IMPORTANT: PLEASE READ THESE TERMS OF USE AND SERVICE ("AGREEMENT or "Agreement") CAREFULLY. THESE TERMS OF USE AND SERVICE REPRESENT A LEGAL AGREEMENT BETWEEN YOU AND THE LEGAL ENTITY YOU REPRESENT ("CUSTOMER") AND PIXLEE TURNTO, INC., A DELAWARE CORPORATION, AND ITS OTHER SUBSIDIARIES AND AFFILIATES AS APPLICABLE (COLLECTIVELY, "PIXLEE TURNTO"). BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED, UNDERSTANDS AND ACCEPTS THESE TERMS AND CONDITIONS. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR LEGAL ENTITY AND "CUSTOMER" REFERS TO THAT ENTITY. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SUBSCRIPTION. BY USING THE SUBSCRIPTION CUSTOMER WARRANTS TO USE BEST EFFORTS TO ENSURE CONTRACTUAL EFFICACY TO ALL TERMS HEREIN. PIXLEE TURNTO RESERVES THE RIGHT TO REASONABLY UPDATE, MODIFY OR AMEND TERMS BASED UPON NEW FEATURES OR FUNCTIONALITY. CUSTOMER'S CONTINUED USE OF THE SERVICES AFTER CUSTOMER KNOWS OR REASONABLY SHOULD KNOW OF ANY MODIFICATIONS TO THIS AGREEMENT WILL SIGNIFY CUSTOMER'S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS. TO THE EXTENT ANY TERMS OF THIS AGREEMENT DIRECTLY CONFLICT WITH THE TERMS OF ANY FULLY EXECUTED WRITTEN AGREEMENT BETWEEN PIXLEE TURNTO AND CUSTOMER ("SUPPLEMENTAL AGREEMENT"), THE SUPPLEMENTAL AGREEMENT SHALL APPLY. ANY USE OF SUBSCRIPTION IS SUBJECT TO COMPLIANCE OF THE TERMS AND CONDITIONS HEREIN AND FULL PAYMENT OF ANY FEES FOR THE APPLICABLE SUBSCRIPTION TERM.
This Agreement governs the use by Customer of Pixlee TurnTo's provided software and hosted software-as-a-service offerings, including other third-party software or hosted cloud service providers, inclusive of such limitations or optional features as may be specified to Customer in any user documentation, Order, which may include a statement of work ("collectively, Subscription"). Pixlee TurnTo reserves the right to modify and update the features and functionality of the Subscription from time to time in its sole discretion. Subscription is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Pixlee TurnTo regarding future functionality or features.
Subject to all terms and conditions of this Agreement, Pixlee TurnTo hereby grants to Customer the right to access and use the Subscription during the term as expressly agreed in applicable Order(s) and strictly limited to Customer's legitimate business purposes. Customer represents and warrants that Customer has or will procure all rights necessary for any use of any third-party content in connection with the Subscription, including, but not limited to, photos, videos, or other digital content and associated data (collectively, "Content"). Customer is solely responsible for any use of Content used during the Subscription. Customer will have sole discretion as to which Content it will collect and utilize in connection with Customer's use of the Subscription. Pixlee TurnTo has no obligation to monitor or edit the Customer's use any Content or its use of the Subscription itself and shall process Content as directed by Customer. Pixlee TurnTo reserves the right to remove any Content from the Subscription which Pixlee TurnTo reasonably believes may violate this Agreement or any law, rule or regulation or infringe, misappropriate or violate any third-party intellectual property right or privacy right or reasonably expose either party to liability. Customer acknowledges that all content shall be subject to Pixlee TurnTo's policies, including Pixlee TurnTo's U.S. Digital Millennium Copyright Act of 1998 ("DMCA") Policy, which may be found at https://www.pixlee.com/dmca. PIXLEE TURNTO IS A THIRD-PARTY INTERMEDIARY WHO SOLELY TRANSFERS CONTENT FROM THE END USER TO CUSTOMER. PIXLEE TURNTO IS NOT RESPONSIBLE FOR ANY COPYRIGHT INFRINGEMENT, PRIVACY OR MISAPPROPRIATION CLAIMS, OR ANY OTHER CIVIL LIABILITY RESULTING FROM YOUR USE OF THE CONTENT. Customer represents and warrants to use best practices and not to violate any applicable laws, rules, regulations or third-party rights in connection with its use of Subscription. Customer may use third party subcontractors strictly for legitimate internal business purposes, but never allow access or use by any third party working for or reasonably representing the interests of business competitors of Pixlee TurnTo. Customer remains fully responsible for all activities of any such third-party subcontractors occurring under Customer's Subscription account.
