Effective as of 15 September 20231. Introduction.
Pixalate Europe Limited and its affiliates (“Pixalate,” “we,” “us,” and “our”) are a global ad fraud intelligence and marketing group, working with brands and digital advertising platforms to detect invalid traffic (“IVT”), improve digital advertising inventory quality, and provide application ("app") and site insights to enable the crafting of ideal digital advertising inventory supply at scale and in alignment with your individual marketing standards. We offer the only system of coordinated solutions across desktop, mobile web, mobile in-app, and over-the-top (“OTT”)/connected television (“CTV”) advertising.
Because these Terms are a legally binding agreement between you and Pixalate, please read them carefully. If you do not agree to these Terms, then you may not access or use our Services.2. Electronic Communications.
When you use any of our Services, or send us emails, text messages, and other communications from your desktop, mobile device or other internet-connected system, you are communicating with us electronically. You hereby consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on or through the Services, and you may retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
3. Disclosure Regarding Business Partner Qualification (“BPQ”) Policies.
Our Services are intended to be accessed and used primarily by employees and representatives of organizations demonstrating a shared interest with Pixalate in protecting the digital advertising supply chain, especially as it relates to the detection and filtration of IVT. To maintain these standards, Pixalate conducts BPQ evaluations as part of our standard operating procedures, which are applicable to our prospective and existing clients. BPQ evaluations are intended to determine if a business relationship should be initiated or continued with each respective organization. Such procedures may result in your rights under these Terms terminating immediately and Pixalate taking steps as reasonably required to disable your access to and use of our Services.
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”), Interactive Advertising Bureau (“IAB”), and/or Media Rating Council, Inc. (“MRC”); (ii) published third party data sources regarding the company; (iii) Pixalate’s general knowledge of the organization’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 at our sole discretion.
4. Obligations in Connection with Our MRC Accreditations.
As a company currently holding MRC accreditations in 17 distinct accreditation areas, 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, IAB, TAG, and the Mobile Marketing Association (MMA). If we determine, in our sole judgment, that your access to and/or use of our Services, or any services or content available on or via our Services, conflicts with any of our accreditation- or certification-related obligations, then your rights will terminate immediately and we may take all steps reasonably required to disable your access to and use our Services at our earliest opportunity.
5. Pixalate’s Proprietary Rights.
You acknowledge and agree that our Services 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 Services (collectively, “Materials”) contain proprietary information that is protected by applicable intellectual property rights and other laws.
All Materials included in or made available through our Services, as well as all compilations thereof, are the property of Pixalate, its affiliates or its content suppliers and protected by United States and international copyright laws.7. Trademarks.
Pixalate, and all related graphics, logos, page headers, button icons, scripts, and service names included in or made available through any Service are trademarks or trade dress of Pixalate or its affiliates, in the U.S. and other countries. Neither Pixalate's nor its affiliates' trademarks and trade dress may be used, in whole or in part, in connection with any product or service that is not Pixalate's or its affiliates', in any manner that is likely to cause confusion among clients or prospective clients, or in any manner that disparages or discredits Pixalate or its affiliates. All other trademarks not owned by Pixalate or its affiliates that appear in any Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Pixalate or its affiliates.8. Registration, Authority, and Security.
As a condition to your access to and use of certain features of the Services, you will be required to register for a Pixalate account. By registering, you certify to us that: (i) you are at least 18 years of age; and (ii) if you are agreeing to these Terms on behalf of an organization (in which case, “you” as used herein shall refer to you and your organization collectively), that you are duly authorized to bind such organization. For the avoidance of doubt, an “organization” includes a corporation, partnership, limited liability company, or other legal entity.
Upon registration, you will be provided with a login identifier (“Pixalate User ID”) and will be required to create a password and provide us with registration information, such as your name, organization name, title and email address. You will be responsible and liable for maintaining the confidentiality of your Pixalate User ID and password. You are not allowed to share your Pixalate User ID and/or password for any reason and are solely responsible for any and all activities that occur under your account(s). You agree to notify us immediately by emailing us at firstname.lastname@example.org upon learning of any unauthorized access to or use of your account or any other breach of security. You agree to provide us with accurate, complete, and updated registration information. Failure to do so will constitute a breach of these Terms, which may result in immediate suspension or termination of your account. In addition, we reserve the right to refuse, suspend, or terminate your registration (or cancel a Pixalate User ID) for any reason and at our sole discretion.
