Hosted Software & Services Terms of Service
This Hosted Software & Services Terms of Service is entered into by Pixta, Inc (Pixta), a California Corporation headquartered in Novato CA, and any person, persons or other entities (the Customer), accessing and/or using Pixta services and/or products. The parties to this agreement may be referred to in these Terms of Service as Customer, you, Pixta, we, and us.
If you install any Pixta Software on your computing devices, you may be asked to agree to an end user license agreement. We refer to each of these as a Separate Agreement. If that happens, the Separate Agreement shall take precedence if there is a conflict between those terms and these Terms, to the extent of such conflict and with respect to the particular subject matter of that Separate Agreement.
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to you and us. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service (see How is My Account Closed below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
You create an account by providing us with an acceptable username and email address, and creating a password. We refer to this as your Account Information. We encourage you to use a distinct and non-obvious username and password combination, ideally one that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content, you should immediately change your password and notify our Customer Support team.
Second, although you may use Pixta with only a web browser, you may need to install our client software on your computers, tablets and other devices, if applicable. Obtaining those devices and paying for their connectivity and data plans is your responsibility. Pixta also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Pixta Software provided to you by or on behalf of Pixta, for the sole purpose of enabling you to use the Pixta Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Pixta Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Pixta or the Service.
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant Pixta a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, Pixta acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
In order to enable Pixta to operate the Service, we must obtain from you certain license and other rights to the Content you submit so that our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of your Content doesn’t infringe applicable copyright and other laws. This means that by using the Service and uploading Content, you grant Pixta a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on tablets as well as computers) and reproduce such Content to enable Pixta to operate the Service. You also agree that Pixta has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as your Content is stored with us), and include a right for Pixta to make such Content available to, and pass these rights along to, others with whom Pixta has contractual relationships related to the provision of the Pixta Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Pixta determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with Pixta, you also agree that the licenses granted to Pixta in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Pixta the right and license to enable such access to your Content.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Pixta that you have the unfettered legal rights and authority to submit your Content to Pixta, and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to Pixta and granting Pixta the rights described in these Terms, you are not infringing the rights of any person or third party.
Finally, you understand and agree that Pixta, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Your use of the Service must be in accordance with these Terms. When it comes to your use of Pixta, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content “ such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, Content) “ created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with Pixta. The User Guidelines provide more specific details regarding the appropriate conduct on the Service.
While you own the Content you store with Pixta, you acknowledge and agree that Pixta (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on Pixta’s servers and all software deployed by you or a third party to enable Pixta software applications for compatible computing devices that enable access and use of the Service through such device (the Pixta Software).
In agreeing to these Terms, you also agree that the rights in the Service and Pixta Software, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Pixta Software, unless you are expressly permitted to do so under an open source license or we give you express written permission.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any Pixta Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages and other data, and impose other limitations at any time, with or without notice. You also acknowledge that a variety of Pixta actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods for the purpose of software upgrades, enhancements or other product changes, in addition to any unforeseen or unavoidable activities not in the control of Pixta and agree that Pixta has no responsibility or liability as a result of any such actions or results. However, if you find that any such modifications or interruption of the Service adversely affects you, you may notify us, explain the adverse impact the modification has created and, if you desire, request a termination of your Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Service subscription for a period of time equal to the interruption and/or refund a portion of your Service subscription fee equal to the remaining unused term of the Service subscription, as we determine appropriate. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service if Pixta ceases to do business.
Pixta may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable.
Pixta may from time to time include, as part of Pixta Services and Software products, computer software and other services and/or products supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. Pixta expressly disclaims any warranty or other assurance to you regarding such third party software and/or services including data accuracy or validity of information provided by third parties.
In connection with any modification of the Service, Pixta may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. In all cases, you agree to permit Pixta to deliver these updates to you (and you to receive them) as part of your use of the Service.
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with the United States Digital Millennium Copyright Act [www.copyright.gov] and other applicable laws). If you believe that your intellectual property rights have been violated, please notify us and we will investigate. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and Pixta does not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights.
The Pixta Service is available worldwide, but our data processing operations take place in the United States. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks owned by Pixta and third parties located in California and other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
You may close your account with our Service at any time should there be no term constraints previously agreed to, for any reason. Pixta may suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Pixta suspending or closing your account may include, without limitation: (i) breach or violation of these Terms or any Separate Agreement, (ii) an extended period of inactivity (determined in Pixta’s sole discretion), (iii) your nonpayment of any fees or other sums due Pixta or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (vi) unexpected technical or security issues or problems.
In most cases, in the event we elect to close your account, we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on Pixta™s servers (unless we determine that we are legally prohibited from enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
If you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Pixta through the Contact Us, User Forum or Support interfaces or through any other mechanism (collectively, Contributions), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Pixta is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Pixta shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Pixta may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Pixta without any obligation of Pixta to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Pixta under any circumstances.
We may include or recommend third party resources, materials and developers and/or links to third party websites and applications as part of, or in connection with, the Service. We have no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
You agree to indemnify and hold Pixta, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
The Service Is Available As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PIXTA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) PIXTA DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PIXTA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
We may provide you with notices by email, regular mail or postings on the web site(s) related to the affected Service. Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to Pixta must be delivered by email to firstname.lastname@example.org. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
926A Diablo Ave #542
Novato, CA 94947
Attention: General Counsel
If you are a resident of the United States or Canada, these Terms and the relationship between you and Pixta (including any dispute) shall be governed in all respects by the laws of the county of Marin, State of California, United States of America, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
We want to know if you have a problem, so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Service or any Pixta Software, as we want to ensure that you have an excellent experience.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. Pixta provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Pixta in any other manner, you shall be in violation of these Terms and you agree that Pixta shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Pixta for its reasonable costs incurred in defending against such improperly initiated claim. You agree that, prior to initiating any formal proceedings against Pixta, you will send us written notice and state that you are providing a Notice of Dispute. Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of the United States or Canada, you agree that any claim or dispute you may have against Pixta must be resolved exclusively by a state or federal court located in Marin County, California. You agree to submit to the personal jurisdiction of the courts located within Marin County, California for the purpose of litigating all such claims or disputes.
Unless you are subject to the Arbitration Agreement set out below, if a claim arises between you and Pixta where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This Alternative Dispute Resolution Process shall be initiated by either party sending notice to the other, in which event you and Pixta agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the Arbitration Manager) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Dispute Manager will be borne equally by the parties or be submitted to the Dispute Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Pixta agree that any and all disputes or claims that have arisen or may arise between us – except any dispute relating to the enforcement or validity of your, our or either of our licensors™ intellectual property rights – shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Our arbitration proceedings would be conducted by the American Arbitration Association (“AAA”) under its rules and procedures applicable at that time, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA’s website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator’s discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Pixta users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
The AAA rules will govern the payment of all filing, administration and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is US$10,000 or less, Pixta will pay all filling, administration and arbitrator fees associated with the arbitration, so long as (i) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration and (ii) your claim is not determined by the arbitrator to be frivolous. In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Pixta will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Pixta for all fees associated with the arbitration paid by Pixta on your behalf, which you otherwise would be obligated to pay under the AAA’s rules.
YOU AND PIXTA AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PIXTA USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
These Terms constitute the entire agreement between you and Pixta and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Pixta for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Pixta shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.