This Online Services Agreement (“Agreement”) entered into as of the date you click “Accept Terms and Conditions” (“Effective Date”), by and between Pixvana, Inc. (“Pixvana”, “we”, “us” as applicable), and yourself or the company that you represent (“you”) governs your use of our Services (as defined below).
Pixvana’s offers an online interactive platform and solution that provides tools for creating, editing and rendering content produced by its customers, stores its customers’ content and provides customers the functionality of sharing such content with its viewers. You may access all or some of this functionality by subscribing to those aspects of Pixvana’s online platform that you desire to use.
If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “you” and “your” will refer to that company or other legal entity.
ARBITRATION NOTICE: UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THIS AGREEMENT BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE “ARBITRATION” SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “ARBITRATION “SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND Pixvana WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1.1 App means Pixvana’s mobile application.
1.2 Authorized User means you if you are an individual or an employee or contractor of you if you are an entity. Authorized Users: (i) must register online with Pixvana and create user credentials to access the Subscription Services; and (ii) will be limited to the number of Authorized Users included with the subscription you purchase.
1.3 Authorized Viewer means the individual(s) or entity(ies) that: (i) you have authorized through your account to view Your Content using the Service and (ii) have registered online with Pixvana to receive access to such Content.
1.4 Content means text, graphics, images, music, software, audio, video, works of authorship of any kind (including virtual reality videos and graphics), and information or other materials that that are posted, generated, provided or otherwise made available through the Services. Content includes, without limitation, Your Content.
1.5 Fees means the fees to be paid by you for the use of the Subscription Services as set forth on the Subscription Page and agreed to by during the process of subscribing to the Subscription Services.
1.6 Headset means a wearable device that you provide to the Authorized Viewers to enable them to access Your Content.
1.7 Implementation Services means the services performed by Pixvana to configure and rollout the Services to you and Authorized Users as described in the Subscription Page.
1.8 Intellectual Property Rights means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.9 Software means any Pixvana or third-party software used by Pixvana to provide the Services.
1.10 Services means the Site, the App, and the Subscription Services.
1.11 Subscription Services means those portions of the Services that you select and to which you subscribe during the signup process.
1.12 Subscription Term means the term of this Agreement as defined in Section 12.1.
1.13 Site means Pixvana’s website located at spin.pixvana.com.
1.14 Subscription Page means the page on the Site that describes the level of Subscription Services, number of Authorized Users, Fees and other details applicable to your use of the Subscription Services.
1.15 Term means the term of this Agreement as defined in Section 12.1.
1.16 Your Content means any Content that is submitted to the Services through your account.
2.1 Services. Subject to your compliance with the terms and conditions of this Agreement, Pixvana will provide you the Services during the Subscription Term. You may access and use the Services solely for your internal business purposes and such access and use is expressly limited to the number of Authorized Users for which you have paid Fees in accordance with the Subscription Page. The Subscription and Billing Page(s) are a part of this Agreement and is incorporated herein by reference.
2.2 Restrictions. You will not attempt to interfere with or disrupt the Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). You will not allow access to or use of the Services by anyone other than Authorized Users. You will not: (a) copy, modify, distribute, decompile, disassemble or reverse engineer any portion of the Services or Software; (b) rent, lease, or provide access to the Services on a time-share or service bureau basis; or (c) transfer any of its rights hereunder.
2.3 Acceptable Use Policies. You acknowledge and agree that Pixvana does not monitor or police communications or data transmitted through the Services and that Pixvana will not be responsible for the content of any such communications or transmissions. You will use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You will not use the Services to transmit any bulk unsolicited commercial communications. You will keep confidential and not disclose to any third parties, and will ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers, and account profiles. You acknowledge that the Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. You will not use the Services for such purposes or under such circumstances. In addition, you agree not to do any of the following:
3.1 Rights in Your Content Granted by You. By making Your Content available through the Services you hereby grant to Pixvana a non-exclusive, transferable, sub-licenseable, worldwide, royalty-free license to reproduce, modify, create derivative works based upon, publicly display, publicly perform, distribute and use Your Content solely in connection with operating and providing the Services and making Your Content available to you and your Authorized Users and Authorized Viewers.
3.2 Representations and Warranties with respect to Your Content. You are solely responsible for all Your Content. You represent and warrant that: (i) you own all Your Content or you have all rights that are necessary to grant us the license rights in Your Content under this Agreement; (ii) neither Your Content, nor your use and provision of Your Content to be made available through the Services, nor any use of Your Content by Pixvana on or through the Services will result in the violation of any applicable law or regulation or infringe, misappropriate, or violate the rights of any third party, including but not limited to any third-party’s Intellectual Property Rights, or rights of publicity or privacy.