9. Our License to You.
Subject to and conditioned upon your compliance with these Terms and your payment of applicable fees, if any, Pixalate grants you a limited, revocable, non-transferable, non-sublicensable, and non-exclusive right and license to access and use our Services (and any associated Materials) as detailed herein. You agree not to access our Services or any Materials by any means other than through the graphical-user interface and/or API that we provide for such access. Except as set forth expressly herein, you have no other rights in or to our Services 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 Services or any Materials in any other manner. All rights not expressly granted to you by Pixalate in these Terms are reserved by Pixalate and its licensors, as applicable.
10. Your License To Pixalate.
Without limiting any of the other licenses you grant in these Terms, and as reasonably required for our Services, you hereby grant Pixalate and its affiliates a royalty-free, nonexclusive, worldwide, perpetual, irrevocable, and fully sublicensable (through multiple tiers) right and license to Your Trademarks, Content, data, information, photographs, images, videos and other materials and items you provide or make available to Pixalate (collectively, “Your Materials”) including, without limitation, the right to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials (including all related intellectual property rights and other proprietary rights); provided, however, that nothing in these Terms will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). “Your Trademarks” means Trademarks of yours that you provide to us: (i) in non-text form for branding purposes; and (ii) separate from (and not embedded or otherwise incorporated in) any product specific information or materials. “Trademark” means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia or any other source or business identifier, protected or protectable under applicable laws. “Content” means copyrightable works under applicable law.
You are solely responsible for Your Materials. Your Materials may not be false, materially misleading, libelous, defamatory, obscene, vulgar, abusive, harassing, threatening, or otherwise objectionable, invade a person's privacy, infringe another person's intellectual property or proprietary rights, or otherwise violate applicable law. You represent and warrant that you own or otherwise control all of the rights to Your Materials; that you have the full right and authority to grant the rights and licenses granted to us herein with respect to Your Materials; and that the use of Your Materials by Pixalate and its affiliates will not infringe upon or violate the rights of any third party.11. Data License.
The Services may include information or content that is available or accessible to us from a variety of public websites, mobile apps, and other products or services. You authorize us to access your publicly accessible websites, mobile and/or OTT/CTV apps, and other products and services, and collect, store, and use information and content available therein in connection with our business, including to improve the Services and create other products and services.12. Feedback License.
You hereby grant to us an unrestricted, non-exclusive, worldwide, royalty-free, perpetual, irrevocable, freely sublicensable (through multiple tiers) and freely transferable right and license to use Feedback in any manner and for any purpose, including to improve the Services and create other products and services. “Feedback” means any communications, suggestions, ideas, reviews, recommendations, corrections, comments, survey responses, or other feedback regarding problems with or proposed modifications or improvements to the Services made either directly to Pixalate or through our third party service providers.13. Promotional License.
You hereby grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, freely sublicensable (through multiple tiers) and freely transferable right and license to use your organization’s name, organization’s logos and related images, and any written comments you provide to us or otherwise make publicly available concerning your organization’s use of our Services in our communications materials (e.g., on our website, third party websites, press releases, and presentations) for our promotional purposes.14. Websites and URLs Linked to or Referenced by the Service.
The internet changes constantly, and no technique can ever index all pages and Uniform Resource Locators (“URLs”) accessible thereon. In addition, Pixalate cannot guarantee the completeness or accuracy of the websites, apps, apps stores, or other URLs to which the Services link or refer. Further, the process of including website and/or app content or URLs, app store content or URLs, or other third party content or URLs in the Services is largely automatic. Pixalate does not screen the content or URLs included in the Services, and these elements are maintained by persons over whom Pixalate exercises no control. For these reasons, Pixalate assumes no responsibility for the content of any website, app, app store or other URL included in the Services and is not responsible for errors or omissions or for offensive or objectionable content contained on any such elements included in the Services.15. Restrictions.
