3. Modifications to these Terms. We may change these Terms from time to time and will revise the effective date when we do so. Your continued use of our Website after the posted effective date constitutes your agreement to be bound by these Terms, as modified, except that modifications will not apply to any dispute arising prior to their effective date.
4. Obligations in Connection with Our Media Rating Council, Inc. (“MRC”) Accreditations. As a company holding MRC accreditations in 17 distinct accreditation areas as granted by the MRC, we are required to, and do, adhere to the MRC’s Minimum Standards for Media Rating Research (MRC Minimum Standards), and applicable measurement guidelines as issued by the MRC, Interactive Advertising Bureau (“IAB”) and the Mobile Marketing Association (MMA). If we determine, in our sole judgment, that your access to and/or use of our Website, or any services or content available on or via our Website, conflicts with any of our accreditation-related obligations then your rights will terminate immediately and we may take all steps reasonably required to disable your access to our Website.
5. Disclosure Regarding Business Partner Qualification (“BPQ”) Policies. Our Website is intended to be accessed and used primarily by employees and representatives of enterprises demonstrating a shared interest with Pixalate in protecting the digital advertising transactions supply chain, specifically as it relates to the detection and filtration of invalid traffic (“IVT”). Pixalate conducts BPQ evaluations as part of our standard operating procedures, which are applicable to both prospective and existing clients, to determine if a business relationship should be initiated or continued with each respective organization, and such procedures may result in your rights under these Terms terminating immediately and Pixalate taking steps as reasonably required to disable your access to our Website. Our BPQ process includes assessments of an organization’s legitimacy and intended use of IVT-related Materials (as defined below), including, among other considerations: (i) compliance with industry standards, including certifications or accreditations by the Trustworthy Accountability Group (TAG), IAB, and/or MRC; (ii) published third-party data sources regarding the company; (iii) Pixalate’s general knowledge of the company’s reputation in the digital advertising industry; (iv) relationships with suppliers or business partners; and (v) responses to our BPQ-related inquiries (both directly and via third-party references). As noted above, our BPQ process is an ongoing assessment, and relationships, once formed, may be terminated by Pixalate at any time in its sole discretion.
6. Pixalate’s Proprietary Rights. You acknowledge and agree that our Website and all designs, text, graphics, pictures, reviews, information, data, software, reports, analytics, indices, blog postings, research, printed, audio or video presentations, documentation, other files, and the selection and arrangement thereof, used in connection with our Website (collectively, the “Materials”) contain proprietary information that is protected by applicable intellectual property and other laws. Pixalate, the Pixalate logo, and all custom graphics, page headers, button icons, proprietary product and service names, and trade dress, are either trademarks or registered trademarks of Pixalate or its licensors in the United States or other countries, and may not be used, in whole or in part, without the prior written permission of Pixalate. Pixalate grants you a limited, revocable, non-transferable and non-exclusive right and license to access and use our Website and any Materials as detailed herein. You agree not to access our Website or any Materials by any means other than through the interface that is provided by Pixalate for use in accessing our Website and such Materials. Except as set forth expressly herein, you have no other rights in our Website or any Materials, and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit our Website or any Materials in any manner, or use our Website or any Materials other than for their intended purpose. All rights not expressly granted to you by Pixalate in these Terms are reserved by Pixalate and its licensors, as applicable.
8. Restrictions. Other than as set forth expressly herein, you will not nor will you allow any third party to (i) access, copy, modify, adapt, translate or otherwise create derivative works of our Website or any Materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of our Website or any Materials; (iii) rent, lease, sell, assign or otherwise transfer rights in or to our Website or any Materials; (iv) remove any proprietary notices or labels on our Website or any Materials; (v) use, post, transmit or introduce any device, software or routine which may interfere or attempt to interfere with the operation of our Website or the availability of any Materials; (vi) use automated means, such as robots, screen scrapers or spiders, to collect and/or index our Website or any Materials; (vii) make our Website or any Materials available for time-sharing, application service provider or service bureau use; (viii) harm others, engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data or any other Materials available on or via our Website; (ix) damage, disable, overburden, or impair our Website or any other software to services or platforms with which our Website interacts; (x) resell or redistribute our Website or any Materials; (xi) use any unauthorized means to modify, reroute, or gain access to our Website; (xii) abuse, harass, stalk or otherwise violate the legal rights of any third party; (xiii) share passwords or other access information or devices or otherwise authorize, allow or enable any third party to access or use our Website; (xiv) attempt to gain unauthorized access to any part of our Website, to accounts that belong to other users, or to computer systems or networks connected to our Website; or (xv) impersonate any person, or otherwise attempt to mislead others about your identity, or post material under secondary user names or other aliases. You will use our Website and any Materials solely for your own internal use, and comply with all applicable laws and regulations in your use of and access to our Website and any Materials. This License will terminate immediately if you fail to comply with these Terms. Notwithstanding the foregoing, you may distribute Materials as reasonably required for your internal business purposes, provided that you properly acknowledge Pixalate as the source of the output; and provided further that you do not: (i) resell such output; (ii) provide output obtained for or on behalf of third parties; and (iii) modify the output in a manner that changes or misrepresents the results. Absent Pixalate’s prior written consent, which Pixalate may provide or withhold in its sole discretion, you may not use any Materials available on or via our Website in connection with litigation or advertising claims. To request such prior consent, contact our Legal Affairs Department at email@example.com.