3.3 Removal of Your Content, Data Maintenance and Backup Procedures. You can remove Your Content by specifically deleting it. However, in certain instances, some of Your Content may not be completely removed and copies of Your Content may continue to exist on the Services for a period of up to 90 days for billing and auditing purposes. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of Your Content.
Pixvana will follow its standard archival procedures for Your Content. Notwithstanding the foregoing, it is your sole responsibility to create and maintain backup copies of Your Content on a regular basis, and Pixvana does not guarantee that Your Content will be secure and/or available during or after the Subscription Term.
YOU ARE SOLELY RESPONSIBLE FOR CREATING AND MAINTAINING BACKUP COPIES OF YOUR CONTENT AT YOUR SOLE COST AND EXPENSE. YOU MAINTAIN RESPONSIBILITY AND LIABILITY FOR ANY LOSSES OR DAMAGES YOU INCUR FOR FAILURE TO MAINTAIN BACKUP COPIES OF YOUR CONTENT. PIXVANA IS NOT LIABLE TO YOU, AND DISCLAIMS ANY AND ALL LIABILITY, FOR ANY DAMAGES OR LOSSES THAT RESULT FROM THE LOSS OR CORRUPTION OF YOUR CONTENT.
3.4 Rights in Content Granted by Pixvana Subject to your compliance with this Agreement, Pixvana grants you a limited, non-exclusive, non-transferable, non-sublicensable license to download, view, copy, display and print Content (excluding Content submitted by Pixvana’s other customers) solely in connection with your use of the Services as expressly authorized herein and solely for your internal purposes.
3.5 Restrictions on Your Content You agree not to post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates any Intellectual Property Rights or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, or pornographic; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with this Agreement, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Services, and consult and cooperate with law enforcement authorities to prosecute users who violate the law.
3.6 DMCA/Copyright Policy Pixvana respects copyright law and expects its users to do the same. It is Pixvana’s policy to terminate in appropriate circumstances users and/or customers who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Pixvana’s Copyright Policy at www.pixvana.com/legal for further information.
4.1 Rights in App Granted by Pixvana Subject to your compliance with this Agreement, Pixvana grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in this Agreement, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Pixvana reserves all rights in and to the App not expressly granted to you under this Agreement.
5.1 Cooperation and Assistance. As a condition to Pixvana’s obligations hereunder, you will at all times: (a) provide Pixvana with good faith cooperation and access to such information as may be reasonably required by Pixvana in order to provide access to the Services; and (b) it is your sole responsibility to provide headsets or other devices to colleagues and clients who wish to view Content provided through the Service.
5.2 Marketing Support. You will comply with reasonable requests of Pixvana to support public relations efforts pertaining to the Services, which efforts may include: (a) a news release highlighting your purchase or use of the Services; (b) participation in targeted press interviews highlighting benefits of implementing the Services; and (c) participation in customer case studies developed by Pixvana and used on the Site and other collateral. You grant to Pixvana a non-exclusive, non-transferable (except as permitted under Section 15.7), limited right to use the your name, trademarks, and logos (collectively, the “Your Marks”) in the production of marketing materials, provided that such use is in accordance with the trademark and logo use guidelines that you provide to Pixvana.
5.3 Enforcement. You will ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with your obligations set forth in Sections 2.2 and 2.3. You will promptly notify Pixvana of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Pixvana with respect to: (a) investigation by Pixvana of any suspected or alleged violation of this Agreement and (b) any action by Pixvana to enforce the terms and conditions of this Agreement. Pixvana may suspend or terminate any Authorized User’s access to the Services upon notice to you in the event that Pixvana reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. You will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
5.4 Telecommunications and Internet Services. You acknowledge and agree that your and your Authorized Users’ use of the Services is dependent upon access to telecommunications and Internet services. You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Pixvana will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
6.1 Fees and Expenses. In consideration for Pixvana providing the Services, you will pay to Pixvana the Fees and expenses set forth on the Billing Page.
6.2 Invoices; Payment; Late Payment. Pixvana will charge you monthly on the last day of each month for all Fees, expenses and applicable Taxes (as defined in Section 6.3) (collectively, the “Amounts”), and including any related interest and/or penalties), due in that month. All payments will be due within 15 days from the date of Pixvana’s first charge in U.S. dollars, free of any currency controls or other restrictions, by credit card. If you are making payment by credit card, you authorize Pixvana or its third party payment processing service providers to charge your credit card for the Amounts as specified on the Subscription Page. If Pixvana has not received payment within five (15) days after the due date, Pixvana at its sole discretion may terminate your access to the Services and Your Content. If there is a dispute of charges or required collection, you will reimburse Pixvana for the reasonable costs of collection, including reasonable fees and attorney expenses.
6.3 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Pixvana’s net income.