Other than as set forth expressly herein, you will not nor will you allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of our Services or any Materials; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of our Services or any Materials; (iii) rent, lease, sell, assign or otherwise transfer rights in or to our Services or any Materials; (iv) remove any proprietary notices or labels on our Services 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 Services or the availability of any Materials; (vi) use automated means, such as robots, screen scrapers or spiders, to collect and/or index our Services or any Materials; (vii) make our Services 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 Services; (ix) damage, disable, overburden, or impair our Services or any other software to services or platforms with which our Services interacts; (x) resell or redistribute our Services or any Materials; (xi) use any unauthorized means to modify, reroute, or gain access to our Services; (xii) attempt to gain unauthorized access to any part of the Services or Materials, to accounts that belong to other users, to computer systems or networks connected to our Services, or to any other Pixalate computer systems or networks; (xiii)use our Materials or Services toabuse, harass, stalk or otherwise violate the legal rights of any third party; (xiv) share passwords or other access information or otherwise authorize, allow or enable any third party to access or use our Materials or Services; (xv) impersonate any person, or otherwise attempt to mislead others about your identity using the Services or Materials, or post material under secondary user names or other aliases on our Services; (xvi)violate any local, state, provincial, national, or other law or regulation, or any order of a court (including those relating to data privacy or security) in relation to your performance under these Terms; (xvii) infringe or misappropriate the rights of any person or entity, including their intellectual property, privacy, publicity or other proprietary or contractual rights in relation to your performance under these Terms; (xviii) claim that we are endorsing, recommending or supporting your business, product or service without our prior written approval; (xix) use the Services as part of any machine learning or similar algorithmic activity; or (xx) otherwise interfere with, damage, violate the security or integrity of, or place an unreasonable load on any part of the Services, our infrastructure or systems, or any network, computer, or communications system, software application, or network or computing device, including through the use of viruses, bots, Trojan horses, harmful code, ping floods, denial-of-service attacks, packet or IP spoofing, forged routing or email address information, circumvention or modification of any access keys or other security mechanism employed by us or our Services, or similar methods or technology.
You will use our Services 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 Services 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 Services in connection with litigation or advertising claims. To request such prior consent, contact our Legal Affairs Department at email@example.com. Linking.
You may place on your website a link to the homepage of our Services 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 organization or your website by Pixalate. You may not frame any part of our Services, nor incorporate into another website, application or service any intellectual property or Materials of Pixalate or its licensors.17. Infringement.
We may terminate your access to our Services 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 Services, please notify us by sending an email to firstname.lastname@example.org or by sending a notice by postal mail or express delivery service to: Pixalate Europe Limited, 20 North Audley Street London, W1K 6WE, United Kingdom, Attn: Legal Affairs Department/Copyright.
18. Fees and Payment Terms
The following capitalized terms, when used herein, will have the corresponding meanings provided below:
If you purchase any Subscriptions to Services for which we charge Fees hereunder, unless otherwise specified at the time of purchase, all Fees are:
Taxes will be invoiced and collected by us if and to the extent required by any applicable taxing jurisdiction and you will bear ultimate financial responsibility for the payment of any such Taxes. All Fees payable under these Terms are non-refundable. We may change our Fees for Services offered hereunder at our discretion; provided however, that any such changes will not take effect for you until your next purchase.
With respect to our ATSAPI Services, please note the following:
19. Modifications to our Services 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 Services, any portions thereof, or any Materials available on or via our Services. We may suspend, modify in any way, or cease providing you with access to any part (or all) of the Services or Materials at any time in our sole discretion without notice or liability to you or any third party.20. Confidentiality.
“Confidential Information” means the information that we designate as confidential at the time of disclosure or that should reasonably be understood to be our confidential information, including all of our business information. Confidential Information does not include information that: (i) is or becomes generally available to the public through no act or omission by you or breach by you of these Terms; (ii) at the time of disclosure by us, was lawfully received by you from a third party without breach of any obligation owed to us or the source of such information; or (iii) was or is independently developed by you without use of or reference to the Confidential Information. Confidential Information disclosed prior to your acceptance of these Terms will be subject to this Section 20.
You will: (i) protect all Confidential Information from unauthorized disclosure with at least the same degree of care that you use to protect your own similar confidential information, but not less than a reasonable standard of care; (ii) not use or disclose any Confidential Information for any purpose except to exercise your rights and/or fulfill your obligations under these Terms; and (iii) not disclose any Confidential Information to any person or entity other than your employees and/or contractors whose access is strictly necessary for purposes consistent with these Terms and who are bound by obligations of confidentiality no less stringent than those set forth herein.
