Please read the following terms and conditions (these “Terms of Service”) carefully before you start use of the Pixelogic service, which includes the website, service offerings and any and all data and content available therein (“Service”). By using the Service, opening an Account or by clicking to accept or agree to these Terms of Service, you accept and agree to be bound by and abide by these Terms of Service and our Privacy Policy, found here, incorporated herein by reference. If you do not agree to these Terms of Service or the Privacy Policy, or if you are prohibited from agreeing to these Terms of Service for any reason, you must not access or use the Service. Pixelogic Media Partners LLC (“Pixelogic”) reserves the right to update and change these Terms of Service, at which time it will update the date of these Terms of Service and your continued use of the Service shall constitute your acceptance of the updated Terms of Service.

 

Account Terms

1. In order to use the Services, you must create an Account and provide your legal full name, a valid email address and any other information requested by Pixelogic or made available for input through Pixelogic.

2. You are responsible for maintaining the security of your Account and password, and you agree to use commercially reasonable efforts, including, at a minimum, security measures consistent with the prevailing industry standards, to prevent unauthorized access to your Account or use of the Service. You agree to promptly notify Pixelogic if you become aware of any security breach, including any loss, theft, or unauthorized disclosure or use of your Account. Pixelogic shall not be liable for any loss or damage from your failure to comply with this security obligation.

3. You are responsible for all user generated content posted and activity that occurs under your Account.

4. You, and you alone, are permitted access to the Services via your Account. You are not permitted to share your Account absent prior written permission from Pixelogic. Any and all users, including within the same organization, should create and utilize only their own Account. An Account may not be shared by multiple people. You are entitled to create only a single Account.

5. You must be a human, not a minor acting without parental and/or guardian consent, and Accounts registered by “bots” or other automated methods are prohibited.

6. Pixelogic may suspend or terminate your Account at any time, within its sole discretion.

7. All of your content, including user generated content as well as any content provided to you by Pixelogic or its service providers, will be inaccessible from the Service immediately upon cancellation of your Account. All content may be permanently deleted, and Pixelogic will have no obligation to recover such content, in whole or in part, in any form.

8. You acknowledge and agree that in order to become a service provider to Pixelogic, you may be required to take and pass a test, the results of which are in Pixelogic’s sole and absolute discretion.

 

Service Terms

 

1. Pixelogic hereby grants to you a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable and terminable and revocable license to access and use the Services consistent with the terms and conditions of these Terms of Service and for internal (if you are an organization), non-commercial purposes only.

2. You acknowledge and agree that the rights granted to you under these Terms of Service are non-exclusive and that nothing in these Terms of Service will be interpreted or construed to prohibit or in any way restrict Pixelogic’s right to license, sell, or otherwise make available the Service, in whole or in part, to any third party or perform any services for any third party.

3. All rights in and to the Services not expressly granted to you in these Terms of Service are reserved to Pixelogic. Pixelogic retains exclusive ownership of all worldwide copyrights, trademarks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Service and documentation, including any derivative works, modification, updates, or enhancements, and nothing in these Terms of Service shall be deemed a grant, by implication, estoppel or otherwise, a license to any other existing or future intellectual property rights unless agreed otherwise, in writing, between Pixelogic and you.

4. Your use of the Service is at your sole risk.

5. Pixelogic provides the Service “as-is” and on an “as available” basis.

6. You may not use the Service for any illegal purpose or to violate any laws, whether in the United States or within your own jurisdiction. In accessing this Service, you are responsible for compliance with any and all applicable laws. Pixelogic does not represent that the Service is appropriate or available for use in all countries and prohibits access where illegal.

7. Pixelogic reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any part of the Service with or without notice. Pixelogic shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any part thereof.

8. Your breach of any of the terms or conditions contained within these Terms of Service will result in the immediate termination of your limited license to the Service.

9. Termination of the Service will result in the deactivation or deletion of your Account or your access to your Account as well as the forfeiture of all content in your Account.

