risk. You may not choose a user name that is offensive, improper, vulgar or violates any individual or entity's trademark rights, copyright, publicity rights or other proprietary rights. You also may not use a user name that may mislead others to believe you to be an employee or representative of PIX.  PIX may change your user name, block your registration, remove your user name from all aspects of the Service, and/or suspend or terminate your access to the Service if PIX determines, at its discretion, that your user name is contrary to the Terms of this Agreement, including, without limitation, the aforementioned requirements in this paragraph. PIX reserves the right, in its discretion, to delete or alter any user name, terminate or suspend your access to the Service, deactivate your user account or terminate any license granted in this Agreement.

 (d)      User Responsibilities and Limitations.  Your use of the Service is solely for business purposes as contemplated by this Agreement; you shall not license, sublicense (except as set forth in Section 2(i)), sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service or any part thereof available to any other individual or entity. You agree to comply and will comply with all Terms set forth in this Agreement, and applicable third party agreements, and understand that you (in addition to the individual or entity responsible for the Project, to the extent applicable) are responsible for all activities that occur in your user account and for your compliance with this Agreement.  You further agree to:

(i)  use the Service in accordance with the Documentation;

(ii) not attempt to gain unauthorized access to the Service, and to not attempt to gain or grant unauthorized access to the Service to any other person or entity;

(iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and will promptly notify PIX by emailing support@pixsystem.com of any such unauthorized use or access of which you become aware or have reason to suspect, including without limitation any loss, theft, or unauthorized disclosure of any Log-In Information;

(iv) not send or store any content or information (including the Content) that violates applicable laws or violates third party privacy rights, rights of publicity and/or intellectual property rights, and will comply with all applicable local, state, federal and foreign laws, rules and/or regulations in using the Service; and

(v) remain in substantial compliance at all times with any applicable service policy or security policy (which PIX may establish at its discretion from time to time). 

You also agree to promptly notify PIX of any such unauthorized access or use, or any good faith belief of any conduct that may not be consistent with the aforementioned responsibilities.  Such notice is to be provided in the manner set forth in Section 16(a).

(e)       Hardware. You are responsible for any equipment or hardware that may be necessary for you to access and/or use the Service.  You are responsible for any damage to any loaned or rented hardware that PIX may provide to you (except for ordinary wear and tear).

(f)        Minimum System Requirements. Minimum systems requirements apply to the use of the Service, and it is your sole responsibility to ensure that your computer system or any other necessary equipment, software or hardware complies with these requirements.

(g)       Personally Identifiable Information. You agree, represent and warrant that but for your Log-In Information (which shall include no more than your name, email address, username, organization, and title) at no time will you submit or upload, or attempt to submit or upload, any personal information (which, for clarity, includes personal data) to the Services or PIX.  You also agree that you will indemnify and hold harmless PIX, its affiliates and/or the entity on whose behalf you may be using the Service, for any and all damages, losses, fees or costs (whether direct, indirect, special or consequential) incurred as a result of your disclosure of any personal information to PIX (whether because of you entering or uploading such personal information to PIX or otherwise placing such personal information in the Service). You understand that data centers and servers used in connection with the Service are located in the United States and are or may be located in other countries as PIX may determine. As used in this Agreement, “personal information” means any information or data that identifies you or a third party, or may be used to locate or contact you or a third party either online or offline, and includes but is not limited to yours or any individual’s name, phone number, address, email address or a government identification number.