You may disclose Confidential Information to comply with applicable law, provided that you give us prior notice (by sending an email to email@example.com or by sending a notice by postal mail or express delivery service to: Pixalate Europe Limited, 20 North Audley Street London, W1K 6WE, United Kingdom, Attn: Legal Affairs Department), of the compelled disclosure or legal proceeding (to the extent permitted by law) and reasonable assistance to and cooperation with us, at our cost, if we desire to contest the disclosure. You and we agree that money damages may be an inadequate remedy for breach of the obligations in this Section 20, and that any such breach may result in irreparable harm to us. Therefore, in the event of any such actual or threatened breach, we will be entitled, in addition to any other rights or remedies available to us at law or equity, to seek specific performance or injunctive relief without the posting of a bond.21. Links and Widgets.
The Material that appears on our Services is for general informational purposes only. Although we aim to provide a website that is useful, it is important to be mindful that our Services 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 Services, 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 via email firstname.lastname@example.org, or via mail to Pixalate Europe Limited, 20 North Audley Street London, W1K 6WE, United Kingdom, along with a reasonably detailed explanation of the inaccuracies; or call us at+44 (0)800 011 2050.
23. Your Responsibilities.
The following capitalized terms, when used herein, will have the corresponding meanings provided below:
You are responsible for: (i) obtaining, provisioning, configuring, securing, maintaining and paying for all computer hardware, software, and communications equipment reasonably required to access and use Pixalate Materials governed by these Terms; and (ii) ensuring that you abide by all Laws applicable to your access to and use of such Pixalate Materials, including Laws designed to protect the privacy of children (e.g., COPPA, GDPR-K).
24. Pixalate’s Opinions.
With respect to Pixalate's publisher trust indexes, 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 or OTT/CTV 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, 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, 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.
With respect to any Pixalate compliance tools relating to COPPA (or any other children’s privacy-related regulation globally) that may be offered under these Terms, it is important to note that the mere fact that an app appears to be directed to children (e.g., data subjects under 13 years of age, as defined by COPPA), does not mean that any such app, or its operator, is failing to comply with COPPA. Further, with respect to apps that appear to be directed to children and have characteristics that, in Pixalate’s opinion, may trigger related privacy obligations and/or risk, such assertions reflect Pixalate’s opinions (i.e., they are neither facts nor guarantees); and, although Pixalate’s methodologies used to render such opinions are derived from automated processing, which at times is coupled with human intervention, no assurances can be – or are – given by Pixalate with respect to the accuracy of any such opinions.25. Disclaimer of Warranties.
THE SERVICES MAY PROVIDE LINKS OR ACCESS TO THIRD PARTY WEBSITES, CONTENT, PRODUCTS AND/OR SERVICES (“THIRD PARTY MATERIALS”), WHICH MAY BE GOVERNED BY ONE OR MORE THIRD PARTIES’ TERMS OR CONDITIONS. WE ARE NOT RESPONSIBLE OR LIABLE FOR SUCH THIRD-PARTY MATERIALS; YOU BEAR ALL RISKS ASSOCIATED WITH THE ACCESS TO AND/OR USE OF SUCH THIRD PARTY MATERIALS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (I) YOUR USE OF OUR WEBSITE (INCLUDING ANY THIRD PARTY MATERIALS) 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, CONTRACTORS, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT,WHETHER ARISING BY A COURSE OF DEALING, USAGE, OR TRADE PRACTICE OR COURSE OF PERFORMANCE; AND (III) PIXALATE AND ITS OWNERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, CONTRACTORS, 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 COMPLETE, ACCURATE, RELIABLE, OR UP-TO-DATE; (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.YOU AGREE THAT YOU ARE NOT RELYING ON PIXALATE’S DELIVERY OF ANY FUTURE FUNCTIONALITY, OR ON ANY OF OUR ORAL OR WRITTEN PUBLIC COMMENTS OR ADVERTISING IN YOUR USE OF THE SERVICES.
