Terms of service

1. THIS SOFTWARE SERVICES AGREEMENT

This SOFTWARE SERVICES AGREEMENT (the "Agreement") is entered into and effective as of the day you "AGREE" (the "Effective Date") by and between PixelPerfect and you the company or entity you represent ("Client" or "You").

PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING AN "AGREE" OR SIMILAR BUTTON. THIS AGREEMENT COVERS YOUR USE OF THE SERVICE (AS DESCRIBED BELOW), IS A LEGAL AGREEMENT BETWEEN PIXELPERFECT AND YOU AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN "AGREE" OR SIMILAR BUTTON OR BY USING THE SOFTWARE SERVICES, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU – ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY PIXELPERFECT AND WILL NOT BE A PART OF THIS AGREEMENT. PixelPerfect HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME. PixelPerfect HAS SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.

2. Terms of Service.

Customer acknowledges and agrees to the following terms of service, which together with the terms of the PixelPerfect Privacy Policy entered into between Customer and PixelPerfect, shall govern Customer's access and use of the Service (the "Agreement"). In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new services subsequently provided to the Customer will be subject to this Agreement.

2.1 Customer Must Have Internet Access.

Whether or not high-speed internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" software that supports protocols used by PixelPerfect, including Secure Socket Layer (SSL) protocol or other protocols accepted by PixelPerfect, and to follow login procedures for services that support such protocols. PixelPerfect is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data, including Customer Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by PixelPerfect. PixelPerfect assumes no responsibility for the reliability or performance of any connections as described in this section.

2.2 Client's Obligations:

The restrictions Client will: (i) be responsible for it and its Authorized Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to acquisition of the Client Data; (iii) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, and that Client will responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, or create derivative works or otherwise attempt to derive the Source code of the Software Services; (vi) not remove any proprietary notices or labels on the Software Services; (vii) not license the Software Services if Client (or any of its Authorized Users) is a direct competitor of PixelPerfect, or access the Software Services for purposes of monitoring their availability, performance or functionality, or for any benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third-party privacy rights; (ix) not use the Software Services to store or transmit malicious code; or (x) interfere with or disrupt the integrity or performance of the Software Services. | Also See 2.5 Non-Compete Clause|

2.3 Users; Passwords; Access; And Notification.

Customer is responsible to create and to assign unique passwords and user names . User logins are for designated Users and cannot be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User's passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registrations, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer's account information. PixelPerfect will act as though any Electronic Communications it receives under Customer's passwords and/or user number will have been sent by Customer. Customer acknowledges that it is Customer's responsibility to prevent unauthorized access to or use of the Service and shall promptly notify PixelPerfect of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User's password or name and/or Service account numbers.

2.4 Customer's Lawful Conduct.

The Service allows Customer to send Electronic Communications directly to PixelPerfect and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to data privacy, international communications, and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry (PCI) Data Security Standards. Customer represents and warrants that it has the authority to enter into this Agreement, Customer shall comply with the applicable laws, rules and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance.

Without limiting the foregoing: (i) Customer represents and warrants to PixelPerfect that (A) all information received from marketing activities is correct, (B) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (C) Customer shall comply with all applicable laws relating to the transmission of technical data exported from the United States and the country in which its Users are located; (ii) Customer shall not upload to, or transmit from, the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interface that is or will be provided by PixelPerfect. Customer shall not access the Service by using any automated tool or "bot". There may be aspects of the Service which include log-in information, user names, passwords, and/or access codes. Customer will not in any way express or imply that any opinion contained is PixelPerfect's opinion. Customer's Affiliates are explicitly not authorized to use the Software Services, unless authorized by PixelPerfect and subject to additional terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer's Affiliates. Any action or breach by any of such contractors, agents, and Affiliates with respect to PixelPerfect's IP or this Agreement shall be considered an action of theirs. It follows that Customer may have as to why Customer should not be liable for Customer's contractors', agents' or Affiliates' acts, omissions and noncompliance with this Agreement.