All data that Customer either collects or utilizes in connection with the Subscription is defined as ("Customer Data"). Customer acknowledges that the implementation of certain Subscription analytics features requires the use of cookies by Pixlee TurnTo, and Customer has all necessary rights and permissions for such use during the term of this Agreement. To the extent that Customer uses any Subscription for either inbound or outbound syndication of data or content, Customer hereby agrees to Pixlee TurnTo's related terms and conditions at https://www.pixlee.com/terms-syndication, which may be updated from time to time by Pixlee TurnTo. Customer shall ensure that: (i) any website used in the connection with the Subscription contains privacy policies and applicable notices that comply with all applicable laws, rules and regulations and; (ii) all notices are provided to, and all consents are obtained from, applicable third parties for the collection, use and disclosure of any Content or Customer Data as contemplated hereunder, in each case as necessary under applicable law or as required to meet reasonable best practices. If Customer uses third parties' services, software or goods while using the Subscription, it hereby agrees and warrants that it shall acts in compliance with their terms of use. In particular, if Customer uses YouTube while using the Subscription, it must comply with and agrees to be bound by the YouTube Terms of Service (https://www.youtube.com/t/terms). Customer hereby grants Pixlee TurnTo a limited, worldwide, non-exclusive, royalty-free license: (i) during the term to use, reproduce, distribute, make derivative works of, transmit, have transmitted, perform, display, store, archive, and index any Content or Customer Data in order to set up, provide or support the Subscription to Customer; (ii) to collect and use any Customer Data relating to Customer's usage of the Subscription, including third-party interactions with Content or websites in order to provide the Subscription to Customer during the term, strictly for internal business purposes or to improve Pixlee TurnTo's Subscription, products, algorithms and/or services; (iii) disclose aggregated Customer Data relating to the use of the Subscription only so long as such aggregated Customer Data is not identified as relating to Customer; and (iv) to display and use Customer's trademarks on Pixlee TurnTo's website and marketing materials for purposes of identifying Customer as a Pixlee TurnTo customer. Pixlee TurnTo shall establish and maintain technical and organizational security measures to protect against the destruction, loss, alteration, unavailability and unauthorized access to Customer Data in the possession of or under the control of Pixlee TurnTo.
Customer acknowledges that use of the Subscription is provided only for Customer's own internal and lawful use and agrees not to use the Subscription for the benefit of any third party. Customer agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Subscription, or make the Subscription available to any third party or use the Subscription on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Subscription or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Subscription; (iii) disseminate performance information relating to the Subscription; (iv) use the Subscription to develop a competitive product offering; or (v) interfere with or disrupt the integrity or performance of the Subscription, or unreasonably burden the infrastructure utilized by Pixlee TurnTo to deliver the Subscription. Customer may not use any automated means (such as robots or scripts) to access the Subscription except as may be enabled and authorized by Pixlee TurnTo or access or use the Subscription to: (1) promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury; (2) spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including but not limited to: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin or any other form deemed contrary to fundamental human rights and freedoms; or (3) involve any activities that are contrary to morality or public order.
