Pixaria – SaaS Terms of Service Agreement


PLEASE READ THIS CAREFULLY AND SAVE A COPY. This is an agreement between you (“you”) and Pixaria Inc. (“Pixaria” or “we”) (the “Agreement”). This Agreement governs your access to and use of the services identified in Section 1 (the “Services”). By using or accessing the Services, or by agreeing to these terms where the option is made available to you on the Pixaria Website, you agree to abide by this Agreement without modification by you. If you do not agree, you are not permitted to use the Services.

From time to time Pixaria may amend the terms and conditions of this Agreement. If we do, we will notify you, either through the Pixaria Website, in an email message, or through other reasonable means. If you access or use the Services after the date the change becomes effective, you consent to the changed terms. If you do not agree to the changes, you must stop using and cancel the Services immediately.

 

(1) Description of Services

 

Pixaria provides hosted digital asset management services, available through the pixaria.com website (including any country-specific domains or subdomains thereof) (the “Pixaria Website”), to assist you in managing your digital assets online. Pixaria will provide you with an account and access to a personalized domain, hosted on the Pixaria Website (e.g. you.pixaria.com), (the “Personalized Website”) which you may use pursuant to the terms of this Agreement. The particular features and storage or bandwidth limits applied to the Services depend on your selection of a given service category upon your subscription to the Services on the Pixaria Website, which features and limitations are incorporated into this Agreement by reference.

If you are an individual, note that the Services are only made available to, and may only be used by, individuals who are 18 years of age and older who can form legally binding contracts under applicable law. If you are an individual, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Individuals under the age of 18 must at all times use the Services only in conjunction with and under the supervisions of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the user and is responsible for any and all activities.

 

(2) Content Ownership

You represent and warrant that any information or content that you upload to your account or otherwise provide to Pixaria in connection with the Services (“Content”) is owned by you or that you have a valid and legal license agreement authorizing you to publish, use, or otherwise transmit the Content on or through your Personalized Site.

Pixaria does not claim ownership rights in your Content. You grant Pixaria a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) license to (i) exercise the copyright, publicity, and database rights that you have in the Content, in any media now known or not currently known, with respect to your Content; and (ii) use the Content in connection with the provision of the Services. You agree to allow Pixaria to store, translate, or re-format your Content on the Pixaria Website in any way Pixaria chooses.

As between you and Pixaria, Pixaria owns or has obtained the necessary rights to use the Pixaria Website, and all software, hardware, and related documentation that is used to provide the Services. Pixaria reserves all rights, not expressly granted to you in this Agreement, in and to the Services, the Pixaria Website, and any other related software, content, and intellectual property rights related thereto, including all Pixaria graphics, logos, designs, page headers, button icons, and scripts.

 

(3) Privacy

The privacy policy that governs your use of the Services is published in a separate document, available in the footer of the pixaria.com home page (the “Privacy Policy”). The Privacy Policy describes how Pixaria uses and protects your Content and any information we collect from you. By using the Services or agreeing to these terms, you consent to Pixaria’s collection, use, and disclosure of your Content and information as described in the Privacy Policy. You also agree that any collection, use, or disclosure of third party information collected through your use of the Personalized Website shall comply with all applicable privacy laws and shall be subject to privacy obligations that are no less onerous than those set out in the Privacy Policy.

 

(4) Your Responsibilities

You are solely responsible for maintaining the security of your account and Content and you are fully responsible for all activities that occur within that account and any other actions taken on the Personalized Website or otherwise in connection with the Services, including actions taken by your designates, agents, contractors, and employees and all individuals that you register as a manager or person responsible for your accounts (“Your Users”). Pixaria identifies you by the usernames and passwords that are connected with your account. After successful login to your account, all actions are deemed to be taken by you. You agree to immediately notify Pixaria of any unauthorized use of your account or any other breaches of security. You are solely responsible for maintaining and backing-up your Content.