 

Intellectual Property

1. You acknowledge and agree that the Service contains Pixelogic’s valuable intellectual property, including, without limitation, copyrightable material and trade secrets. All copyrightable aspects of the Service are © 2016, Pixelogic Media Partners LLC. All rights reserved.

2. As between Pixelogic and you, Pixelogic retains all right, title, and interest in and to the Service. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Service or any of Pixelogic’s rights or interests therein or any other Pixelogic intellectual property, marks or brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest, whether registered or under common law, in and to the Service not expressly granted in these Terms of Service are reserved by Pixelogic. Absent prior, express written permission from Pixelogic, you shall not claim, file for, apply to register or otherwise acquire an interest in any copyrights, trademarks, patents or trade secrets for the Service.

3. All of your user generated content posted on the Service must comply with United States copyright law and the copyright laws of your jurisdiction.

4. You represent, warrant and agree that you have sufficient permissions, rights and/or licenses to any user generated content you post to or through the Service.

5. Pixelogic does not check your user generated content for violations of copyright or other rights. However, if you believe that any content has infringed upon your copyright rights, please provide Pixelogic with a notice of copyright infringement in compliance with § 512 of the Digital Millennium Copyright Act. Once Pixelogic receives a notice of copyright infringement in compliance with § 512, Pixelogic will act with commercial reasonableness to remove or disable access to the allegedly infringing content. Pixelogic will also make a good faith attempt to notify the Account owner or uploader of the allegedly infringing content. The Account owner or uploader may respond to Pixelogic with a counter-notification if they believe the content subject to a notice of copyright infringement was not infringing any intellectual property rights.

 

The notice of copyright infringement must be in compliance with § 512 of the Digital Millennium Copyright Act and must also contain the following:

 

1)The physical or electronic signature of a person authorized to act on behalf of the copyright owner;

2)Identification of the copyrighted work(s) alleged to have been infringed;

3)The location of the copyrighted work(s) on the Service;

4)Your contact information, such as an address, telephone, fax number, or email address;

5)A statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and

6)A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the copyright owner.

 

Conversely, if you are an Account owner and user that believes that content subject to a notice of copyright infringement is not actually infringing, you may submit a counter-notification. The counter-notification must contain the following:

1)Identification of the specific materials that have been removed from the Service;

2)Your contact information, such as an address, telephone, fax number, or email address;

3)A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of mistake or misidentification;

4)A statement that you consent to the jurisdiction of the federal district court in which your address is located or, if you are outside of the US, that you consent to the jurisdiction of the federal courts located in Los Angeles, California;

5)A statement that you will accept service of process from the notifying party; and

6)Your physical or electronic signature.

 

Notifications of copyright infringement and counter-notifications may be submitted to Pixelogic’s Copyright Agent: Traverse Legal, PLC, 810 Cottageview Drive, Suite G-20, Traverse City, Michigan 49684; with a copy via email to dmcaagent@traverselegal.com.

Confidentiality

1. You shall hold all information maintained by and made available through the Service, including, without limitation, proprietary information, including, without limitation, any information, processes, methodologies, research, copyrights, trade secrets, processes, data, inventions, techniques and products (actual or planned), technical information trade secrets, know-how, software, product, tools and technology, information, customer lists, financial information, sales, marketing, business plans, personally identifiable information, work product and any and all content, in complete confidence and shall (i) not disclose or otherwise permit any third person or entity access the Service without the prior written consent of Pixelogic; and (ii) not use or authorize or permit any third person to use the Service commercially, for the purpose of developing or improving the subject matter thereof or by any other means whatsoever other than expressly set out in these Terms of Service.

2. You further agree to hold in confidence and not to discuss with or disclose to any third party, including, without limitation, in the media or by way of the World Wide Web or other communication medium, including through blogging, social media, YouTube, Facebook, Twitter, Instagram, or other similar communication vehicles, any information or materials obtained or learned as a result of your accessing and/or using the Service, including, without limitation, any information concerning the screenplay, scripts, characters, themes, plots, story, story elements or representations as well as the methods of production, technologies, tools or any other information made available to you via the Service. Upon termination of the Service, you shall destroy and not retain in any form any content, documents or materials or copies containing any information from the Service.