(h)       Apple-Related Terms. To the extent that you are accessing or using the Service or Documentation by way of an Apple iOS application or “app”, PIX (and not Apple) makes the Service available to you in accordance with this Agreement, including, without limitation, the Terms of this paragraph, which are required by Apple.  The parties acknowledge that Apple is not responsible for the Service or any of the content thereof (excluding Apple Software included in the app, which is also known as the Licensed Application), and has no obligation to furnish any maintenance or support services with respect to the Service. The license set forth in Section 2(a) is limited to the use of the Licensed Application on an Apple iOS Product that you own or control and as permitted by the Usage Rules.  Without limiting any of the Terms set forth elsewhere in this Agreement, including, without limitation, the disclaimer of all warranties, in the event of any failure of the Licensed Application to conform to any applicable warranty, if any, you may notify Apple and Apple will refund the purchase price for the Licensed Application to you, which is Apple’s sole warranty obligation whatsoever with respect to the Licensed Application (and Service).  For clarity, such includes (and as between us and Apple, is our responsibility) any claims that you or any third party may have relating to the Licensed Application or our possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and (iv) any third party claim that the Licensed Application infringes that third party’s intellectual property rights.  The parties acknowledge that Apple and its subsidiaries are third party beneficiaries of this Agreement solely as it relates to the Apple Software contained in the Licensed Application and, as such, upon your acceptance of the Terms of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of this Agreement solely with respect to such Apple Software contained in the Licensed Application against you as a third party beneficiary thereof.  Please direct any questions, complaints or claims with respect to the Service to PIX System, LLC at 100 First Street, Suite 300, San Francisco, CA 94105, 415.357.9720, support@pixsystem.com.  As used in this Agreement, the term “iOS Agreement” means Apple’s iOS Developer Program License Agreement, the terms “Apple”, “Apple Software”, “iOS”, “iOS Product” and “Licensed Application” have the meanings set forth in the iOS Agreement, and the term "Usage Rules" has the meaning set forth in the App Store Terms of Service.

(i)         PIX Developer Program Terms.  PIX may choose to offer a program intended to enable users of the Service to integrate the Service with other applications in an effort to automate workflows (“PIX Developer Program”).  As part of the PIX Developer Program you may have the opportunity to access, use and/or modify sample code that PIX may chose to make available, including, without limitation, working examples of how to access the API’s (“Sample Code”) or the opportunity to create 3rd Party applications (“Apps”).  For clarity, the term “PIX Developer Program” includes Sample Code and 3rd Party Apps.  Your participation in the PIX Developer Program (including, without limitation, access to, use and/or modification of Sample Code and/or the creation of 3rd Party Apps), is subject to the Terms of this Agreement, including, without limitation, your responsibilities and the limitations set forth in Section 2(d), the additional limitations and restrictions set forth in Section 4(c), and the conduct provisions set forth in Section 11 (as all of such shall specifically apply to the PIX Developer Program), and the following: 

(i) some or all of your participation in the PIX Developer Program may be by invitation only;

(ii) you will not use the API’s, Sample Code or otherwise write any code or software, or design or create any products or applications, that contribute to or facilitate the violation of this Agreement by third parties, including, without limitation, the sharing of Confidential Information and/or access to the Service;

(iii) you will not use the API’s, Sample Code or otherwise write any code or software, or design or create any products or applications, that contribute to or facilitate the violation of any other agreement or any applicable law;

(iv) should PIX make any changes to the PIX Developer Program and/or PIX Service (including, without limitation, updates and modifications) (all of which, for clarity, PIX has the right to do, at any time and without any notice), such changes may affect the functionality of programs or applications you are developing and PIX will not be liable in any manner for how such functionality, programs or applications may be affected; and

(v) should PIX determine to terminate the PIX Developer Program or terminate access to the Service, API’s, and/or Sample Code (which, for clarity, PIX has the right to do at any time and without any notice), PIX will not be liable in any manner arising from or related to any such termination.

You, and not PIX, are solely liable for any third party claims arising out of your participation in the PIX Developer Program, including, without limitation, your use of the Sample Code and inclusion thereof in any programs or applications you make available to others (including, without limitation, any 3rd Party Apps, as is further set forth below).  Further to Section 7, the Sample Code is offered to you solely on an “AS IS” basis without any promises of warranty, maintenance, support or assistance of any kind, all of such being expressly disclaimed by PIX.  The license set forth in Section 2(a) is limited to the use of the PIX Property as part of the PIX Developer Program in accordance with the Terms of this Agreement, including, without limitation, the creation of a program or application that you (and not PIX) own or control (including, without limitation, 3rd Party Apps). 

