MASTER SUBSCRIPTION AGREEMENT
BY LOGGING INTO AND/OR USING ANY APPLICATION CONTAINED THEREIN, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) is made by and between Pixfizz, Inc., a California corporation (“Vendor”), and the user and/or subscriber to the Pixfizz Application (defined herein) (“Subscriber”), and deemed effective as of the date of Subscriber’s initial use of or registration into the Pixfizz Application (the “Effective Date”).
1. Scope of Subscription. Vendor grants to Subscriber a non-exclusive, limited license to access and use the Pixfizz Application and related Supplemental Tools, if any, selected by Subscriber as to the following (collectively, the “Service(s)”):
· Charged on self printed orders only, not on Marketplace fulfillment orders.
2. Term. This Agreement shall remain in full force and effect from the Effective Date and during the initial 14-day trial period (the “Trial Period”) for use of the Instant or Fundraiser Services. Trial use of the Services are limited to one registered email account and/or individual user. Vendor retains the right to terminate trial use for any reason without prior notice. Following expiration of the Trial Period, Subscriber may subscribe to any Primary Subscription (the first 30 days of which shall be deemed as the “Initial Term”) that will automatically renew for successive one (1) month terms (each a “Renewal Term”), in each case until and unless this Agreement is terminated in accordance with Section 10 of the Standard Terms and Conditions (Schedule “C”), or either party provides written notice to the other party at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term of its desire not to further renew this Agreement.
3. Fees. The following fees become applicable and deemed non-refundable as to the Primary Subscription selected by Subscriber following the Trial Period:
3.1. Establishment Fee. Subscriber shall pay Vendor a one-time set-up fee as reflected in Section 1, above (“Establishment Fee”), due upon selection of the Primary Subscription, which includes: (i) installation; (ii) training; and (iii) applicable features as outlined in Schedule “A” of this Agreement for one (1) Storefront.
3.2. Monthly Subscription Fee. Subscriber shall pay Vendor a monthly base subscription fee as reflected in Section 1, above (“Monthly Subscription Fee”), due on the first (1st) day of each calendar month. The initial Monthly Subscription Fee shall be prorated, if necessary, and due upon execution of this Agreement. The Monthly Subscription Fee covers administration of Subscriber’s Storefront(s) identified in Section 3.1, above, monthly update services, critical bug fixes, access to the Pixfizz Editor, training materials as well as online support.
3.3. Transaction Fees. Subscriber shall pay Vendor the “Transaction Fees” reflected in Section 1, above, based on Subscriber’s “Monthly Sales Revenues” (defined as all gross revenues, exclusive of any revenues derived from products fulfilled through the Pixfizz Marketplace™, generated by Subscriber during a calendar month from use of the Service without deducting therefrom any discounts, offsets, overhead, charge backs, returns, allowances, credits, monetary exchange conversion fees or charges, directly or indirectly incurred shipping charges and/or local sales taxes assessed to Subscriber’s customer for that transaction). Further, and for clarity: (i) all reduced price or discounted sales, including, without limitation, those generated and/or processed via “Groupon,” “Living Social,” “Amazon Local” and/or similar intermediaries shall be calculated at that gross retail amount and not the actual amount Subscriber receives net of fees, charges and/or allocations from the use of such Third-Party service(s); and (ii) all transactions processed by any use of the Service in any manner shall have applicable Transaction Fees applied unless an order is marked as a “test” in the control panel (see, www.support.pixfizz.com for functionality) in which case, Subscriber acknowledges Vendor’s right to insert a visible watermark on any such “test orders” print ready files – “test orders” shall not be intended for resale and are subject to the Fair Usage Policy contained herein. Vendor shall invoice Subscriber for that month’s transactions accompanied by a detailed report of each transaction.
4. Storefront Set Up Completion Timeline for Print Service and Enterprise Subscriptions. Vendor shall use its best and reasonable efforts to complete the installation of Subscriber’s Storefronts, excluding any customization items outlined in a separate statement of work (“SOW”), within thirty (30) calendar days upon receipt of all Subscriber’s design elements and requirements. The Storefront installation shall be considered “complete” upon Vendor issuing its “Certificate of Implementation” which is generally consistent with the form attached hereto as Schedule “B”. Failure to complete installation within thirty (30) calendar days will result in Vendor crediting Subscriber five percent (5%) of the already paid Establishment Fee per five-working-day increments. For example, if installation is completed with a delay of one to five days, $47.50 credit will be due ($950.00 x 5%) assuming a $950.00 paid Establishment Fee.
5. Professional Services and Future SOWs.
5.1. Additional customization requirements will be covered in a separate SOW including any additional customization of the main graphical layout into the CMS or otherwise. Vendor agrees to supply Subscriber with the information and material required as detailed in the SOW in order to set up new Storefronts correctly with additional customization.