7. Ownership. As between Pixvana and you, the Services, Software (including all copies of the Software) and Content (except Your Content), and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Pixvana and/or its licensors. As between Pixvana and you, you and/or your licensors exclusively own all right, title and interest in and to Your Content including all Intellectual Property Rights therein; and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit Your Content. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
8. CONFIDENTIALITY “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials relating to Pixvana including without limitation, the Services and any Software whether in source or executable code, documentation, nonpublic financial information, Fees, business plans, techniques, methods, and processes. Confidential Information will not include information that: (a) is or becomes publicly known through no act or omission by you; (b) was in your lawful possession prior to the disclosure; (c) is rightfully disclosed to you by a third party without restriction on disclosure; or (d) is independently developed by you, which independent development can be shown by written evidence. You will not make the Confidential Information available to any third party or use it for any purposes except as necessary to use the Service as expressly authorized herein. Notwithstanding the foregoing, you may disclose Confidential Information as required by any governmental agency, provided that before disclosing such information you will provide Pixvana with sufficient advance notice of the agency’s request for the information to enable Pixvana to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
THE SERVICES ARE PROVIDED “AS IS” AND PIXVANA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE SERVICES. WITHOUT LIMITING THE FOREGOING, PIXVANA DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PIXVANA FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY, QUALITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PIXVANA FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PIXVANA OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
11.1 Indemnification by You. You will defend (or settle), indemnify and hold harmless Pixvana, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) is based on or resulting from your or an Authorized User’s use of the Services (other than any claim for which Pixvana is responsible under Section 11.2); (ii) you or any Authorized User has used the Services in a manner that violates Sections 2.2 or 2.3 of this Agreement, or (iii) Your Content or use of Your Content by you or by Pixvana as contemplated herein, infringes any third party Intellectual Property Rights or other proprietary rights, or the rights of privacy or publicity of a third party. Your obligations under this Section 11.1 are contingent upon: (a) Pixvana providing you with notice of such claim; (b) Pixvana providing reasonable cooperation, at your expense, in the defense and settlement of such claim; and (c) you having sole authority to defend or settle such claim. You will not settle any claim described in this Section in a manner that admits guilt on behalf of Pixvana or imposes any restriction or obligation on Pixvana.
11.2 Indemnification by Pixvana. Pixvana will defend (or settle) any suit or action brought against you to the extent that it is based upon a claim that the Services infringe or misappropriate the Intellectual Property Rights of any third party of which Pixvana has knowledge, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against you. Pixvana’s obligations under this Section 11.2 are contingent upon: (a) you providing Pixvana with prompt written notice of such claim; (b) you providing reasonable cooperation to Pixvana, at Pixvana’s expense, in the defense and settlement of such claim; and (c) Pixvana having sole authority to defend or settle such claim. In the event that Pixvana’s right to provide the Services is enjoined or in Pixvana’s reasonable opinion is likely to be enjoined, Pixvana may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement and provide you a refund of the Fees proportionate to the length of time the Services were unavailable to you because of such injunction. THE FOREGOING STATES THE ENTIRE OBLIGATION OF PIXVANA AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES. Pixvana will have no liability under this Section 11.2 to the extent that any third-party claims described herein are based on use of the Services in a manner that violates this Agreement or the instructions given to you by Pixvana.
12.1 Term. This Agreement will commence on the Effective Date and will continue for the period of [one (1) year] thereafter (the “Initial Term”), unless terminated earlier as provided in this Agreement. [This Agreement will automatically renew for subsequent one-year periods, unless either party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively the “Term”.]
12.2 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment will be five (5) business days.
12.3 Termination for Insolvency. Subject to Title 11 of the United States Code, if you become or are declared insolvent or bankrupt, are the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or make an assignment for the benefit of any creditor, then Pixvana may terminate this Agreement upon thirty (30) days’ written notice.
12.4 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, your and Authorized Users’ right to access and use the Services will immediately terminate, you and your Authorized Users will immediately cease all use of the Services, and will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Pixvana. Pixvana may destroy or otherwise dispose of any of Your Content in its possession unless Pixvana receives, no later than thirty (30) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery of the then-most recent back-up of Your Content. Pixvana will use all reasonable efforts to deliver the back-up to you within thirty (30) days of its receipt of such a written request. You will pay all reasonable expenses incurred by Pixvana in returning Your Content to you. Also upon expiration or termination of this Agreement, Pixvana will cease use of the Your Marks; provided, however, that (a) Pixvana will have a reasonable time to remove Your Marks from promotional materials, (b) Pixvana will be entitled to exhaust materials printed during the Term that include Your Marks, and (c) Pixvana will not be required to remove any such printed materials from circulation.