2.5 Non-Compete Clause.

You represent and warrant that you or any of your affiliate companies are not a competitor of PixelPerfect and you are not using the Service and/or Licensed Program to engage in, or permit others to engage in competition with PixelPerfect. You represent and warrant that: (i) you examined the Service and/or Licensed Program and found it suitable to your needs; (ii) you are familiar and acknowledge the capabilities and limitations of the Service and/or Licensed Program; (iii) you have all permissions and licenses, including under any applicable corporate policies, confidentiality and non-competitive agreements, to upload customer data to the Service and use it through the Service. Customer agrees that they can not purchase a competitive software with the PixelPerfect Systems for the same set of tasks during the duration of this Agreement and for five years thereafter. Violation of this clause is grounds for immediate account termination by PixelPerfect with no liability on the part of PixelPerfect; PixelPerfect reserves all rights related to any damages arising from this violation. If the customer recommends and introduces a client to a competing service, this also constitutes a violation. Customer understands and agrees that during the term of the Agreement, and for five (5) years after the last date of Customer using the Application or any service made available by PixelPerfect, Customer will not affiliate with or engage in any other advertising activity, software service or competing activity. A "Competing Service" is defined as any product or service that provides a creative ad, or campaign creation software system with analytics and automation rules for optimization for content discovery networks such as Outbrain, Taboola, Revcontent, ContentAD, MGiD or other content discovery networks (distributing in the form of Native Ads as defined by the IAB). Customer understands and acknowledges that violation of this clause will be grounds for immediate termination of this Agreement without any further notice and any damage or breach of this Agreement or PixelPerfect shall not resell, assign, or transfer any of your rights under this Agreement, and if you attempt to resell, assign, or transfer its rights, PixelPerfect may immediately terminate this agreement without liability to PixelPerfect.

2.6 Transmission of Data.

Customer understands that the technical processing and transmission of Customer's Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to PixelPerfect's interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Electronic Communications sent over the Internet may be accessed by unauthorized third parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Customer agrees that it is responsible for monitoring and protecting backup of all Customer Data and acknowledges that failure to do so may allow for the corruption or loss of Customer Data. Customer understands that PixelPerfect will have the ability to intercept, collect and track technical and related information about Customer and Customer's use of the Software Services, including Customer's internal protocol address, the hardware and software used by Customer and such information related to the Customer's use of the Software Services. Customer agrees to each of the obligations and uses described in this section, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by PixelPerfect, its affiliated entities, or its agents, and research and development. In the event that PixelPerfect is required pursuant to court order or other order or mandate of a court or other competent jurisdiction to do so as permitted, PixelPerfect shall take all commercially reasonable steps to provide the Customer with prompt notice of any relevant order or basis for disclosure so as to allow PixelPerfect is not responsible for any Electronic Communications and/or Customer Data which are released, transferred, distributed or stored during the transmission of any data whatsoever across networks not owned and/or operated by PixelPerfect, including, but not limited to, the Internet and Customer's local network.

2.7 Service Level.

During the Term, the PixelPerfect Service will meet the service level specified in the "Service Level Commitment" listed on Schedule 1 hereto, which is hereby incorporated by reference. If the applicable Service fails to achieve the service level, then Customer will be entitled, at its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service's system logs and other records shall be used for calculating any service level events.

2.8 PixelPerfect Support.

As part of the Service, PixelPerfect will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Customer acknowledges that PixelPerfect has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of PixelPerfect may substantially limit Customer's ability to successfully utilize the Service. Customer recognizes the power of using the Service.

2.9 Security.

PixelPerfect shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.

2.10 Confidentiality.

For purposes of this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) Software Service and shall include the terms of this Agreement, Customer Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding improvements and any information it exchanges in confidence. Confidential Information does not include any information that the Receiving Party can demonstrate by competent written evidence: (A) is known publicly; (B) is generally known in the Industry before disclosure; (C) has become known publicly, without fault of the Receiving Party; (K) is received by the Receiving Party from a third party who is not bound by non-disclosure obligations; or (D) was independently developed by the Receiving Party. Each party agrees (i) to the Receiving Party; or (ii) to aggregate data regarding use of PixelPerfect products and services that does not contain any personally identifiable or Customer-specific information. Each party agrees: (i) to keep confidential all Confidential Information; and (ii) not to disclose Confidential Information to any third party unless required to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information), (which including but not limited to inputting credit card data are in the fields designated for such data in the Service) and to make Confidential Information available to authorized persons only as a "need-to-know" basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors and service providers who have signed a written non-disclosure agreement containing terms at least as protective as those set forth herein and who agree to use the Confidential Information solely in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulatory agency. If disclosure is required, the party must promptly notify the other party of this requirement and reasonably cooperate to seek a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party.