(j)         Use of 3rd Party Apps.  You, and not PIX, are solely liable for your use of any 3rd Party Apps, including, without limitation, any third party claims arising out of your use or recommendation of 3rd Party Apps on or in connection with your Project(s). Your use of 3rd Party Apps is subject to the Terms of this Agreement, including, without limitation, your responsibilities and the limitations set forth in Section 2(d), the additional limitations and restrictions set forth in Section 4(c), and the conduct provisions set forth in Section 11, and the following:

(i) should PIX make any changes to the PIX Developer Program and/or the Service (including, without limitation, updates and modifications) (all of which, for clarity, PIX has the right to do at any time and without any notice), such changes may affect the functionality of 3rd Party Apps, and PIX will not be liable in any manner for how such 3rd Party Apps may be affected;

(ii) should PIX determine to terminate access to a 3rd Party App (which, for clarity, PIX has the right to do at any time and without any notice), PIX will not be liable in any manner arising from or related to any such termination; and

(iii) PIX has no obligation to provide any maintenance or support services with respect to 3rd Party Apps.

Further to Section 7, access to a 3rd Party App is provided to you strictly on an “AS IS” basis and PIX makes no warranty of any kind in connection therewith, and you (and not PIX) are entirely and strictly liable for any claims, allegations, demands, actions or complaints arising from, related to or in any way in connection with your access, use and/or modification of a 3rd Party App.

 

3.        Content 

As between you and us, you (either alone or in addition to the individual or entity responsible for the Project, if any) are solely responsible for the accuracy, quality, integrity, non-infringement, security, privacy, legality, reliability, and appropriateness of the Content except where contrary to applicable law.  PIX recommends that you backup and encrypt all original copies of your Content on your own systems before submitting them to the Service).  PIX will use commercially reasonable efforts to secure the Content when in PIX’s possession, subject to any of your rights or the rights of any other party that controls access to the Project(s) and Content you access within the PIX Service.  Except as otherwise provided herein, in case of loss of or damage to Content when in PIX’s possession, PIX’s liability will be limited to restoring any applicable and available backups created per PIX’s standard practice.  You grant us a limited non-exclusive license to use, reproduce, store, perform, publish, display, and distribute your Content within the Service and to otherwise use the Content as permitted in this Agreement or as is otherwise necessary for the performance of the Service, and in accordance with applicable access controls therein.

 

4.        Ownership and Proprietary Rights

(a)       PIX Ownership and Reservation of Rights.  Except as set forth below in Section 4(e), notwithstanding any provision herein to the contrary, (i) we reserve and retain all right, title and interest in and to, and are the sole and exclusive owner of, the Service (excluding any third party software) and Documentation, and any improvements, enhancements, suggestions, feedback, updates or modifications thereto or derivatives thereof, whether developed by PIX, you, any other user of the Service or jointly by any of the aforementioned (collectively, the “PIX Property”) and all intellectual property rights in and to each of the PIX Property, and (ii) no rights or interest in and to the Service and Documentation or any portion thereof is granted to you other than as is expressly set forth in this Agreement.  Without limiting any provision hereof, the source code and object code of the software and firmware in the Service constitutes PIX Confidential Information.  Those elements of the PIX Property necessary for you to access and use the Service and Documentation in the manner contemplated in this Agreement are licensed, and not sold, to you for use only in accordance with the Terms of this Agreement. 

(b)       Suggestions. You hereby irrevocably assign to PIX without reservation or limitation all right, title and interest in and to any improvements, suggestions, enhancement requests, recommendations or other feedback arising out of or related to this Agreement, including, without limitation, in or in connection with the Service or Documentation (collectively, “Feedback”) upon the moment of creation, including, without limitation, all intellectual property rights therein and thereto.  For purposes of clarity, such assignment includes the right to use and exploit all such Feedback throughout the universe in perpetuity in any manner, method, means, platform, device or media, whether now known or hereafter devised.  In the event that any Feedback cannot be so assigned under applicable law you hereby grant PIX a royalty-free, transferable, sublicenseable, irrevocable, exclusive, perpetual license, throughout the universe, to use Feedback in any manner, means, method, platform, device or media, whether now known or hereafter devised, or incorporate any Feedback into the Service or Documentation, and agree to not use Feedback for yourself or any third party’s benefit.  You further agree to waive and hereby so waive any rights of attribution, integrity or any other moral rights arising out of or related to Feedback.