You are entirely responsible for the Content and any harm, damages, allegations of misappropriation resulting from the Content, regardless of whether the Content in question constitutes text, graphics, audio file, or any other digital files you uploaded, downloaded, or created on the Services. By authorizing Pixaria to host your Content, you represent and warrant to Pixaria that:

(a) your use and Your Users’ use of the Services and the uploading, downloading, reproduction, presentation and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;

(b) the Content does not contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;

(c) neither you, nor Your Users, will attempt to hack, reverse engineer the Services or related software, nor engage in any operation or behavior designed to break or thwart the security system of the Services;

(d) the Content is not spam, is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or to further unlawful acts (such as phishing) or mislead recipients as to the source of the Content (such as spoofing);

(e) the Content does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;

(f) the Content and your use, or Your Users’ use, of the Services is not defamatory, trade libelous, unlawfully threatening, unlawfully harassing, and does not impersonate or intimidate any person, or falsely state or otherwise misrepresent your affiliation with any person;

(g) the Content is not obscene and does not contain any pornography, including child pornography;

(h) the Content and your use, or Your Users’ use, of the Services is not false, fraudulent, inaccurate, or misleading;

(i) the Content and your use, or Your Users’ use, of the Services does not violate this Agreement, the Privacy Policy, or any applicable law, statute, ordinance, or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, anti-spam, or false advertising);

(j) the Content hosted on the Services will not use the Services as a broadcast engine to generate spam or engage in unethical marketing, and the Services are not intended to be used as a broadcasting service;

(k) you are aware that the previews or thumbnails of your Content that appear on the Services may be subject to unauthorized extraction by unauthorized third parties and that such action by third parties is beyond Pixaria’s control; and

(l) the Content and the licencing of any Content you choose to host, manage or deliver on the Services is your sole responsibility.

 

(5) Termination of Services

If you or Your Users violate this Agreement, then Pixaria may, in its sole and absolute discretion: (i) remove, limit distribution of or disable access to your Content, (ii) suspend or cancel your or Your Users’ access to the Services, (iii) disable or terminate your Pixaria account (which means that you may no longer have access to those Pixaria products, services, or Content connected to your Pixaria account), (iv) refer such activity to appropriate authorities, and/or (v) terminate this Agreement. Content that is removed may be irretrievable.

You may cancel or terminate the Services at any time by e-mailing Pixaria at support@pixaria.com. If the Services are canceled or terminated (whether by you or us), your right to use and access the Services stops immediately. If the Services are canceled or terminated, or if your Pixaria account is closed, we will delete information or Content associated with your Pixaria account. We are under no obligation to return Content to you.

 

(6) Payment Terms

You agree to pay all charges associated with your access to and use of the Services, as set out on the Pixaria Website upon your subscription to the Services (“Fees”). Unless stated otherwise, the Fees are quoted and payable in US dollars. Unless stated otherwise, your payment obligations are non-cancelable and the Fees paid are non-refundable. Pixaria expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications will be posted online at the Pixaria Website and effective immediately without need for further notice to you. Failure to pay Fees when due will be deemed to be a violation of this Agreement, for which any of the remedies in Section 5 may apply.

The Fees are exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (“Taxes”). Customer shall be solely responsible for the payment of Taxes. Pixaria may gross-up any Fees or other amounts payable by you to Pixaria in respect of, or in anticipation of, any withholding and other Taxes that Pixaria may be required to collect or remit in respect of any Services performed under this Agreement. Pixaria shall not have any responsibility or liability to you with regard to any third party services used by you on or through the Services, such as payment and e-commerce services. Any use of such third party services shall be at your sole responsibility and liability. You acknowledge that while the Pixaria Website and Personalized Website provides a technical ability to link to such services (such as a “PayPal”, “Bitcoin”, or “Credit Cards” button links), such functionality is offered only as part of the Services and shall not be deemed to create any liability or responsibility for Pixaria. The terms of service and privacy policies of all third party service providers, such as PayPal, govern your relationship with those third party service providers.