3. You recognize and acknowledge that irreparable injury or damage shall result to the business of Pixelogic in the event of a breach or threatened breach by you of the terms and conditions of this section. Therefore, you agree that Pixelogic shall, in addition to any and all other rights and remedies that may be available to it, be entitled to an injunction restraining you from engaging in any activity constituting such breach or threatened breach (without any requirement to post bond). Nothing contained herein shall be construed as prohibiting Pixelogic from pursuing any other remedies available to Pixelogic at law or in equity for such breach or threatened breach.

4. You agree that your confidentiality obligation to Pixelogic will survive the termination or failure of these Terms of Service and your use of the Service.

 

Prohibited Conduct

1. You acknowledge and agree not to (i) copy, perform, distribute, modify, adapt, alter, translate, or create derivative works from the Service, including Pixelogic’s software, tools and technology; (ii) merge the Service with other software; (iii) sublicense, lease, rent, sell, or loan the Service to any third party; (iv) reverse engineer, decompile, disassemble, frame, emulate, clone, circumvent, or otherwise attempt to derive the code of the Service; or (v) otherwise use the Service except as expressly allowed in these Terms of Service.

2. You shall not use the Service to provide commercial services to third parties, absent separate written agreement signed by You and Pixelogic.

3. By using the Service, you agree that you will not use any devices, software or automated programs such as spiders, crawlers or robots to systematically index, aggregate, download, harvest or re-publish any of its content or information.

4. You shall not use the Service to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages or actions in violation of applicable law.

5. You shall not upload to, or transmit from, the Service any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component.

6. You acknowledge and agree that all trademarks, trade names, service marks, design marks, and logo marks contained within the Service are the owned or licensed property of Pixelogic or the applicable owner. You are hereby prohibited from using the trademarks, trade names, service marks, design marks, and logo marks of Pixelogic, or any colorable imitation thereof that is likely to cause confusion, without the prior written consent of Pixelogic.

7. You shall comply with all applicable export and import control laws and regulations in its use of the Service and, in particular, you shall not export or re-export the Service without all required United States and foreign government licenses. You understand that access and use of the Service from outside the United States may constitute export of technology and technical data that may implicate export regulations and/or require export license, all of which shall be your sole responsibility.

8. You shall not access the Service in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the same.

9. You shall not use the Service in any way that violates any local, state, federal or law of other nations.

10. You shall not authorize, permit, or encourage any third party to do any of the above.

 

Pixelogic may identify you and provide your contact information if requested by a government or law enforcement body or as a result of a subpoena or other legal action, including any violation of these Terms of Service, and Pixelogic shall not be liable for damages or results connected therewith. You expressly agree not to bring any action or claim against Pixelogic for such disclosure.

 

Warranty Disclaimer

PIXELOGIC DOES NOT WARRANT THAT THE (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER CONTENT OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

 

PIXELOGIC DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, TITLE, FUNCTIONALITY AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SERVICE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN.

 

Limitation of Liability

PIXELOGIC SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY CONTENT OR DATA, EVEN IF PIXELOGIC HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF WHICH MAY RESULT FROM THE USE OR INABILITY TO USE THE SERVICE, THE COST TO PROCURE A SUBSTITUTE SERVICE, UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR DATA AND ANY LOSS OR CORRUPTION THEREOF OR STATEMENTS OF CONDUCT OF ANY THIRD PARTY. PIXELOGIC DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR IN, OMISSION OF, INTERRUPTION OF, DELETION OF, DEFECT IN, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY CONTENT OR DATA OR YOUR BUSINESS. YOU BEAR THE SOLE RESPONSIBILITY TO PROTECT AND BACKUP YOUR CONTENT AND DATA, NETWORK, HARDWARE SYSTEMS, SERVERS, SOFTWARE, COMPUTERS, OPERATING SYSTEMS, AND SECURITY SYSTEMS. UNDER NO CIRCUMSTANCES SHALL PIXELOGIC’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED ONE HUNDRED UNITED STATES DOLLARS. YOU ACKNOWLEDGE THAT THIS AMOUNT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS OF SERVICE AND THAT PIXELOGIC WOULD NOT ENTER INTO THESE TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE PARTIES AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF. YOU FURTHER AGREE THAT YOU MAY ONLY PURSUE A CAUSE OF ACTION IN YOUR INDIVIDUAL CAPACITY AND NOT A MEMBER OF A CLASS. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