To the extent that Pixlee TurnTo processes any information relating to an identified or identifiable natural person ("Personal Data") in the course of providing the Subscription, it will do so in accordance with the requirements of this Agreement and in accordance with its Data Processing Addendum as posted and updated from time to time at: https://emplifi.io/legal/terms-and-conditions#schedule-c-data-privacy-schedule. Pixlee TurnTo will process the Personal Data only for the purpose of providing the Subscription and in accordance with Customer's lawful instructions. Customer will comply with all applicable federal, state, local and international privacy, data protection, and security laws, rules and regulations, including without limitation, laws relating to the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of Personal Data. Customer has and will continue to have, the right to transfer, or provide access to, the Personal Data to Pixlee TurnTo for processing in accordance with the terms of this Agreement. The parties acknowledge and agree that, in connection with its processing of Personal Data in connection with the Subscription, (i) Customer shall be considered a 'controller' for purposes of the EU General Data Protection Regulation ("GDPR), and a 'business' for purposes of the California Consumer Privacy Act ("CCPA"), (ii) Pixlee TurnTo shall be considered a 'processor' for purposes of GDPR, and a 'service provider' for purposes of CCPA, and (iii) Pixlee TurnTo's processing of Personal Data shall be considered a 'business purpose' for purposes of CCPA. Pixlee TurnTo's Data Processing Addendum is incorporated into this Agreement by reference, and in the event of a conflict between the terms of this Agreement and Pixlee TurnTo's Data Processing Addendum, the terms of the Data Processing Addendum shall prevail, but only with respect to the subject matter thereof.
Support services will be delivered by Pixlee TurnTo in accordance with Pixlee TurnTo's then-current support terms (https://www.pixlee.com/service-level-agreement) as they may be restated from time to time by Pixlee TurnTo's Service Level Agreement ("SLA"). Pixlee TurnTo agrees that any such support services shall not be materially reduced during the Term of this Agreement.
Each party shall keep confidential and not disclose to any third party or use (except as required by this Agreement), any non-public information, obtained from the other party ("Confidential Information"); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been rightfully disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by such party, without use or reference to the other party's Confidential Information, or (iv) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
Customer shall pay Pixlee TurnTo the fees, costs and expenses as referenced in or referred to in each Order. Except as explicitly stated otherwise in the Order, each Order shall auto-renew for the applicable period of the initial terms at the then-current price of the Subscription or Services, unless either party notifies the other in writing of its intent not to renew, not less than thirty (30) days prior to the expiration of the current term. Subscription fees under an Order shall be due and payable in advance of the applicable period. Except as otherwise explicitly described herein, Subscription fees are non-refundable and non-cancellable. Customer agrees to pay the undisputed amounts of each invoice within thirty (30) days of the invoice date, and each invoice shall be deemed undisputed unless Pixlee TurnTo receives written notice of the basis for the dispute within thirty (30) days of the invoice date. All payments will be made in U.S. dollars and without any deductions for any reason. Any amounts due to Pixlee TurnTo under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall indemnify, defend and hold harmless Pixlee TurnTo from any reasonable costs associated with collecting fees due under the terms of this Agreement. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Pixlee TurnTo's net income. Pixlee TurnTo reserves the right to immediately suspend Subscription if Customer is delinquent on payment for undisputed amounts and Pixlee TurnTo has not received payment fifteen (15) business days after written notice of such late payment is provided to Customer. Any pre-printed purchase order terms or conditions set forth on Company purchase orders or other documents provided by Company in connection with payments hereunder shall have no force or effect on Pixlee TurnTo.
Pixlee TurnTo may suspend any Service(s) or Subscription(s) immediately if it reasonably believes that Customer is in material breach of this Agreement or such suspension is reasonably necessary to mitigate economic loss for either party due to an imminent or current breach of this Agreement. If either party otherwise materially breaches this Agreement (including failure to make any payment hereunder), the other party may terminate this Agreement by giving the breaching party thirty (30) days written notice of such breach, unless the breach is cured within the notice period. Upon termination for any reason, Customer shall promptly delete any and all software provided by Pixlee TurnTo for use of the Subscription and thereon remains solely liable and shall indemnify Pixlee TurnTo for any Customer use of Content before or after termination. Customer shall indemnify, defend and hold harmless Pixlee TurnTo for any and all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from damages related to Customer's failure to delete software after termination. Sections, 2, 4, 5, 7, 8 (for payments that are due prior to the expiration or termination), 9, 10, 12, 13 and any indemnification obligations shall survive any expiration or termination of this Agreement.