 

(7) DISCLAIMER

YOU AGREE AND UNDERSTAND THAT YOUR USE OF THE SERVICES, THE PIXARIA WEBSITE, AND THE PERSONALIZED WEBSITE SHALL BE AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND ON AN “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WILL NOT OCCUR.

TO THE FULLEST EXTENT PERMITTED BY LAW, PIXARIA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND AFFILIATES DISCLAIM ALL WARRANTIES, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, LEGAL, OR IMPLIED, ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, WITH RESPECT TO THE SERVICES, THE CONTENT, THE PIXARIA WEBSITE, THE PERSONALIZED WEBSITE, CONTENT PROVIDED BY THIRD PARTIES, AND OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS OF MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ERROR-FREE OR UNINTERRUPTED SERVICE, ACCURACY, AVAILABILITY, RELIABILITY, SECURITY, CURRENCY AND COMPLETENESS.PIXARIA MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE PIXARIA WEBSITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE PIXARIA WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY, BODILY, MORAL OR MATERIAL DAMAGE OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, THE PIXARIA WEBSITE OR THE PERSONALIZED WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PIXARIA WEBSITE, PERSONALIZED WEBSITE, OR SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PIXARIA WEBSITE, PERSONALIZED WEBSITE OR SERVICES BY ANY THIRD PARTY, AND/OR (Vi) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PIXARIA WEBSITE, PERSONALIZED WEBSITE OR THE SERVICES.

PIXARIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU OR BY A THIRD PARTY THROUGH THE SERVICES, THE PIXARIA WEBSITE, THE PERSONALIZED WEBSITE, ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PIXARIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY (INCLUDING CUSTOMERS OR ADVERTISERS). AS WITH THE PURCHASE OR SALE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ARE HEREBY DISCLAIMED.

 

(8) Indemnity and Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT PIXARIA SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PIXARIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS, CONDUCT, ACTS, OR OMISSIONS OF ANY THIRD PARTY; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, PIXARIA IS FOUND TO BE LIABLE FOR ANY DAMAGES HEREUNDER, OR OTHERWISE IN CONNECTION WITH THE SERVICES, UNDER NO CIRCUMSTANCES WILL PIXARIA BE LIABLE FOR ANY AMOUNT IN EXCESS OF CAD$10.00. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES, THE PIXARIA WEBSITE, OR THE PERSONALIZED WEBSITE MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

For greater certainty, under no circumstances shall Pixaria be held liable for any delay or failure of the Pixaria Website, Personalized Website, and/or any of the Services and/or any information on the Services directly or indirectly resulting from, arising out of, or in connection with events beyond the reasonable control of Pixaria, including, without limitation, internet failures, equipment failures, electrical power failures, strikes, labor disputes, riots civil disturbances, shortages of labor or materials, fires, floods, storms, earthquakes, explosions, acts of God, war, terrorism, governmental actions, orders of courts, tribunals or non-performance of third parties.

You acknowledge and agree that the limitations set out above form an integral part of this Agreement and that Pixaria is relying on these limitations and exclusions of liability in providing the Services on the terms and conditions set out in this Agreement.

You agree to indemnify, defend, and hold harmless Pixaria, and its subsidiaries, affiliates, directors, officers, employees and agents from and against any claim or demand, including legal fees, arising out of or related to your Content, your or Your Users’ use of the Services, your connection to the Services, your violation of this Agreement, and/or your violation of any rights of a third party.

 

(9) General

This Agreement, together with the Privacy Policy and any other legal notices published by Pixaria on the Pixaria Website, shall constitute the entire agreement between you and Pixaria concerning the Services and the Pixaria Website. Pixaria may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement or transfer any rights to access or use the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Pixaria’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The courts of the Province of Ontario have exclusive jurisdiction over this Agreement, without regard to conflict of laws principles. Upon accepting this Agreement, you agree that the Services are offered, accepted, and fully performed within the Province of Ontario.

Version 2.0 Last updated: December 23, 2014