9. Linking. You may place on your website a link to the homepage of our Website as long as nothing about the link or the context in which it is placed states or implies any endorsement or sponsorship of you, your company or your website by Pixalate. You may not frame any part of our Website, nor incorporate into another website, application or service any intellectual property or Materials of Pixalate or its licensors.
10. Infringement. We may terminate your access to our Website if you appear to have infringed the intellectual property rights of others, and we may remove material that has prompted a complaint of infringement or appears to us to be infringing. If you believe that your intellectual property rights have been infringed by content posted or distributed via our Website, please notify us by sending an email to firstname.lastname@example.org or by sending a notice by U.S. mail or express delivery service to: Pixalate, Inc., 2209 El Camino Real, Suite 202, Palo Alto, CA 94306, Attn: Legal Affairs Department/Copyright.
11. Modifications to our Website and/or any Materials. You agree that Pixalate shall not be liable to you or to any third party for any modification, suspension, or discontinuance of our Website, any portions thereof, or any Materials available on or via our Website.
12. Confidentiality. "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five (5) business days, reduced to writing and marked "confidential." Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under these Term or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable and lawful prior to disclosing such information.
13. Survey Responses, Feedback and Other Communications with Us. By submitting ideas, survey responses, feedback, suggestions, comments, documents and/or proposals to Pixalate (either directly or through our third-party service providers) through surveys, “contact us” forms, email or other communications, you acknowledge and agree that such communications: (a) do not contain confidential or proprietary information; and (b) automatically become the property of Pixalate without any obligation of Pixalate to you. You agree that Pixalate shall be entitled to use, copy, modify, disclose (or choose not to use or disclose), delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute the content of any such communications with us for any purpose, in any way, in any media worldwide, and that you are not entitled to any compensation or reimbursement of any kind under any circumstances with respect to your communications of this nature with us.
14. Termination. You agree that we may, under some circumstances and without prior notice to you, terminate your use of and access to all or part of our Website. Some of the reasons for such termination may include, but may not be limited to: (a) a breach or violation or suspected breach or violation of these Terms or other incorporated agreements or guidelines, (b) a request by law enforcement or another government agency, (c) our decision to discontinue or change all or part of our Website, (d) technical or security issues, or (e) fraudulent or illegal activities. All terminations will be made in our sole discretion and you agree that we will not be liable for any termination of your use of or access to our Website or any Materials available on or via our Website.
16. No Guarantees. The Material that appears on our Website is for general informational purposes only. Although we aim to provide a Website that is useful, it is important to be mindful that our Website will, from time to time, contain errors. Our Website includes Materials collected from and provided by third parties that we may not have evaluated or reviewed. We make no guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the Materials available on or via our Website, and you should not rely on such Materials without independent verification. We invite you to bring to our attention any Materials that you believe to be inaccurate. Please forward a copy of the Materials to our Legal Affairs Department at Pixalate, Inc., 2209 El Camino Real, Palo Alto, CA 94306, along with an explanation of the inaccuracies, or call (888) 749-2528.
17. Pixalate’s Opinions. With respect to Pixalate's seller trust indexes, mobile app trend pages, and any other Website pages or Materials that present ratings and/or rankings for certain business entities, mobile apps, or other subject matter, the applicable categories, relative weightings thereof and other proprietary judgements reflect Pixalate's opinions with respect to factors that Pixalate believes will be of value to BPQ-qualified purchasers or sellers of digital advertising inventory, advertisers and/or agencies representing advertisers, and/or publishers of websites and/or apps (or competitive offerings thereto). The scores or ratings in each category reflect Pixalate’s opinions regarding the performance of each business entity, mobile app, or other subject matter, as applicable, with respect to a particular category. The rankings reflect Pixalate's opinions regarding relative performance of each business entity, mobile app or other subject matter, as applicable, with respect to the categories. Pixalate's opinions are just that – opinions, not facts or guarantees – but they are grounded in our proprietary technology and analytics, which we are continuously evaluating and updating.
18. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (I) YOUR USE OF OUR WEBSITE IS AT YOUR SOLE RISK; (II) PIXALATE PROVIDES OUR WEBSITE AND ANY MATERIALS TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. PIXALATE AND ITS OWNERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL 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; AND (III) PIXALATE AND ITS OWNERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (A) OUR WEBSITE AND ANY MATERIALS WILL MEET YOUR REQUIREMENTS; (B) OUR WEBSITE, AND ACCESS TO MATERIALS ON OR VIA OUR WEBSITE, WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE MATERIALS WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF THE MATERIALS ACCESSED, PURCHASED OR OBTAINED BY YOU THROUGH OUR WEBSITE WILL MEET YOUR EXPECTATIONS; (E) SERVERS THAT MAKE THE MATERIALS AVAILABLE TO YOU ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (F) ANY ERRORS WILL BE CORRECTED.
19. LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT PIXALATE AND ITS OWNERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS 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 PIXALATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR THE INABILITY TO USE OUR WEBSITE OR ANY MATERIALS MADE AVAILABLE THROUGH OR VIA OUR WEBSITE, OR ANY OTHER WEBSITE OR SERVICE ACCESSIBLE FROM OUR WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, YOU AGREE THAT PIXALATE IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, TORTIOUS OR ILLEGAL CONDUCT OF YOU OR ANY OTHER PARTY OR ANY INFRINGEMENT OF YOUR OR ANOTHER’S RIGHTS ARISING ON, FROM, OR IN CONNECTION WITH OUR WEBSITE OR THE MATERIALS. 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 DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY. PIXALATE'S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED U.S. $100.
20. Indemnification. You agree to indemnify, hold harmless and defend Pixalate, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against Pixalate or any of its officers, directors, employees or agents, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by Pixalate or any of its officers, directors, employees or agents, arising out of or relating to (i) your breach of any term or condition of these Terms, (ii) your unauthorized use of our Website or any Materials available on or via our Website, or (iii) your violations of applicable laws, rules or regulations in connection with our Website or any Materials available on or via our Website. In such a case, Pixalate will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Pixalate reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
21. Force Majeure. Pixalate shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
22. Dispute Resolution and Mandatory Arbitration. You and Pixalate agree that any claims or disputes (collectively, “Claims”) that arise out of or relate in any way to these Terms, our Website, or any Materials available on or via our Website, shall be resolved by final and binding arbitration or in small claims court. In arbitration, there is no judge and no jury. Instead, Claims are decided by an arbitrator whose authority is created by and governed by this arbitration agreement. Review of arbitration awards in the courts is very limited.
23. Class Action Waiver. You and Pixalate agree that all Claims will be resolved in an individual arbitration. We both agree that there will be no class, representative, or consolidated actions in arbitration. In addition, neither you nor Pixalate may participate in a class or representative action in court as a class member if the Claims asserted in the litigation would fall within the scope of this arbitration agreement if asserted directly by you or Pixalate. To be clear, you and Pixalate both waive any right to participate in any class action involving disputes relating to these Terms. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the jury trial waiver set forth in these Terms will remain in full force and effect.
24. Arbitrator Authority. The arbitrator's authority is governed by this arbitration agreement. You and Pixalate agree that the arbitrator may award the same relief that a court of competent jurisdiction could award – consistent with and limited by these Terms, but the arbitrator may not award declaratory or injunctive relief that extends beyond you and your dealings with Pixalate. An arbitrator may award attorneys’ fees and costs to the prevailing party if a court of competent jurisdiction would be authorized to do so under the applicable law.
25. Arbitration Procedures. You and Pixalate agree that these Terms affect interstate commerce, and the Federal Arbitration Act applies. All arbitrations shall be conducted by JAMS Endispute under its streamlined arbitration rules and procedures (“JAMS”). These rules are available on the JAMS website at http://www.jamsadr.com or by calling 1.800.352.5267. If there is a conflict between the JAMS rules and this arbitration agreement, then this arbitration agreement shall control. Pixalate will pay all filing fees and costs associated with commencing an arbitration, but you will be responsible for paying your own attorneys’ fees (if you chose to use an attorney in arbitration) unless you prevail in the arbitration and the arbitrator finds that you are entitled to recover your fees under applicable law. Except for Claims determined to be frivolous, Pixalate agrees not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law. If you bring an arbitration against Pixalate, the arbitration hearing will be held in the city of San Francisco, California, unless we both agree on a different location.
26. Survival. The following numbered paragraphs shall survive any termination of Terms, together with any other terms and conditions that by their nature are reasonably intended to survive such termination: 1 – 3, 8, and 11 – 29.
27. Jury Trial Waiver. You and Pixalate expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that if for any reason the arbitration agreement contained herein is not enforced or is found inapplicable, our Claims against each other will be resolved by a judge rather than a jury.
28. Construction. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms shall continue in full force and effect.
29. Choice of Law. The laws of the state of California apply to these Terms, without regard to California’s choice of law rules.