As between the parties, Pixlee TurnTo owns and/or retains all right, title and interest (including all intellectual property rights) in and to the Subscription and any software, trademarks, technology, materials and information acquired, created, authored, made, conceived or reduced to practice by Pixlee TurnTo (collectively, "Pixlee TurnTo IP"). Pixlee TurnTo reserves the right to display its logos, or other current attribution as necessary such as "Powered by Pixlee TurnTo". Customer is not required to provide any ideas, feedback or suggestions regarding any of Pixlee TurnTo's products or Subscription ("Feedback") to Pixlee TurnTo. To the extent Customer does provide any Feedback to Pixlee TurnTo, Customer hereby grants to Pixlee TurnTo a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to Customer. PIXLEE TURNTO DOES NOT WARRANT RESULTS OF USE OR THAT THE SUBSCRIPTION IS ERROR-FREE, VIRUS-FREE OR THAT USE OF THE SUBSCRIPTION WILL BE UNINTERRUPTED. SUBSCRIPTION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT OF THE LAW, PIXLEE TURNTO DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Pixlee TurnTo will defend and indemnify Customer against costs, damages and expenses (including reasonable outside legal fees) paid to unaffiliated third parties and arising out of any claim during the Term that Pixlee TurnTo's software incorporated into the Subscription infringes any U.S. patent, copyright, trade secret or trademark ("Claim"); provided that: (i) Customer promptly notifies Pixlee TurnTo in writing after Customer's receipt of notification of a potential Claim; (ii) Pixlee TurnTo shall have an opportunity to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Customer provides Pixlee TurnTo, at Pixlee TurnTo's request and expense, with the assistance, information and authority necessary to perform Pixlee TurnTo's obligations under this Section. Notwithstanding the foregoing, Pixlee TurnTo shall have no liability for any Claim to the extent it is based on (i) Customer's written specifications or direction, (ii) Customer's uploading, provision, or use of any Content or (iii) Customer's or any agent of Customer's modification of the Subscription. If, due to a Claim, (i) the Subscription is held by a court of competent jurisdiction to be or are believed by Pixlee TurnTo to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the Subscription, Pixlee TurnTo may at its expense, (i) replace or modify the Subscription to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Customer the necessary rights or licenses so Customer may continue using the Subscription or (iii) terminate its indemnity obligation for further activity by requesting that Customer cease use of the Subscription and then refunding to Customer the unamortized portion of the fees for the Subscription at issue hereunder (assuming amortization on a straight-line basis over the Term of the Agreement). Customer will defend, indemnify and hold harmless Pixlee TurnTo from all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from (i) its use, or its consultants or agents use, of the Subscription, (ii) a breach of this Agreement or (iii) its uploading, provision, or use of any Content.
TO THE FULLEST EXTENT OF THE LAW, EXCEPT FOR WILLFUL MISCONDUCT, BODILY INJURY OR ANY DUTY FOR WHICH A PARTY IS OBLIGATED TO INDEMNIFY AND DEFEND, WHICH SUCH LIABILITY FOR INDEMNITY SHALL BE LIMITED TO THREE MILLION US DOLLARS ($3,000,000), THE OTHER PARTY IN ASSOCIATION WITH THIS AGREEMENT OR ANY ORDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR (II) EXCEPT FOR CUSTOMER'S FAILURE TO PAY ANY AMOUNTS UNDER THE TERMS OF THIS AGREEMENT, FOR ANY AMOUNT GREATER THAN THE AMOUNT ACTUALLY PAID (PLUS, IN THE CASE OF CUSTOMER, OWED) TO PIXLEE TURNTO UNDER THE APPLICABLE ORDER IN WHICH THIS AGREEMENT IS REFERENCED DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE. Neither party shall be liable to the other for any delay or failure to perform (excluding failures to make any payments due hereunder), which is due to causes beyond the reasonable control of said party, including, but not limited to, acts or omissions of a third party, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity (including legislation that makes performance herein impossible, impractical, or economically unreasonable), fires, floods, power outages, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes (a "Force Majeure Event").
This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act are hereby excluded in their entirety from application to this Agreement. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute ("JAMS"). The parties' consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys' fees. Neither party may assign its rights and obligations herein, except a party may assign this Agreement to a successor who acquires substantially all a party's relevant assets or business.