(c)       Restrictions and Additional Limitations On Use. You will not, in whole or in part, directly or indirectly: (i) copy, transmit, reproduce, display, delete, exploit, damage or use the Service, Documentation or any portion thereof (excluding Content) other than as expressly authorized hereunder; (ii) modify, translate, create a derivative work from, data mine or screen scrape the Service; (iii) send or store malicious code, or otherwise interfere with or disrupt the integrity or performance of the Service or the materials contained therein, or perform repeated searches yielding large amounts of Content and having the effect of transmitting significant portions of the Content to you or one or more persons acting with you in concert with the intent of degrading service to any other customer of PIX; (iv) disassemble, decompile, reverse engineer, or attempt to derive source code or other trade secrets from the Service, or attempt to, in whole or in part, alter, disable or circumvent any security, reliability, integrity, accounting or privacy mechanism of the Service or any part thereof; (v) perform load tests, Service network scans, penetration tests, ethical hacks or any other security auditing procedures; (vi) use or permit the use of the Service in the operation of a service bureau; (vii) use or access the Service or any part thereof, or authorize any third party to use or access the Service or any part thereof, to (A) compete or build a competitive product or service, (B) impair the market for the Service or any part thereof, (C) copy any ideas, features, functions or graphics of the Service, or (D) alter, disable or circumvent any security, reliability, integrity, accounting or privacy mechanism of the Service or any part thereof; (viii) remove, obscure, alter, or omit any copyright, trademark, patent, or other legal notices affixed to, or to the media or packaging of, or displayed by or in connection with, the Service; (ix) have any rights with respect to the source code for any of PIX’s software or firmware; (x) introduce any Disabling Device into PIX’s software, firmware, hardware, computer systems, networks, or other resources utilized as part of the Service; (xi) transmit any Content or use the Service in violation of applicable laws; or (xiii) create links to or from the Service for others or frame or mirror any of the websites included as part of the Service or other content that forms the Service.

(d)       Content Ownership.  As between PIX and you, PIX makes no assertion of ownership of the Content and acknowledges your assertion that you (or any other party that controls the Project(s) you access within the Service, including without limitation, the entity on whose behalf you may be using the Service) exclusively own all rights, title and interest in and to all Content; the granting to you of access to the Content shall in no way be interpreted as PIX recognizing any claims or assertions to the Content that you may have (with respect to another party or entity).

(e)       Program or Application Ownership. As between PIX and you, PIX makes no assertion of ownership of the program or application that you develop or create further to the PIX Developer Program (including, without limitation, any program or application created from or with the Sample Code or any 3rd Party App) excluding the PIX Property (and subject to the ongoing rights of third parties) and acknowledges your assertion that you (or any other party that controls such program(s) or application(s) you access within the Service, including without limitation, the entity on whose behalf you may be using the Service) exclusively own all rights, title and interest in and to such program or application excluding the PIX Property; the granting to you of access to any such program or application (including, without limitation, the Sample Code or any 3rd Party App) shall in no way be interpreted as PIX recognizing any claims or assertions to such program or application that you may have (with respect to another party or entity).  Further to Section 7, the Sample Code is provided to you strictly on an “AS IS” basis and PIX makes no warranty of any kind in connection therewith, and you (and not PIX) are entirely and strictly liable for any claims, allegations, demands, actions or complaints arising from, related to or in any way in connection with your access, use and/or modification of the Sample Code.

(f)        Modifications.  We reserve the right to modify the design, operational method, technical specifications, systems, and other functions of the Service and/or Documentation, and may do so at any time without any notice.