12.5 Survival. The rights and obligations contained in Sections 6 (Fees, Expenses and Taxes), 7 (Ownership), 8 (Confidentiality), 9 (Warranty Disclaimer), 10 (Links to Third Party Websites or Resources), 11 (Indemnification), 12.4 (Rights and Obligations Upon Expiration or Termination), 12.5 (Survival), 13 (Limitation of Liability), 14 (Dispute Resolution), and 15 (General) will survive any expiration or termination of this Agreement.
13. LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, AND LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2 OR 3.3 OR SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY IINCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
Notwithstanding any other provisions of this Agreement, in no event will Pixvana’s aggregate liability to You and any Third party in connection with this Agreement OR YOUr ACCESS TO AND USE OF THE SERVICES exceed the total monthly SUBSCRIPTION fees paid by You IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, regardless of the form OR THEORY of THE claim or action.
14.1 Governing Law. This Agreement and any action related thereto will be governed by the laws of the State of Washington without regard to its conflict of laws provisions.
14.2 Agreement to Arbitrate. You and Pixvana agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Pixvana with written notice of your desire to do so by email or regular mail 3601 Stone Way N, Seattle WA 98103 within thirty (30) days following the date you first agree to this Agreement (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Pixvana with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Pixvana with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Pixvana with an Arbitration Opt-out Notice, you acknowledge and agree that you and Pixvana are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Pixvana otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.
14.3 Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
14.4 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
14.5 Arbitration Location and Procedure. Unless you and Pixvana otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Pixvana submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
14.6 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Pixvana will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
14.7 Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Pixvana will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
14.8 Changes. Notwithstanding any other provision in the Agreement, if Pixvana changes this “Dispute Resolution” section after the date you first accepted this Agreement (or accepted any subsequent changes to This Agreement), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the date of Pixvana’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Pixvana in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted this Agreement (or accepted any subsequent changes to This Agreement).
15.1 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
15.2 Notices. All notices or approvals required or permitted under this Agreement will be sent to the addresses provided by either party to the other, and will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt.
15.3 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
15.4 Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
15.5 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
15.6 Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
15.7 Assignment/Successors. You may not assign or transfer this Agreement, in whole or in part, without Pixvana’s written consent. Pixvana may freely assign this Agreement. Any assignment in violation of this provision will be null. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
15.8 Entire Agreement. This Agreement together with the Subscription Page constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
Last updated: April 11, 2017
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When you submit personal information to Pixvana through the Site, you understand and agree that this information may be transferred and stored across national boundaries.
Pixvana collects your information in order to record and support your participation in the activities you select. When you register a product, for example, the information is used to register your rights, if any, to technical support or other benefits that may be made available to registered users. As another example, if you enter a contest, information is collected to qualify the entry and to contact you regarding the contest or prize awards. Your personal information is also used to track customer preferences and keep you informed about product changes, special offers, and other services of Pixvana as part of our newsletter service.
There are other instances in which Pixvana may divulge your personal information, such as where required by law, regulation, or litigation. We may also disclose information about you if we determine that such disclosure should be made for reasons of national security, law enforcement, or other issues of public importance.
The non-personal information that Pixvana collects consists of usage statistics and other analytics collected anonymously through SPIN services and downloadable products. For example, Pixvana may gather anonymous statistics about how particular products are being used through usage statistics features. Our purpose is to understand which parts of a product are used most, and which parts aren’t working as expected. The statistics collection does not collect any personal information, or look at anything that isn’t related to that product.
Usage statistics collection happens in the background and doesn’t require you to do a thing. Without any extra effort, you are helping us to build features and define what a product will do in future versions.
The personal information that you provide in connection with registering yourself as a user of Pixvana software products or services, testing a demonstration version of Pixvana products, or registering a Pixvana product is classified as Registration Information. Registration Information is only available to authorized Pixvana employees or contractors and are not publicly distributed.
Please note that any information you post to a public bulletin board or chat room, such as the Pixvana Support Forum, is available to all persons accessing the site.
Last Updated: April 11, 2017
Pixvana, Inc. (“Pixvana”) respects the intellectual property rights of others and expects its users to do the same. It is Pixvana’s policy to terminate in appropriate circumstances and at its discretion account holders or subscribers who repeatedly infringe or who are repeatedly charged with infringing the rights of copyright holders
In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website, Pixvana will respond expeditiously to claims of copyright infringement committed using Pixvana’s online services offered through its website located at the Terms of Service that are reported to Pixvana’s Designated Copyright Agent, identified in the sample notice below.
If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Services by completing the following DMCA Notice of Alleged Infringement and delivering it to Pixvana’s Designated Copyright Agent. Upon receipt of the Notice as described below, Pixvana will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Services.
c/o Pixvana, Inc.
3621 Stone Way North
Seattle, WA 98103