Indemnification

You shall defend, indemnify and hold harmless Pixelogic, its members, officers, directors, contractors, agents and employees, from any and all claims or causes of action arising out of use of or related to the Service, and pay any and all damages and expenses (including but not limited to reasonable attorneys’ fees incurred by Pixelogic) in connection therewith. Pixelogic reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with Pixelogic in asserting any available defenses. You agree that your obligation to defend, indemnify, and hold harmless Pixelogic will survive the termination or failure of these Terms of Service and your use of the Service.

 

Miscellaneous Terms and Conditions

1. These Terms of Service constitute the entire agreement between the parties relating to the subject matter of these Terms of Service and hereby supersede all prior agreements, statements or representations. Notwithstanding the above, these Terms of Service shall not supersede any existing or future written agreement entered into by Pixelogic and you (or your organization), the terms and conditions to which you (or your organization) shall be subject. In the event of a conflict between these Terms of Service and any such written agreement, the terms of such written agreement between Pixelogic and you (or your organization) control.

2. These Terms of Service will be governed by and interpreted in accordance with the laws of the State of California and the federal law of the United States of America, without regard to the conflicts of laws rules thereof.

3. BOTH parties agree that any and all claims or controversies whatsoever (whether arising in tort or contract and whether arising under statute or common law) brought by either of the Parties hereto, arising out of or in any way relating to these terms of service will be submitted to binding arbitration in Los Angeles County, California, before a sole arbitrator selected from Judicial Arbitration and Mediation Services, Inc., or its successor (“JAMS”), pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. If JAMS is no longer able to supply the arbitrator, such arbitrator will be selected from the American Arbitration Association, and such arbitration will be conducted in accordance with the provisions of California Code of Civil Procedure §§ 1280 et seq. as the exclusive forum for the resolution of such dispute. The arbitrator will follow any applicable federal law and California state law (with respect to all matters of substantive law) in rendering an award. At the conclusion of the arbitration, the Arbitrator will issue a written decision that sets forth the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or relief granted by the Arbitrator hereunder will be final and binding on the Parties hereto and may be enforced by any court of competent jurisdiction. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE HEREBY WAIVING ANY RIGHTS TO TRIAL BY JURY. The Parties further agree that in any proceeding to enforce the terms of these terms of service, the prevailing Party will be entitled to its reasonable attorneys’ fees and costs, including, without limitation, the costs of the arbitrator, the arbitration proceeding and any proceeding in court to confirm or to vacate an arbitration award, incurred by it in connection with resolution of the dispute in addition to any other relief granted.

4. No waiver of rights under these Terms of Service by either party will be recognized unless made in writing and signed by the party to be charged.

5. These Terms of Service are solely between Pixelogic and you and will not confer any rights or remedies upon any third party, including third party beneficiaries.

6. You agree that Pixelogic may assign these Terms of Service and its rights or obligations hereunder in the event Pixelogic or any portion of its business is the subject of a merger, sale of assets, change of control, or other transfer by operation of law, without any prior written consent from you.

7. Pixelogic shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Pixelogic’s reasonable control, including the elements; fire; flood; severe weather (drought, hurricane and tropical storm, unforeseen weather conditions that are more severe than are normally experienced in any relevant country); earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war (declared or undeclared); acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; major cyber-attack; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts; or any other similar occurrence.

8. A finding that any term or provision of these Terms of Service is invalid or unenforceable will not affect the validity or enforceability of these Terms of Service. Any term or provision of these Terms of Service that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.