 

5.        Intellectual Property

You agree that the Service contains proprietary information and material that are owned and/or controlled by PIX, PIX’s affiliates or related entities, and/or each of their respective licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with this Agreement.

Notwithstanding any other provision of this Agreement, PIX, its affiliated and related entities, and each of their respective licensors, reserve the right to change, suspend, remove, or disable access to the Service, Documentation or Content (or other materials comprising a part of the Service, including, without limitation, the API’s, 3rd Party App’s, and/or the PIX Developer Program) at any time without notice. In no event will PIX or its affiliated and related entities, or each of their respective licensors or professional representatives, be liable for making these changes.  PIX may also impose limits on the use of or access to certain features or portions of the Service or 3rd Party App’s, in any case and without notice or liability.

Except with respect to derivatives of the Sample Code as set forth in Section 4(e), all copyrights in and to the Service (including the compilation of content, postings, links to other Internet resources, and descriptions of those resources) and related software are owned by PIX, its affiliated or related entities, and/or their respective licensors, each of which reserve all their rights in law and equity. THE USE OF THE SERVICE OR ANY PART OF THE SERVICE (EXCEPT FOR LIMITED USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT), IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.

 

6.        No Warranties of Any Kind by PIX; Warranty Disclaimer

TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICE, THE DOCUMENTATION AND ALL ELEMENTS OF THE SERVICE AND DOCUMENTATION ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. PIX AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND TO THE USER, EXPRESS, STATUTORY OR IMPLIED, WHETHER WITH RESPECT TO THE SERVICE, THE APPLICATION PROGRAM INTERFACE, DOCUMENTATION OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, NO WARRANTY OF ANY KIND THAT THE SERVICE WILL BE UNINTERRUPTED, IMPENETRABLE BY UNAUTHORIZED PERSONS OR ERROR–FREE OR THAT THE SERVICE OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS.  PIX, ITS AFFILIATES AND RELATED ENTITIES, LICENSORS, AND EACH OF ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, SECURITY, PRIVACY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PIX (AND ITS AFFILIATES AND RELATED ENTITIES AND LICENSORS) will not be held liable IN ANY MANNER IN CONNECTION WITH access (OR THE DENIAL THEREOF) to the Service or the content stored on THE SERVICE (WHETHER SO STORED by YOU OR other parties) OR THE SECURITY OF ANY CONTENT THAT IS TRANSMITTED (OR INTENDED TO BE TRANSMITTED) TO OR BY US OR STORED ON OUR SERVERS; ALL SUCH TRANSMISSIONS (OR INTENDED TRANSMISSIONS) ARE AT YOUR RISK.

Some countries, states and provinces do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to you. You may have other rights that vary from country to country, state to state, or province to province.

 

7.        Limitation of Liability

NEITHER PIX NOR ANY OF PIX’S AFFILIATES OR RELATED ENTITIES, OR ANY OF THEIR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU, ANY OTHER USER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, exemplary, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS, CORRUPTION OF DATA, ERRORS, UNAVAILABILITY OF THE SERVICE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF YOU, ANY SUCH OTHER USER OR ANY SUCH THIRD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  the TOTAL AGGREGATE liability of PIX AND any of ITS affiliates OR RELATED ENTITIES OR ANY OF THEIR employees, agents, brokers, sucCessorS, LICENSORS, assigns and SUPPLIERS in connection with THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE DOCUMENTATION AND/OR any ELEMENT of the Service will in no event exceed FIVE HUNDRED UNITED STATES DOLLARS (US$500.00).

Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation may not apply to you.

 

8.        Limitation of Liability and Disclaimer of Warranties are Material and Essential Terms of this Agreement 

You agree that the provisions set forth in this Agreement that limit liability and disclaim warranties are material and essential terms of this Agreement.