FOR THE AVOIDANCE OF DOUBT, WE ARE NOT REGISTERED IN ANY INVESTMENT ADVISORY CAPACITY IN ANY JURISDICTION GLOBALLY, AND DO NOT OFFER ANY LEGAL, FINANCIAL, INVESTMENT OR BUSINESS ADVICE. NOTHING CONTAINED IN THESE TERMS, OR IN ANY OF OUR SERVICES, OR OTHER OFFERINGS, OR IN ANY MATERIALS PROVIDED BY US TO YOU OR OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHOULD BE CONSTRUED AS AN OFFER, RECOMMENDATION, OR SOLICITATION TO BUY OR SELL ANY SECURITY OR INVESTMENT, OR TO MAKE ANY INVESTMENT DECISIONS. ANY REFERENCE TO PAST OR POTENTIAL PERFORMANCE IS NOT, AND SHOULD NOT BE CONSTRUED AS, A RECOMMENDATION OR AS A GUARANTEE OF ANY SPECIFIC OUTCOME. YOU SHOULD ALWAYS CONSULT YOUR OWN PROFESSIONAL, LEGAL, FINANCIAL, INVESTMENT, AND BUSINESS ADVISORS.
THE DISCLAIMERS IN THIS SECTION 25 APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.26. Exclusions of Liability.
IN NO EVENT SHALL PIXALATE AND ITS OWNERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES)INCURRED BY YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO 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, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. 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 CERTAIN DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.27. Limitation of Liability.
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 US$100. THE LIMITATIONS IN THIS SECTION 25 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.28. Indemnification.
You hereby agree to defend Pixalate, and our directors, officers, employees, contractors, shareholders and agents (collectively, the “Pixalate Indemnitees”) against any claims, actions, demands, proceedings and suits against any Pixalate Indemnitee (“Pixalate Indemnitee Claims” ), and indemnify the Pixalate Indemnitees to the fullest extent of applicable law for all related liabilities, damages, settlements, penalties, fines, costs or expenses (including attorneys’ fees and other litigation expenses) incurred by such Pixalate Indemnitees arising out of any Pixalate Indemnitee Claims, to the extent such Pixalate Indemnitee Claims allege, arise out of, or otherwise relate to: (i) your breach of these Terms; (ii) your unauthorized use of, or misuse of, the Services or any Materials available on or via our Services; (iii) any content you have submitted to or through the Services; (iv) any dispute you have or may have with any third party; or (v) your violations of applicable laws, rules or regulations in connection with our Services or any Materials available on or via our Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any Pixalate Indemnitee Claims or other matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and, in such case, you agree to cooperate with our defense of those claims.29. Force Majeure.
We shall not be liable for any delay in performance or failure to perform any of our obligations hereunder where such delay or failure results from any cause beyond our reasonable control, including a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, epidemic, viral outbreak or disease, or a failure or diminishment of power or telecommunications or data networks or services.30. Assignment.
You may not assign, transfer, or sublicense your rights, liabilities, and/or obligations under these Terms, in whole or in part, except with our prior written consent. We may assign, transfer, or delegate these Terms and any of our rights, liabilities, and/or obligations under these Terms, in whole or in part, without your consent.
31. Termination by You.
If you wish to terminate these Terms, you may do so at any time by no longer accessing or using our Services.32. Suspension and Termination by Us.
You agree that we may, without prior notice to you: (i) terminate or suspend your use of and access to all or part of our Services for which you have not paid a subscription fee, (ii) suspend any Services for which you have paid a subscription fee for the following reasons: (a) a breach or violation or suspected breach or violation of these Terms, (b) a request by law enforcement or another government agency, (c) our decision to discontinue or change all or part of our Services, (d) technical or security issues, or (e) fraudulent or illegal activities. You agree that we may also terminate any Services for which you have paid a subscription fee with notice, effective the last day of your current billing cycle.
All terminations and suspension 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 Services or any Materials available on or via our Services.33. Effects of Termination of these Terms.
Upon termination of these Terms: (i) your rights, and authorizations granted to you, to access and use the Services, Materials, and Confidential Information will terminate and you must immediately cease all access to and use of your Pixalate account(s), the Services, Materials, and Confidential Information; (ii) you must pay us any unpaid amount that was due or accrued prior to termination; and (iii) the following numbered Sections shall survive any termination of these Terms, together with any other terms and conditions that by their nature are reasonably intended to survive such termination: 1, 5 - 8, 10 - 14, 16, 18 - 30, 32 - 43.34. 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 Services, or any Materials available on or via our Services, shall be resolved by final and binding arbitration.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator may award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would.35. Collective Legal Action Waiver.