5.2. In the event additional customization work beyond the scope of this Agreement is requested by Subscriber, said work will be charged at $950.00/day or $150.00/hr., but only with Subscriber’s prior written consent as evidenced by a signed purchase order or estimate.
5.3. Customization work carried out within the CMS’ current features (for example, the integration of a new HTML design beyond the first Storefront implementation) on behalf of Subscriber and beyond the scope of this Agreement will be charged at $435.00/day, but only with Subscriber’s prior written agreement as evidenced by a signed purchase order or estimate.
STANDARD TERMS AND CONDITIONS
1. Scope. These Standard Terms and Conditions pertain to and are fully incorporated into the Agreement (defined herein). In the event that any provision(s) in these Standard Terms and Conditions conflict with the terms and conditions in the Agreement, the order of precedence is: (i) these Standard Terms and Conditions, and then (ii) the Agreement.
2. Definitions. All capitalized (and other below referenced) terms used but not otherwise defined herein shall have the meaning set forth in this Section 2
“Affiliate(s)” means, with respect to a party, any individual, trust, corporation, partnership, joint venture, limited liability company, association, unincorporated organization or other legal entity that, directly or indirectly, is controlling, controlled by or is under common control with such party, whether through the ownership of securities, as a result of contract or otherwise, it being understood that for purposes of this definition “control” means the direct or indirect possession of the power to direct or cause the direction of the management or policies of a Person, either (a) through ownership, directly or indirectly, present or future acquired, of at least 50% of the voting securities, or, in the case of a non-corporate Person, equivalent interests of such Person, (b) by contract or (c) otherwise, and whether previously in existence, now existing, or hereafter arising.
“Agreement” means the Master Subscription Agreement between Vendor and Subscriber to which these Terms and Conditions pertain.
“Certificate of Implementation” means the form generally consistent with that attached hereto as Schedule “B” which may otherwise be updated by Vendor from time-to-time.
“Claim(s)” has the meaning set forth in Section 12.1 of the Standard Terms and Conditions.
“CMS” means Content Management System and is a component of the Pixfizz Application within the administration panel that allows publishing, editing, modifying, organizing and deleting content displayed on the customer facing web pages from a central html editing interface.
“Customer(s)” means any Person, whether an intermediary, including Subscriber’s client, vendor, contractor, agent, End Users or otherwise, who directly or indirectly use the Service.
“Effective Date” has the meaning set forth in the preamble of the Agreement.
“End User(s)” means a Person who utilizes, either directly or indirectly, the Service through Subscriber, including, absent limitation, any of Subscriber’s Customers.
“Establishment Fee” has the meaning set forth in Section 3.1 of the Agreement.
“Image(s)” means data in JPG, .JPEG, .GIF, .TIFF or other similar formats
“Indemnified Party(ies)” has the meaning set forth in Section 12.1 of the Standard Terms and Conditions.
“Initial Term” has the meaning set forth in Section 2 of the Agreement.
“Intellectual Property Rights” means all forms of intellectual property rights and protections of Vendor, its Affiliates and/or licensors and may include, without limitation, all right, title and interest arising under United States common and statutory law, and laws of other countries in and to all: (i) letters patent and all filed, pending or potential applications for letters patent, including, without limitation, any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed; (ii) trade secret rights and other proprietary rights in the know-how, methodologies, source code, object code, concepts, database, database structuring, processes and general knowledge and techniques developed or used by Vendor, its Affiliates or licensors; (iii) copyrights, other literary property or authors rights, whether or not protected by copyright or as a mask work; (iv) proprietary indicia, trademarks, trade names, service marks, symbols, domain names, URLs, logos and/or brand names; and (v) confidential information of Vendor, its Affiliates and/or licensors.
“Monthly Sales Revenues” has the meaning set forth in Section 3.3 of the Agreement.
“Monthly Subscription Fee” has the meaning set forth in Section 3.2 of the Agreement.
“Person” means any individual, subsidiary, corporation, limited liability company, partnership, firm, joint venture, association, joint stock company, trust, estate, unincorporated organization, governmental body or other entity.
“Pixfizz Application” means the complete hosted online web-to-print photo specialty software platform identified in Section 1 of the Agreement, and detailed in Schedule “A”, including its related Intellectual Property Rights thereto, as well as, if applicable, any related online editor, e-commerce facility and/or Supplemental Tools such as the Pixfizz Marketplace™.
“Pixfizz Editor” means the part of the online program End Users utilize in order to edit and personalize products with their Images and text within the Pixfizz Application.