 

9.        Indemnity

You agree to and will indemnify, defend, and hold harmless PIX and its affiliates and related entities, licensors, suppliers, content providers and each of their respective shareholders, affiliates, employees, agents, successors, officers, and assigns, from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that may arise from the Content, your use of the Service, 3rd Party Apps and/or the Documentation, or any breach by you or on your behalf of this Agreement (including, without limitation, by any third party to whom you provide access to the Services and/or Documentation or who accesses or uses any program or application that you may create in connection with the PIX Developer Program, including, without limitation from or with the API’s, Sample Code, or any 3rd Party App), or any violation by or on your behalf of applicable law.        

 

10.      Conduct 

When accessing and/or using the Service (including, without limitation, any communication features that may be offered in the Service, if at all), you agree not to:

(a)       Transmit or post any content or language which, in PIX’s discretion, is deemed to be unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

(b)       Transmit or post any code, content or language that contains any viruses, trojan horses, worms, time bombs, automation software or other computer programming routines that are intended to damage, modify, interfere with, or otherwise disrupt any system or data including, without limitation, any Disabling Device;

(c)       Impersonate any person or entity, including, but not limited to, a PIX agent or employee, or falsely state or otherwise misrepresent your affiliation with a person or entity; and

(d)       Interfere with or disrupt any aspect of the Service, or any servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.

In addition to the aforementioned, PIX prohibits any conduct or action that PIX determines is contrary to the spirit of Service, and may terminate or suspend your access to the Service, or take any other action that PIX deems appropriate in its discretion.

 

11.      Term and Termination

This Agreement commences on the Effective Date and applies at any time that your user account is active, provided that your rights under this Agreement will terminate immediately and automatically without any notice from PIX if you fail to comply with any of the Terms of this Agreement.  In the event of termination of this Agreement or your user account is deactivated you must immediately cease all use of the Service and/or Documentation, permanently delete any PIX software, Documentation and/or all related files from your computer or that is otherwise in your care, custody or control.  We may, at any time, delete all Content stored by you in the Service unless otherwise mutually agreed in writing and except as stated herein.  You will return to us any hardware loaned or rented to you within ten (10) days of termination of this Agreement or deactivation of your user account or the Service. PIX’s termination of this Agreement or closure of your user account will not limit any of PIX’s rights or remedies at law or in equity or as otherwise set forth in this Agreement.  The provisions of Sections 2(g), 2(h), 2(i), 2(j), 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 will survive any termination of this Agreement.

 

12.      Confidentiality

Except as specifically authorized by PIX, you will preserve the confidentiality of our Confidential Information during the term of this Agreement and indefinitely thereafter but no less than five (5) years thereafter. You will not disclose our Confidential Information to any third party or use, copy, or modify our Confidential Information for your own or any third party’s benefit, other than your use as necessary to access or use the Service or Documentation or as permitted under this Agreement. You will not distribute, redistribute, disclose, or allow disclosure of the Confidential Information to any third party other than to the entity on whose behalf you may be using the Service and its employees, officers, directors, agents, and independent contractors who have a specific need to know the Confidential Information in connection with the subject matter of this Agreement and who are obligated in writing to maintain the Confidential Information in confidence to at least the same extent as you are obligated under this Agreement.  You will not sell, transfer, lease, or license our Confidential Information in any manner whatsoever.

 

13.      Compliance with Applicable Law; Export Controls

You shall comply with all applicable laws, rules, and regulations regarding your access to and use of the Service, including, without limitation, any export control law, and agree not to transfer the Service (or any element thereof) to a foreign national or national destination that is prohibited by such laws, or to any country or territory that PIX determines is prohibited by such laws, export controls and/or sanctions, without first obtaining, and then complying with, any requisite government authorization.  You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.  Without limiting the foregoing, you may not download, use or otherwise export or re-export any software firmware, hardware, application program interface specifications, or features provided by PIX except in full compliance with all applicable laws, rules and regulations. 

 

14.      Disputes 

The parties will first attempt to resolve any dispute under this Agreement by mediation.  If they are unable to do so, such dispute will be resolved by binding arbitration under the JAMS Comprehensive Arbitration Rules and Procedure.  Attorney’s fees may be awarded to the prevailing party. Any such mediation or arbitration will take place in San Francisco, California.  Notwithstanding the foregoing, PIX may seek injunctive or other equitable relief in any court of competent jurisdiction. The arbitration, or any action to enforce this Agreement or any Other Agreement may not be combined or joined with any other action or be part of a class action.

THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION 14, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. 

YOU UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.

 

15.      General Provisions

 (a)      Notices.  The Service is offered by PIX System, LLC (and not by any of PIX’s affiliates, related entities, suppliers or licensors), with offices located at 100 First Street, Suite 300, San Francisco, California 94105.  All notices required or permitted under this Agreement must be in writing and sent to PIX at such address and will be deemed effective: (1) upon delivery, if via personal delivery; (2) one (1) business day after sending if sent via overnight delivery with a tracking number; or (3) five (5) business days after mailing if mailed via certified prepaid U.S. mail, return receipt requested.  (For purposes of clarity, notices may not be sent by email or by any manner, means or media except as expressly set forth in this section.)  PIX may notify you with respect to the Service or otherwise (including, without limitation, any changes to the Service or amendment of this Agreement) by sending an email message to your user account email address or by a posting on the Service.  You agree that your use of the Service constitutes acceptance of any changes to the Service or amendment of this Agreement regardless of how you have been notified.  Such PIX notices shall become effective immediately.

(b)       Assignment.  You may not assign, transfer or delegate this Agreement or any of your rights under this Agreement without PIX’s prior written consent, and any attempted assignment, transfer or delegation without such consent is void. PIX may freely assign or delegate this Agreement or any of the rights set forth in this Agreement without limitation or obligation of any kind. For purposes of clarity, any change of control shall be deemed an assignment (and, as such, subject to the prohibitions set forth in this Section 15(b), among other Terms of this Agreement).  This Agreement will be binding on and inure to the benefit of your and our heirs, successors and permitted assigns.

(c)       Equitable Remedies. Without limiting or waiving any right or remedy to which PIX or its assigns may be entitled under this Agreement or applicable law, in the event of any actual or threatened breach of this Agreement by you or on your behalf, PIX would be irreparably damaged if this Agreement were not specially enforced and, as such, you agree that PIX shall be entitled, without the need to post bond or other security or provide proof of damages, to obtain injunctive relief or other equitable relief in any court of competent jurisdiction. You may not, in any circumstance, seek to enjoin or limit the availability of the Service.

(d)       Attorney Fees and Cost Reimbursement.  In the event any mediation, arbitration or litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all of the costs, attorneys' fees, witness fees and other expenses in connection with such mediation, arbitration or litigation.

(e)       Severability; No Waiver.  If any provision of this Agreement is held unenforceable or invalid, such provision shall be struck and the enforceability of the remaining provisions will not be affected. Our failure to act with respect to any provision of this Agreement or a breach by you or others does not waive our right to act with respect to any other provision or any subsequent or similar breaches.

(f)        Entire Agreement.  This Agreement constitutes the entire understanding and agreement between you and PIX with respect to the subject matter hereof, and, except as to any Other Agreement(s) (e.g., any Master Services Agreement) or as may otherwise be set forth in this Agreement, supersedes any prior or contemporaneous understandings as to the subject matter hereof.

(g)       Publicity.  You have no right to use and shall not use without PIX’s prior written consent the PIX name, PIX logo or the name, voice, likeness, image, photograph, rendering, signature or biography of any employee, contractor agent, officer, director, shareholder, supplier or licensor of PIX or any PIX affiliate or related entity, including, without limitation, in any public announcement, press release or in connection with your business.

(h)       Updates and Changes to Agreement. PIX may update or modify this Agreement and impose new or additional Terms on your access to and use of the Service from time to time entirely at PIX’s discretion.  All such updates or modifications shall be applicable to and binding upon you effective immediately and incorporated into this Agreement.  Your continued use of the Service or Documentation will be deemed acceptance thereof.

(i)         Headings and Construction.  The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement will be fairly interpreted in accordance with its Terms and without any strict construction in favor of or against either party.

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