This is an agreement (“Agreement”) between Pixl Labs, LLC (“Company”) and any person (“User”) who completes the registration process to open and maintain an account with Company’s personal service (“Service”). Company and User are collectively referred to as the “parties.” Company operates under several trademarks or brands including: Pixl, Pixl Labs and Pixl Labs, LLC.
- Description. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Subject to [the timely payment of all Fees and] the terms and limitations set forth in this Agreement, Company agrees to provide User with a personal, non-transferable and non-exclusive account enabling User to access and use the Service (but not for service bureau, time-sharing, or similar services). The Company reserves all rights not expressly granted to User, including, but not limited to, the right to alter, modify, update, enhance, or improve the Service.
- Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not foreseeable by Company.
- Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User’s use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
- Security. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s passwords and all use or charges incurred from use of the Service with User’s passwords.
The intellectual property utilized in providing the Service is the valuable, confidential and copyrighted property of Company. User may use the Service as permitted herein and may not otherwise modify, adapt, translate, or create derivative works based on the Service without the prior written consent of Company. If User wishes to use the Service or any ancillary and interface software utilized in providing the Service in a manner not expressly permitted by this Agreement, User may request express written permission from Company by giving to Company a written description of the intended use and such other information as Company may reasonably request. Such written permission may be given or withheld in the sole discretion of Company. As between the parties, Company owns all right, title, and interest in and to the Service, including without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, patents and goodwill therein. As between the parties, User shall retain all rights, if any, which User may have in any images, photographs, illustrations, graphics, audio clips, video clips and text retrieved, viewed or sent by User using the Service. “Pixl Labs” and the “Pixl Labs” logo are service marks of Company. All other trademarks, service marks and logos used on the website or through the Service are the trademarks, service marks or logos of their respective owners.
User is solely responsible for any and all acts and omissions that occur under User’s account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; (h) consume an unfair, unequal, or excessive amount of network or system resources including but not limited to; excessive SMTP usage, excessive IMAP usage, or use of a automated program to transmit large quantities of information; or (i) engage in any other activity deemed by the Company to be in conflict with the spirit or intent of this Agreement.
This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. This Agreement will terminate automatically without notice from Company if User fails to comply with any provision of this Agreement. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User’s access to or use of all or any portion of the Service; and (c) terminate this Agreement. Termination for any reason shall not affect Company’s entitlement to any sums due hereunder, or any additional remedies provided by law or equity. Under no circumstances shall User be entitled to any refund on any portion of fees paid in connection with this Agreement.
Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID, IF ANY, BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
COMPANY IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE SERVICE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE SERVICE AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY COMPANY CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
User agrees to indemnify, hold harmless and defend Company, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) User’s use of the Service, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service by User or through User’s account, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 6.
- Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by email at the address provided to Company by User. User’s access to or use of the Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
- Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
- Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
- Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party’s last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
- Law. This Agreement shall be treated as though it were executed and were to be performed in the County of Webb, State of Texas, USA. The rights and obligations under this Agreement shall not be governed by the United Nations Convention on Contracts or the International Sale of Goods, the application of which is expressly excluded, but such rights and obligations will instead be governed by the laws of the State of Texas, USA. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Texas, USA, without regard to conflict of law principles.
- Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Texas. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in the State of Texas. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Texas and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the State of Texas.
- Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts of the State of Texas, USA.
- Action. No action arising under this Agreement may be brought by User more than one year after the cause of action has accrued.
- Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
- Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
- Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Survival. The terms and provisions of Sections 2, 3, 5, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
- Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.