“Primary Subscription” is that subscription service selected and identified in Section 1 of the Agreement (i.e., Instant, Print Service or Enterprise version of the Pixfizz Application) and subject to Schedules A, B and C.
“Renewal Term” has the meaning set forth in Section 2 of the Agreement.
“Service(s)” has the meaning set forth in Section 1 of the Agreement and consists of partial and/or full utilization of the Pixfizz Application.
“SLA” means Service Level Agreement as further defined in Section 8.1 of the Standard Terms and Conditions.
“SOW” means a statement of work defining a scope of service or project to be completed and the general terms related thereto.
“Standard Terms and Conditions” means Schedule “C” to the Agreement.
“Storefront(s)” is an e-commerce solution used by Subscriber in order to advertise and sell goods and services via the Internet. As such, Storefront means the online, Web-based applications and platform provided by Pixfizz via http://yourname.pixfizz.com and/or other designated Storefronts as described in Subscriber’s invoice, that are ordered by Subscriber as part of an order form, including any associated offline components but excluding Third Party applications. In some cases, Subscriber may have more than one Storefront as described in its invoices to cater to different Customers.
“Subscriber” has the meaning set forth in the preamble of the Agreement.
“Supplemental Tool” is that “ad-on” service identified in Section 1 of the Agreement and subject to Schedules “C” and “D” (as applicable).
“Term” means the combination of the Initial and Renewal Term(s).
“Third-Party” means any Person other than a party or an Affiliate of a party to this Agreement.
“Transaction Fees” has the meaning set forth in Section 3.3 of the Agreement.
“Trial Period” has the meaning set forth in Section 2 of the Agreement.
“Vendor” has the meaning set forth in the preamble of the Agreement and is the reseller of the Pixfizz Application and its related Intellectual Property Rights.
3. Limited and Non-Exclusive Use License. Vendor grants to Subscriber a non-exclusive, non-transferable, non-assignable, non-sub-licensable, subscription payment based license to access and use the Services solely for Subscriber’s own business enterprise during the Term of this Agreement. Vendor owns and shall retain all rights, title and interest in and to the Pixfizz Application, including, but not limited to, all of the Intellectual Property Rights related thereto. All other rights not expressly granted to Subscriber herein are retained by Vendor.
3.1. Restrictions. Subscriber shall not: (i) circumvent, disable, alter or manipulate any content protection system or digital rights management technology used by the Pixfizz Application; (ii) decompile, reverse engineer, disassemble or otherwise remove identification, copyright or other proprietary notices; (iii) access or use the Pixfizz Application in an unlawful or unauthorized manner; and/or (iv) access, monitor or copy, or permit another person or entity to access, monitor or copy, any element of the Pixfizz Application using a robot, spider, scraper or other automated means or manual process. Further, Subscriber shall not upload to, distribute, or otherwise publish through the Pixfizz Application any content, information, or other material that: (v) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any Person; (vi) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under applicable law; or (vii) includes any malicious applications, tracking codes or other harmful properties including, for instance, a virus or other harmful content.
3.2. Limitations. All materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that appear as part of Pixfizz Application are copyrights, trademarks, trade dress and/or other Intellectual Property Rights owned, controlled or licensed by Vendor. Subject to the limited exception below, none of that material may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise without our prior written permission. Further, Subscriber cannot “mirror” any material contained in the Pixfizz Application. Any unauthorized use of any material contained therein may violate copyright laws, trademark laws, and various other regulations and statutes and subject Subscriber to personal liability. Subject to the foregoing, and during the Term of the Agreement, Subscriber is granted a limited, non-exclusive, non-assignable, non-sub-licensable and non-transferable license to use the product imagery and related content appearing on the Pixfizz Application for the specific and sole purpose of marketing, advertising and selling products either produced or purchased by Subscriber via the Pixfizz Application.
4. Storefronts; Method of Use of Service; Submissions.
4.1. Content. The Specific manner of use or utilization of the Service, including content material to be displayed in Storefronts, are the sole responsibility of the Subscriber and do not constitute advice and should not be relied upon in making or refraining from making any decision. Subscriber shall be solely responsible for any Third-Party or End User either invited or authorized by Subscriber to use the Service.
4.2 Storefront Design. Subscriber is responsible for design and workflow other than the standard set-up supplied as to the Storefronts (as can be seen on https://instant.pixfizz.com or other standard templates such as for fundraisers, etc.), unless otherwise expressly affirmed by Vendor in writing.
4.3 Ownership of Storefronts. Vendor owns the Storefront design, text, graphics and all software and source codes connected with the Storefront, with the exception of any design supplied by the Subscriber. Subscriber shall exclusively own all rights, title and interest in and to all of the data and customer information generated by the Storefront and/or Subscriber.