2.11 Ownership of Customer Data.

Between PixelPerfect and Customer, all title and intellectual property rights to the Customer Data is owned exclusively by Customer. It is also noted that PixelPerfect has the authority to use Customer's Data in the aggregate set for internal purposes only. Customer acknowledges and agrees that in connection with Service, PixelPerfect or part of its standard Service offering makes daily backup copies of the Customer Data in Customer's account and stores and maintains such data for a period of time consistent with PixelPerfect's standard business practices, which standard shall be no less than one year.

2.12 PixelPerfect Intellectual Property Rights.

Unless otherwise stated, Customer shall not infer that the use of the word "purchase" in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by PixelPerfect or its licensors. Except as described in this Agreement, the Service is provided to Customer on a subscription access basis. Customer shall have only those rights to use and access the Service as expressly described in these intellectual property rights herein. In addition, PixelPerfect shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by PixelPerfect. The trademarks, service marks, and logos of the Software Service names are marks of PixelPerfect, respectively (the "PixelPerfect Marks"). Customer agrees not to display or use the PixelPerfect Marks in any manner without PixelPerfect's express prior written permission. The trademarks, logos and service marks displayed on the web service ("Marks") are the property of such third parties. Customer is or permitted to use those Marks without the prior written consent of such third party which may own the Mark.

3. Dispute Resolution.

Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall have thirty (30) days' written notice to the other party that describes the claim or dispute in sufficient detail to allow the other party to review the merits of the parties, authorized representatives of the parties shall meet (in order by telephone) at least once in a good faith attempt to resolve the perceived dispute.

4. General.

4.1 The Independence of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents PixelPerfect from entering into similar arrangements with or providing similar services to any other party, including, without (a) license, (b) reproduce, or (c) make any commercial use of, in any form whatsoever, and Customer is free to use any ideas, information, techniques, methodologies, forms, reports or results of any of the products or services provided by PixelPerfect hereunder in providing products or services to other customers and nothing in this Agreement operates to limit PixelPerfect to do so.

4.2 Third Party Services.

Customer may connect to a third party service with the Software Services (including services that may use any application programming interface (API) provided by PixelPerfect). The Client acknowledges that the third party service may access or use the customer's information. PixelPerfect will not be responsible for any act or omission of the third party, including such third party's use of the customer's information. The Client agrees to connect the third party service provider for any issues arising from the Client's use of the third-party service.

4.3 Compliance with Applicable Laws.

PixelPerfect provides its products and services subject to applicable intellectual property law and other laws of the United States and international laws and treaties, including intellectual property and export laws. Client agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to Client, and Client will use the Software Services in compliance with all applicable laws, rules and regulations, including but not limited to, all applicable laws and obligations and applicable restrictions concerning intellectual property rights. Client agrees that it shall abide by all applicable export control laws, rules and regulations applicable to its use of the Software Services.

4.4 Entire Agreement.

This Agreement constitutes the final, complete and exclusive agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether written, oral, or otherwise, between them relating to the subject matter hereof. Upon execution of this Agreement, the parties acknowledge and agree that PixelPerfect's published Website "Terms of Use", as the same may be modified by PixelPerfect from time to time in accordance therewith (provided that Client has been given notice of any such modification), will be incorporated into the Software Services Agreement and will not constitute a conflict with the Agreement. In the case of a conflict between a provision in this Agreement and a provision in such Website "Terms of Use", such conflicting provision in this Agreement controls. Any terms and conditions appearing on a purchase order or similar document issued by the Client do not apply to the Software Services, do not override or form part of this Agreement, and are void.

4.5 Waiver.

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach.

4.6 Severability.

The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected thereby. Parties consent to such court's substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.

5. Definitions.

"Affiliates" means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer. "Customer Data" means all electronic, non-voicemail data or information submitted by Customer or Users to the Service. "Order Form" means a PixelPerfect received notification or order form in the name of and executed by Customer or its Affiliate and accepted by PixelPerfect which specifies the Service and implementation services to be provided by PixelPerfect subject to the terms of this Agreement. "Service" or "Software Service" collectively, "PixelPerfect Software" means the web-based platform and the tools that run on the Service, the SaaS online business application suite (the "PixelPerfect Service(s)") as described in the applicable Help Documentation that is provided by PixelPerfect as part of its then-current standard Service offering, and any updates, modifications or new releases thereof, as well as associated technology, including but not excluding Third Party Applications and implementation services. "Third Party Applications" means online, Web-based applications or services and offline software products that are provided by parties other than PixelPerfect and that interoperate with the Service. "User" or "Users" means the Customer's employees or contractors for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by PixelPerfect at Customer's request). Users may be the individuals providing professional services and use the Service on behalf of Client.