TERMS OF SERVICE
Last updated: 04/11/2016
For best results, please submit images that meet Pixelz’s guidelines for resolution and file format. Pixelz works hard to make sure the edited images it returns to You are the quality our customers have come to expect from Pixelz. The returned image will be deemed accepted by You upon receipt, unless within seven (7) days You contact Pixelz though Your account page on Pixelz’s website and detail an error by Pixelz with respect to the image. Pixelz is committed to customer satisfaction and will work with You to correct any Pixelz error as determined in Pixelz’s sole discretion, including but not limited to re-performing its services to correct such an error. You will review any corrected image and accept or reject the same in accordance with this Section 1 (“Images”). This process shall repeat itself until the returned image is deemed accepted. Pixelz deletes from its system all images approximately thirty (30) days after their respective acceptance. Pixelz is not responsible for the quality of returned images if the image You originally submitted does not meet Pixelz’s then-current guidelines.
Pixelz returns the images to You via a public web address (e.g., URL). Although Pixelz utilizes means to make Your edited image available only to You, there are inherent security limitations in a public web address which Pixelz cannot and will not rectify and for which Pixelz will not be liable. You are able to retrieve your edited images by downloading them from Pixelz’s website, and in addition Pixelz may permit retrieval through an FTP server, API or other mechanism. Pixelz offers different service pricing based on different requested delivery dates. Pixelz prioritizes its orders based on requested delivery dates and recognizes that Pixelz will have satisfied and returning customers if it meets the requested delivery dates. Pixelz will use commercially reasonable efforts to deliver Your image within the time frame requested, but Pixelz does not guarantee that an order will meet its requested delivery date. If the actual date Pixelz returns Your edited image is in a different delivery tier from the price You paid (e.g., You paid for 24 hour service but Pixelz returned the image within 72 hours), You may contact Pixelz through your account page, detail the date ordered, the requested delivery date and the date actually delivered, and Pixelz will refund any difference as if You had requested the delivery date in which Pixelz actually delivered the edited image. In rare instances, particularly large orders may surpass Pixelz’s processing capacity for a requested delivery date, in which case Pixelz will contact You to determine how best to restructure Your order.
The price of the service ordered shall be set forth in Pixelz’s price list then in effect when Pixelz accepts Your order. Pixelz reserves the right to change its price list without prior notice. All payments shall be made in United States Dollars. Pixelz will process your payment upon submission of Your order and will accept Your order upon verified payment. Pixelz may consider extending a line of credit to large volume, repeat customers on a case by case basis, in which circumstance Pixelz will invoice such customers on a monthly basis. You are responsible for paying any applicable taxes, duties or tariffs relating to your order, except taxes on Pixelz’s income. Notwithstanding the payment terms, all other terms of this Agreement apply to any free trial. Free trials are limited to product images only (e.g., no pet, person, logo or landscape images) and machine-like or automated submissions (e.g., multiple free trial requests from the same IP address) will not be accepted.
4. Rights to Use Image
You are solely responsible for the images you submit. Pixelz reviews submissions for inappropriate material and reserves the right in its sole discretion to reject any image for any reason or no reason; however, Pixelz’s acceptance of an image for processing should not be construed as a determination of Your rights to use the image. By submitting an image to Pixelz, You represent and warrant that You have the legal authority to enter into this Agreement, that you have the right to use any credit card(s) or other payment means used to initiate any transaction, that any images You submit to Pixelz do not contain any materials (such as malicious software code or viruses) that may harm Pixelz’s or its subcontractors’ property, and You hereby grant Pixelz a non-exclusive, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses including but not limited to Pixelz’s subcontractors) perpetual, irrevocable license under all intellectual property rights throughout the world (including but not limited to copyrights, trademarks, trade secret, moral, publicity and privacy rights) to reproduce, modify, edit, make derivate works from, distribute (through multiple tiers), publicly perform and display and otherwise use the image as reasonably necessary for Pixelz and its subcontractors to perform the services You requested hereunder. You agree to indemnify and hold harmless Pixelz, its subcontractors, licensors and affiliates and their directors, officers, shareholders, employees and agents from any and all claims, liabilities or expenses (including without limitation attorneys’ fees) that arise directly or indirectly from Your breach of this Agreement.
5. Disclaimer of Warranties
EXCEPT FOR THE PROCEDURE SET FORTH IN SECTION 1 (“IMAGES”), THE SERVICES ARE PROVIDED “AS IS”. NEITHER PIXELZ NOR ITS LICENSORS OR SUBCONTRACTORS MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES PROVIDED HEREUNDER. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MECHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
6. Limitation of Liability
IN NO EVENT WILL PIXELZ, ITS LICENSORS OR SUBCONTRACTORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, REVENUE, SAVINGS, BUSINESS, DATA OR GOODWILL, HOWEVER USED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE ON ANY THEORY OF LIABILITY, WHETHER OR NOT PIXELZ OR A LICENSOR OR SUBCONTRACTOR OF PIXELZ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, PIXELZ AND ITS LICENSORS AND SUBCONTRACTORS’ TOTAL LIABILITY TO YOU ARISING FROM OR IN RELATION TO THIS AGREEMENT OR PIXELZ OR ITS SUBCONTRACTORS’ PERFORMANCE OF THE SERVICES SHALL BE LIMITED TO THE TOTAL PAYMENTS TO PIXELZ FOR THE SERVICES PERFORMED ON THE RELEVANT IMAGE. IN NO EVENT WILL PIXELZ OR ITS LICENSORS OR SUBCONTRACTORS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY TO PERSONS OR TANGIBLE PROPERTY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU.
7. Basis of Bargain
The parties acknowledge that Pixelz has set its prices in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
This Agreement shall be effective from the date You submit an image to Pixelz until the date the returned image is deemed accepted, provided that Pixelz may terminate this Agreement at any time and will return the fees paid by You for any image that Pixelz has not edited and Pixelz may or may not in Pixelz’s sole discretion return fees paid for edited images not yet deemed accepted. Sections 3-9 of these Terms of Services, and any other provisions by their very nature, shall survive the expiration or termination of this Agreement.
9. General Provisions
This Agreement applies only to You and may not be assigned or transferred by You. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of Pixelz. This Agreement will be governed by and construed according to the laws of California, U.S.A. without regard to that body of law controlling conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event of any dispute or claim arising out of this Agreement, the parties shall submit to arbitration with the American Arbitration Association in Santa Clara County, California, U.S.A. or other mutually agreeable arbitration service or location. This Agreement is written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require. The headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of the provisions of this Agreement. Pixelz shall not be liable for any alleged loss or damages resulting from failure to perform due to acts of God, natural disasters, strike, shortages of labor, acts of civil or military authority, governmental priorities, fire, floods, epidemics, quarantine, energy crises, war, riots or interruption of Pixelz’s production for reasons beyond Pixelz’s reasonable control. Pixelz may amend this Agreement at any time, and the terms that will govern Pixelz’s service of a particular image are those in effect on the date You submit the image. No waiver will be implied from conduct or failure to enforce rights. If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. In case of conflict between these Terms of Service and any other statement on Pixelz’s website, these Terms of Service shall control. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all other representations.