4.4. Product/Service Pricing. Products and services, as well as pricing levels, sold through Subscriber’s Storefronts are the sole responsibility of Subscriber. All related shipping and handling, as well as expenses related thereto, shall be Subscriber’s sole responsibility without offset against any compensation owed to Vendor under this Agreement.
4.5. Storefront Order/Shipping Confirmations. Order and shipping confirmation emails will be sent to Customers ordering through the Pixfizz Application and to Subscriber via RSS feed.
4.6. Restrictions. Subscriber may not upload to or by way of use of the Service or offer for sale any of the following: (i) any material that could give rise to any civil or criminal liability under applicable law; (ii) any material that could infringe rights of privacy, publicity, patents, copyrights or intellectual property rights without the permission of the owner of those rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material.
4.7. Storefront Changes. Vendor reserves the right to notify via email (or other electronically transmitted form) the Subscriber of upgrades to Storefronts no later than one (1) working day before upgrades if no outages are anticipated in order to make the upgrade, or five (5) working days in advance for planned maintenance requiring any downtime, then to proceed to upgrade (temporarily or permanently) any part of the Storefront if no objection is timely received in writing from the Subscriber. Subscriber acknowledges and agrees that Vendor shall not be liable for any such changes. Further, Subscriber has the right to make its own changes to the Storefront in the event Vendor chooses not to make requested changes. An administrator password will be furnished by Vendor to allow the Subscriber to makes such changes via the CMS and/or administrator system.
4.8. Gallery Maintenance. Subscriber shall be responsible for updating and maintaining any Image galleries, or saved projects in its account. This includes creating, maintaining and updating gallery pages as well as creating and maintaining passwords (as desired).
4.9. Third-Party Links. Storefronts may include links to Third-Party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and Subscriber acknowledges and agrees that Vendor is not responsible for the content or availability of any such sites.
4.10. Content. While Vendor is not responsible for the submission of content, Vendor reserves the right to delete, move, or edit submissions that it, in its sole discretion, deems abusive, defamatory, illegal or in violation of copyright or trademark laws or otherwise unacceptable.
4.11. Information Compilation. Subscriber grants Vendor the right, from time to time, to use non-financial statistics and statistics not revealing individual user identification but otherwise derived and/or compiled from the Service for use in case studies, examples or as a customer reference.
4.12. Ownership of Images. The submitter of any Image is required by applicable laws own the right to or obtain permission to use any image before the Image is uploaded by use of the Service. Vendor or the Subscriber may request confirmation of copyright ownership from Subscriber and/or the submitter. Vendor and the Subscriber both reserve the right to remove Images or suspend viewing or printing of Images until such confirmation is received. Vendor is committed to protecting photographers’ copyrights. End Users viewing Images through the Pixfizz Application will not have access to the full resolution versions of the Images. However, Vendor cannot prevent customers from saving low-resolution versions of the Images with or without watermarking but Subscriber shall be liable for its Customers’ utilization of the Service in any event.
5. Fair Usage Policy. In order to provide an elastic storage system for Images used in products and storage of Customers’ projects on the Service, 100GB (100,000MB’s) of base storage is provided with the Service. Additional 500MB’s of storage space is automatically incremented for every $1.00 Vendor charges Subscriber in Transaction Fees. In order to avoid use of the Service to purely store Images indefinitely, additional storage (beyond 100GB + 500mb/$1.00 in Transactional Fees), is priced at $0.64 cents/1000MB/month. Subscriber will have all the tools to view manage or delete Images no longer needed and/or used.
6. Payments Terms and Procedures.
6.1. Payment Gateway. Vendor recommends Braintreepayments.com as a payment gateway with the Pixfizz Application, for its, flexibility and integration with most major banking institutions. However, Vendor will guarantee the implementation of the Pixfizz Application with the following payment gateways free of charge, following Subscriber setting up its respective account(s): Braintree, Paypal or Authorize.net. Vendor reserves the right to refuse integration of the Pixfizz Application with any payment gateway at its sole discretion. Fees and other charges may be incurred by Subscriber and payable to the payment gateway. However, Vendor will not charge for the interfacing and connection of the Pixfizz Application Storefront with Subscriber’s Braintree payments, Paypal or Authorize.net account. Subscriber must have a valid account with one of the payment gateways in the same name as is invoiced by Vendor unless otherwise expressly agreed in writing. Subscriber is responsible for the day-to-day management and payment of fees, charges or any other amounts to the Subscriber’s payment gateway. Vendor shall in no manner be responsible for any rate changes or any other fees charged by the payment gateway to Subscriber.
6.2. Form and Terms of Payment. All payments due under this Agreement shall be calculated for the given billing period and payable in United States Dollars ($ USD) via credit card or ACH, electronic funds transfer or wire transfer. In the event Vendor agrees to accept any other form of payment for which any processing and/or transaction charges are assessed (e.g., Paypal), Subscriber shall be solely responsible for any all such additional charges. Unless otherwise stated, all amounts due under this Agreement shall be paid net fifteen (15) days upon submission of invoices. Subscriber shall pay, on all amounts past due that have not been disputed specifically in writing and in reasonable good faith, an interest charge of one and one-half percent (1.5%) per month (or the maximum rate permitted by California law ) computed from the due date of each payment. A thirty-five dollar ($35.00) administrative processing fee shall be assessed and immediately due for each delinquent payment.
7. File Transfer for Printing. Vendor guarantees files will be generated in a PDF print ready format and will work with printer(s) of the Subscriber’s designation to make sure all files are read properly. Vendor shall exercise reasonable efforts to transfer the files to the printer(s) selected by Subscriber within a maximum of four (4) hours of the order placement. However, while this is not a contractual requirement, all reasonable endeavors will be made to meet this target as other Third-Party influencers such as internet speed and Subscribers FTP service may impact compliance targets. Data contained in any of the print files is the sole property of Subscriber.
8. Service Level Agreement and Uptime
8.1. General. The uptime guarantees and the resulting Service Level Agreement (“SLA”) credits, if any, shall be applied to Subscriber’s Monthly Subscription Fee only. For clarity, no SLA credits will be applied to or offset against Subscriber’s obligation for payment of the Establishment Fee, Transaction Fees, and/or any other fees or charges accrued pursuant to this Agreement. All SLA guarantees and information listed below (Table A) are made in good faith and are subject to standard contract remedies. The uptime may be verified using http://www.pingdom.com by Subscriber at any time. However, Subscriber may require a separate paid subscription to use such Third-Party service and all such expenses shall be Subscriber’s sole responsibility.
8.2. SLA Credit Claim. To properly claim an SLA credit due, Subscriber’s master administrative user must open a support ticket located inside the Subscriber portal at http://support.pixfizz.com within seven (7) days of the purported outage. Failure to timely claim SLA credits shall invalidate the claim. Subscriber must include service type, domain, contact information, and full description of the service interruption including proof other internet services were available at that time. The SLA claim will be researched by the appropriate Vendor support manager with the use of Third-Party tools used for monitoring uptime and such data will be used to determine validity of the claim and the ticket thereafter updated. SLA credits are issued as service credits on future billing cycles but do not otherwise cumulate (i.e., carry over from month-to-month) and cannot exceed the amount of the impacted month’s paid Monthly Subscription Fee in any event. Subscriber shall not barter, trade and/or exchange SLA credits with other Customers of Vendor. Please allow up to fourteen (14) days for the processing of SLA claims.
SLA Claim Qualification. Subscribers currently in arrears for any fees due under this Agreement do not qualify for SLA claims and/or credits. Subscribers who have been in payment arrears three (3) or more times in the previous twelve (12) months also do not qualify for SLA claims or credits. A valid SLA claim will not be credited to the Subscriber’s account until all relevant claim related issues are resolved. Any false or repetitive claim shall incur a charge of $50.00 per incident for such claims. False or repetitive claims shall also be deemed a material breach of this Agreement and may be subject to Service suspension. Any malicious or aggressive internet activities, even from Third-Parties, thereby causing attacks or counter-attacks, do not qualify for SLA claims and shall be deemed a material breach of this Agreement.
9. Service Interruptions. Vendor reserves the right to conduct scheduled and unscheduled maintenance. Vendor will provide notice of maintenance when reasonably possible. However, in no event shall Vendor be liable for any harm Subscriber may experience as to such downtime or interruptions and Subscriber further understands that the uptime guarantees and the resulting SLA are exclusive of the foregoing scheduled and unscheduled maintenance issues.
10.1. Any breach of Subscriber’s payment obligations or violation of any terms of this Agreement, including, absent limitation, unauthorized use of Subscriber’s Storefront(s) shall be deemed a material breach of this Agreement and, if such breach has not been cured within five (5) days of notice, Vendor in its sole discretion may suspend or terminate Subscriber’s password(s), account(s) and/or use of the Service. Subscriber agrees and acknowledges that Vendor has an obligation to retain Subscriber’s data for thirty (30) days after such notification of breach. In the event that any breach is not fully and timely resolved, Vendor may delete Subscriber’s and/or its End Users’ and Customers’ data, including Images and ordered products following expiration of the retention time period stated above. In the event of termination, all outstanding payments for accrued and/or issued invoices shall become immediately due and payable. No refunds will be given for already paid or agreed to be paid fees of any kind during the period leading up to the termination date where Services are suspended or terminated.
10.2. Subscriber may terminate this Agreement at any time and for any reason with thirty (30) days advance written notice to Vendor and by paying any accrued and/or outstanding amounts due during the notice period. However, if Subscriber cancels this Agreement within the Initial Term, full payment of the entire remaining first year’s Monthly Subscription Fees shall become accelerated, immediately due and payable, regardless of the installment payment method (e.g., monthly) otherwise referenced in this Agreement.
10.3. Vendor may, in its sole discretion, terminate this Agreement without advance notice in the event that Subscriber makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against Subscriber, or if a receiver or trustee is appointed for all or any part of its property or assets.
10.4. Termination or expiration of this Agreement for any reason shall not be deemed a waiver of Vendor’s rights or release as to Subscriber’s obligations incurred prior to the effective date of termination or expiration, which by their nature, are intended to survive termination including, without limitation, limitations of warranties and liabilities (Section 11) as well as indemnity (Section 12).
11. Limited Warranty; Limitation of Liability.
11.1. VENDOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ACCURACY WITH RESPECT TO THE SERVICE.
11.2. UNDER NO CIRCUMSTANCE, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND/OR BREACH OF CONTRACT, WILL VENDOR BE LIABLE TO SUBSCRIBER, ITS AFFILIATES OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE USE OR INABILITY TO USE THE SERVICES. IN NO EVENT WILL VENDOR’S TOTAL LIABILITY FOR DAMAGES, LOSSES, OR CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, EXCEED THE LAST PAID MONTHLY SUBSCRIPTION FEE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT BE APPLICABLE. The remedies provided in this provision allocate the risks under this Agreement, some of which may be unknown or undeterminable. Such limitations serve as a material inducement for the parties to enter into this Agreement and the parties have relied upon these limitations in determining whether to enter into this Agreement.
11.3. VENDOR SHALL NOT BE LIABLE FOR SUBSCRIBER’S FAILURE TO COMPLY WITH ANY LAWS, RULES AND/OR REGULATIONS.
11.4. Vendor shall not be liable for: (i) the accuracy, truthfulness, or validity of any data entered by Subscriber or provided through the Service; (ii) the loss, destruction or compromise of any of Subscriber’s data; (iii) returns due to poor Image quality, cropping, manufacturer defects, printing or shipping errors or any other factors outside of Vendor’s direct control.
11.5. Vendor shall not be liable for any damages arising out of or related to interruption of, or defects in transmission of the Service, including, without limitation, interruptions or defects due to inability to access the Internet or any part thereof, equipment modifications, upgrades, relocations or repairs. No reduction of fees will be made in the case of temporary interruption of or defects in transmission of the Service unless otherwise provided by this Agreement.
11.6. Subscriber acknowledges that Vendor has no obligation to store, retain or backup any information or data either inputted or uploaded by Subscriber to the Service.
11.7. Subscriber’s sole and exclusive remedy, if it is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of Vendor is to discontinue using the Service and request termination of this Agreement.
12.1. Indemnity. Subscriber shall defend, indemnify and hold harmless Vendor, its Affiliates, licensors and their respective shareholders, members, subsidiaries, affiliates, and their respective former, current and future officers, directors, managers, employees, agents, insurers, attorneys, contractors, successors and assigns (collectively, “Indemnified Party(ies)”), from and against all third party claims, costs, liabilities, damages and expenses of every kind, including punitive damages, court costs, and reasonable attorneys’ and expert witness fees, incurred as a result of all claims, demands, actions, suits, arbitrations, assessments, adjustments or other proceedings (collectively, “Claim(s)”): (i) arising from a breach of this Agreement, or any action or inaction in connection with this Agreement, by Subscriber including its Affiliate and their respective officers, directors, employees, agents, End Users and/or contractors; (ii) arising out of use of the Services; or (iii) arising, in the broadest possible sense, out of or relating to this Agreement.
12.2. Notification and Procedure. The Indemnified Party shall notify Subscriber of any Claim to which these indemnification obligations may apply. Upon receiving notice of a Claim, Subscriber shall assume the defense of the Claim, employ independent counsel reasonably acceptable to Indemnified Parties, and contest, pay, or settle the Claim as it may determine, except that Subscriber shall not enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party. Notwithstanding the preceding sentence, Indemnified Party is entitled to defend a Claim through counsel of its own choosing without the participation of Subscriber and at Subscriber’s sole expense, if: (i) Subscriber fails or refuses to promptly defend the Claim on or before the ten (10th) day after Indemnified Party has given written notice pursuant to this Section; or (ii) representation of Indemnified Party and Subscriber by the same counsel has the potential to constitute a conflict of interest. At Subscriber’s sole expense: (iii) Indemnified Party will provide reasonable cooperation to Subscriber connection with the defense or settlement of any Claim; and (iv) Indemnified Party will be entitled to participate in the defense of any Claim.
13.1. Assignment. This Agreement is fully assignable or transferrable by Vendor to any Person or legal entity, and it shall inure to the benefit of any assignee or other legal successor. However, Subscriber agrees that it may not sub-license, transfer and/or assign this Agreement without the prior written consent of Vendor whose consent shall not be unreasonably withheld. Assignment under this Agreement includes a merger, consolidation or other transaction that leads to a change of control of Subscriber.
13.2. Notices. All notices and other communications under this Agreement will be given in writing and be deemed to have been duly given and effective: (i) upon receipt if delivered in person; (ii) one (1) day after deposit prepaid with a national overnight express delivery service with delivery confirmation; (iii) upon acknowledged receipt if transmitted electronically; or (iv) upon fax transmission with error free confirmation report. Further, in lieu of the above, Vendor shall have the right to electronically post notices to Subscriber’s account, including, absent limitation any landing page and or dashboard, in which event such notice(s) shall be deemed to have been immediately given.
13.3. Waivers and Modifications; Cumulative Remedies. Unless otherwise expressly stated herein, the failure of any party to insist on the performance of any obligation hereunder will not be deemed to be a waiver of such obligation. The remedies provided in this Agreement and at law or in equity are cumulative and not exclusive.
13.4. Integration. This Agreement, along with the specified schedules, constitutes the complete and exclusive understanding of the parties relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements and communications, whether written or oral, relating thereto.
13.5. Severability. In the event that any provision of this Agreement is held to be unenforceable, such provision will be construed as nearly as possible to reflect its original intent and the remainder of this Agreement will remain in full force and effect.
13.6. Force Majeure. Notwithstanding any provision contained in this Agreement, except with respect to Subscriber’s payment obligations, neither party shall be in breach hereunder or be liable to the other to the extent its fulfillment or performance of any terms or provisions of this Agreement is delayed by revolution or other civil disorders, wars, acts of enemies, strikes, terrorism, labor disputes, electrical or telecommunications availability failure, fires, floods, acts of God, or without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes herein before enumerated or not.
13.7. Governing Law; Jurisdiction; Venue. This Agreement shall be governed in all respects by the laws of the State of California without regard to its conflict of law provisions. The courts in and for Orange County, California shall have exclusive venue and jurisdiction for any dispute arising from this Agreement. This Agreement is deemed to have been entered into in Orange County California and the parties submit to the exclusive jurisdiction of the courts of Orange County, California for all purposes. The foregoing, however, shall not limit the right of either party to serve process in any jurisdiction or to commence any legal action/proceeding in any jurisdiction in order to obtain entry or execution on a judgment or any other judicial order.
13.8. Headings. Titles or headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or prescribe the scope of this Agreement or the intent of any provision.
13.9. No Third-Party Rights. No Person who is not a party to this Agreement will derive any rights whatsoever hereunder as a third-party beneficiary.
13.10. Further Actions. The parties agree to take all further actions, including the execution of documents, which are reasonably necessary to effectuate the transaction(s) contemplated by this Agreement.
13.11. Joint Drafting. The parties agree that they have participated jointly in the drafting and negotiation of this Agreement and that the language of this Agreement shall be construed as a whole according to its fair meaning and no presumption or burden of proof favoring or disfavoring either party will exist or arise by virtue of the authorship of any provision hereof.
13.12. Authority. Subscriber affirms that it has the full power, authority and legal right to execute and deliver this Agreement and that entering into this Agreement does not violate any obligation, contractual or otherwise, as between Subscriber and any other Person.
[End – Schedule “C”]
2. Pixfizz Marketplace™ Application. Pixfizz Marketplace™ permits access to a variety of ready-made product templates, designs and marketing content which can be downloaded and printed by the Subscriber or purchased via Vendor’s Third-Party fulfillment service providers (“Fulfillment Services”). Use of the Pixfizz Marketplace™ requires a valid Primary Subscription of the Pixfizz Application.
3. Product Pricing. Individual product pricing will vary depending on the selected Third-Party Fulfillment Services provider and or products selected by Subscriber. As such, product pricing (as well as associated terms and conditions) will be reflected on Subscriber’s screen in the product marketplace under each template. By publishing products to its Storefront(s), Subscriber accepts that this will be the pricing charged for the selected Fulfillment Services and shipping of products to Subscriber unless the Third-Party Fulfillment Services provider has posted notice of any product pricing changes at least fourteen (14) days in advance of implementation of such changes.
4. Payment Protocols and Options. Vendor reserves the right to suspend, cancel, reject and/or place orders on “hold” status if: (i) the designated payment method is not pre-authorized or declined for any reason; or (ii) Subscriber is in default of any obligation to Vendor. Subject to the following, Subscriber shall have the right to select between the following two (2) available payment options:
4.1. Subscriber’s Payment Gateway.
· Subscriber may use its own payment gateway (via Subscriber’s own Storefront) in order to process payment transactions. However, Subscriber must maintain a valid credit card on file with Vendor as guarantee of payment to Vendor for all assessed charges. As such, Vendor may initially pre-authorized $1.00 USD in order to validate the credit card provided by Subscriber. Thereafter, Vendor may take pre-authorizations from Subscriber’s credit card in increments of $250.00 USD for orders sent to Fulfillment Services. Such pre-authorizations may be retained for five (5) days or until the credit card is charged for product purchases.
· Details of incurred charges for fulfillment related fees are outlined on each product template in the Pixfizz Marketplace™, and the running total reflects the total charges for product templates ordered and sent to fulfillment. The running total of fulfillment related fees will be totaled for up to five (5) days then charged against the stored payment method. However, if the running total exceeds the pre-authorized amount, Vendor may increase the pre-authorization or charge the designed payment method card and pre-authorize an additional $250.00 USD. It is the Subscriber’s sole responsibility to ensure the designated payment method has sufficient authorization and credit spending limits.
4.2. Vendor’s Payment Gateway. If Subscriber uses Vendor’s payment gateway, details of the charges for Fulfillment Services related fees will be identified outlined on each product template within the Pixfizz Marketplace™, and the running total reflects the total charges for product templates ordered and sent for fulfillment. The Fulfillment Services charges will be deducted off each order and funds will either be paid electronically or via check by the 10th day of the month for the previous month’s charges. A detailed ongoing report of total and individual charges will be available in the Subscriber’s control panel.
4. Data Ownership. Subscriber shall exclusively own all rights, title and interest in and to all of the images, text, designs, data and client or customer information inputted by Subscriber into the Pixfizz Marketplace™.
5. Disclaimers; Acknowledgments
5.3. SUBSCRIBER ACKNOWLEDGES THAT PRODUCT ORDERS PLACED VIA THE PIXFIZZ MARKETPLACE™ ARE PRODUCED BY THIRD-PARTY FULFILLMENT PROVIDERS AND NOT VENDOR. AS SUCH, VENDOR CANNOT AND EXPRESSLY DOES NOT GUARANTEE OR WARRANT THAT THE IMAGES, DIMENSIONS AND/OR DESCRIPTIONS PROVIDED ON THE PIXFIZZ MARKETPLACE™ WILL BE ERROR FREE AND/OR REFLECT THE EXACT PRODUCT ORDERED. HOWEVER, VENDOR WILL ATTEMPT, TO THE EXTENT POSSIBLE, TO FACILITATE A REFUND FROM THE THIRD-PARTY FULFILLMENT PROVIDER FOR FAULTY PRODUCTION PRODUCTS.
5.4. IN NO EVENT SHALL VENDOR BECOME LIABLE FOR ANY PRODUCT REFUNDS AND/OR DAMAGES, LOSSES, INDIRECT, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL DAMAGES OR HARM IN ANY FORM CAUSED AS RESULT OF LOST, DELAYED, DESTROYED, MIS-SHIPPED OR QUALITY DEFICIENT ORDERS, OR REFUNDS OF ANY KIND.
5.5. SUBSCRIBER ACKNOWLEDGES THAT EACH THIRD-PARTY FULFILLMENT PROVIDER MAY HAVE DIFFERENT CANCELATION, RETURN OR REFUND POLICIES AND THAT ANY PRODUCT ORDER CANCELATION, RETURN OR REFUND REQUEST MUST BE HANDLED DIRECTLY BY SUBSCRIBER THROUGH THE THIRD-PARTY FULFILLMENT PARTNER. AS SUCH, SUBSCRIBER MUST STRICTLY COMPLY WITH THE THIRD-PARTY FULFILLMENT PROVIDER’S APPLICABLE RETURN OR CANCELATION POLICIES.
5.6. Subscriber is encouraged to obtain samples prior to order placement to ensure desired specifications. While Vendor strives to provide accurate content, product pricing, descriptions, specifications, sizes, colors, images and availability, it does not warrant that any such information is error free, fully accurate, complete, reliable or current. Specifically, Vendor reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time, including, without limitation, product availability and pricing adjustments, absent prior notice.
[End – Schedule “D”]