You and Pixalate agree that all Claims will be resolved in an individual arbitration. Both you and Pixalate agree that there will be no group litigation – or other collective, class, representative, or consolidated actions – in arbitration. In addition, neither you nor Pixalate may participate in a group, collective, class or representative action in court as a class member if the Claims asserted in the litigation would fall within the scope of section 34 if asserted directly by you or Pixalate. To be clear, you and Pixalate both waive any right to participate in any group, collective, class or representative action involving disputes relating to these Terms. This collective legal action waiver is an essential part of the parties’ agreement to arbitrate and may not be severed. If for any reason this Section 35 is found unenforceable in relation to a Claim, Sections 34 - 37 will not apply to such Claim. However, the jury trial waiver set forth in Section 38 of these Terms will remain in full force and effect.36. Arbitrator Authority.
The arbitrator's authority is governed by these Terms. 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 reasonable attorneys’ fees and costs to the prevailing party if a court of competent jurisdiction would be authorized to do so under applicable law.37. Arbitration Procedures.
You and Pixalate agree that any dispute of any sort that might arise between you and Pixalate shall be subject to arbitration in accordance with the UK Arbitration Act 1996. All arbitrations shall be conducted by the International Chamber of Commerce (“ICC”) under its 2021 Arbitration Rules and Expedited Procedure Provisions. These rules and provisions are available on the ICC website at the following URL: https://iccwbo.org/dispute-resolution-services/arbitration/ or by email to email@example.com. If there is a conflict between the ICC rules and these Terms, then these Terms shall control. Unless otherwise agreed by Pixalate in its sole discretion, you will be required to pay your portion of applicable filing fees and costs associated with commencing an arbitration, and 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 London, England, unless we both agree on a different location. The parties shall maintain in perpetuity the confidential nature of the arbitration proceeding (including the hearing) and award, unless otherwise required by law or judicial decision.38. Jury Trial Waiver.
You and Pixalate expressly and knowingly waive the right to trial by jury. This means that if for any reason Section 34 contained herein is not enforced or is found inapplicable, our Claims against each other will be resolved by a judge rather than a jury.39. Applicable Law; Right to Seek Equitable Relief.
Notwithstanding anything to the contrary in these Terms, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.40. 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 Services 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.
Except as expressly provided in this Section 40, these Terms may be amended only by a written agreement signed by an authorized representative of each party to these Terms. Disputes arising under or relating to these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.41. Notice and Procedure for Making Claims of Copyright Infringement.
If you believe that your work has been copied in a way that constitutes copyright infringement, please submit your notice in writing to Pixalate's Copyright Agent. Your notice must contain the following information:
Our Copyright Agent for notice of claims of copyright infringement on our Services or in our Materials may be reached as follows:
Pixalate Europe Limited
20 North Audley Street
London, W1K 6WE, United Kingdom
Please note that this procedure is exclusively for notifying Pixalate that your copyrighted material has been infringed. Pixalate reserves the right to terminate accounts of repeat copyright infringers.42. Other.
You represent and warrant you will use the Services, Materials, and Confidential Information in compliance all U.K., U.S. and other export controls laws and that you are not located in a country subject to a U.K. or U.S. government embargo, or that has been designated by the U.K. and/or U.S. government as a “terrorist supporting” country, and that you are not listed on any U.K. or U.S. government list of prohibited or restricted parties.43. General.
These Terms and any applicable terms referenced herein are the entire agreement that governs your access to and use of the Services. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any portion of these Terms is found to be unenforceable or invalid, that portion shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect, and enforceable. For purposes of these Terms: (i) the words “include”, “includes”, and “including” will be deemed to be followed by the words “without limitation”; (ii) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any” and “either” are not exclusive; (iii) the words “herein” and “hereunder” refer to these Terms as a whole; (iv) headings are included for ease of reference only and shall not affect the construction; references to any person shall include natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assigns or transferees; references to any statute, enactment, order, regulation or other legislative instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended, unless specifically indicated otherwise; and words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa.