Terms & Conditions - Pixel Digital Agency

Terms & Conditions

Last Updated: November 7, 2018

Welcome to the Pixel Inc. (“Pixel”) website located at www.pixel-ny.com (the “Site”). Pixel provides the Site as a service to our customers. Please read the following terms of service (“Terms”) governing your use of the Site as well as the services and content that are accessible through the Site. For simplicity, the Site and our services and content are collectively referred to as the “Services.”

By using the Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please do not use the Services.

We may update the Terms at any time. If we do so, such updated Terms shall be posted on the Site. Please review the Terms whenever we update them or when you use the Services. If you continue to use the Services after we have posted updated Terms, you agree to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, please do not continue using the Services. Because the Services continue to evolve over time, we may change or discontinue any part or all of the Services, at our sole discretion and at any time without notice.

IMPORTANT: BY AGREEING TO THESE TERMS, YOU AGREE TO RESOLVE YOUR DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OR THE DISPUTE IS EXCLUDED FROM ARBITRATION, AS FURTHER DESCRIBED IN THE DISPUTE RESOLUTION SECTION BELOW. PLEASE REVIEW THE DISPUTE RESOLUTION SECTION BELOW FOR DETAILS ON ARBITRATION AND OPTING-OUT.

Privacy Policy

Please refer to our Privacy Policy, at https://www.pixel-ny.com/privacy, for information on how we collect, use and disclose information from our customers. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

Content

(a) Our Content

All of the content that appears on the Site, including any visuals, text, audio and video clips are subject to copyright protections and/or other intellectual property rights or licenses held by Pixel (“Content”). We either own or have a license to all such Content.

Subject to your compliance with these Terms, Pixel grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.

(b) User Content

“User Content” includes, but is not limited to, any text, graphics, images, works of authorship of any kind or other materials that are posted, generated, provided, or otherwise made available by you through the Services or shared by you with other users or recipients. User Content also includes without limitation Feedback (defined below) and Tagged Media (defined below).

By making User Content available through the Services, you hereby grant to Pixel a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content, in whole or in part, in connection with the Services and Pixel’ (and its successors’ and affiliates’) business, including without limitation for promoting, marketing or advertising and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (whether now known or hereafter devised). You understand that Pixel is not obligated to utilize any of the rights granted in these Terms and we do not guarantee any confidentiality with respect to any User Content you submit or upload.

Except where prohibited by law, by submitting or uploading User Content through the Services, you waive and agree not to assert any “moral” rights or claims resulting from our alteration of the User Content or any photographs, footage, statements or other work contained in the User Content. You also agree to appoint Pixel as your attorney-in-fact with respect to the User Content, with the right to execute and deliver any documents, in your name and on your behalf, to ensure that we can use the User Content that you are licensing in any way we see fit, and to protect the rights in any derivative works created from your User Content, and to have the User Content removed from any other website or platform.

You are solely responsible for all of your User Content. You represent and warrant that you own all of your User Content, or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Pixel on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

(c) Pixel-Tagged Media

The Site extracts content from our users and customers who share photos and videos on social media including, but not limited to, Instagram with Pixel’ brand hashtags such as #NoPlans, #SleepwearForEverywhere, #NoPlansIRL, #LifeInOutOfBed, #NoPlansCreativePartner, #NoFomoNoPlans, or tagging the Pixel Instagram account @Noplansnyc (all such hashtagged or @labeled photos and videos are collectively referred to as “Tagged Media”). You acknowledge and agree that Tagged Media may be used in Pixel’ retail locations, showrooms, email, on our Site or other websites that we operate or control, and you hereby grant us permission to use and authorize others to use your name or social media handle in association with Tagged Media for identification, publicity related to the Services and similar promotional purposes, including after you terminate your Account or your use of the Services. You represent and warrant that posting and use of your Tagged Media, including to the extent such Tagged Media include your name, likeness, voice, or photograph, does not violate, misappropriate or infringe on the rights of any third party including, without limitation, privacy rights, publicity rights, copyrights, trademark, or other intellectual property rights.

(d) DMCA/Copyright Policy

Pixel respects copyright law and expects its users to do the same. It is Pixel’ policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders.

Use of the Services

Pixel wants everyone to have a great experience using the Services. That’s why you agree that you will not do any of the following things, otherwise we might have to suspend or terminate your Account:

  • Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
  • Use, display, mirror or frame the Services, or any individual element within the Services, Pixel’ name, any Pixel trademark, logo or other proprietary information (including through the use of meta tags or the like), or the layout and design of any page or form contained on a page, without our express written consent, except as is clearly permitted by the functionality of the services;
  • Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Pixel or other generally available third-party web browsers;
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
  • Attempt to interfere in any way with the Services or Pixel’ networks or network security, or attempt to use the Services to gain unauthorized access to any other computer system;
  • Collect or store any personally identifiable information from the Services or from other users of the Services without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other third party or individual to do anything listed above.

Although we are not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Feedback

We welcome feedback, comments, reviews of the products you purchase from Pixel, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at help@pixel-ny.com or by reviewing a particular product. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

Correction of Site Errors

The information on the Site may contain typographical errors or inaccuracies. We reserve the right to update any information at our sole discretion and at any time without prior notice. Please note that such errors may relate to product information, pricing and availability. In these instances, we shall have the right to terminate any orders involving pricing errors or inaccuracies. We apologize for any inconveniences.

Indemnity

You agree to indemnify and hold Pixel (and its officers, directors, agents, subsidiaries, joint ventures, and employees) harmless from any claim or demand, as well as losses, expenses, damages and costs, resulting from any violation of these Terms, your use of the Services, or any activity related to your Account (including negligent or wrongful conduct).

Third Party Links

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Termination

We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may disable access to your Account at any time by sending an email to us at help@pixel-ny.com. Upon any termination, discontinuation or cancellation of Services or your Account, the following sections will survive: User Content, Payments, Feedback, Disclaimer of Warranty, Limitation of Liability, Dispute Resolution, Governing Law, and General Terms.

DISCLAIMER OF WARRANTY

ALL CONTENT, PRODUCTS, AND SERVICES ON THE SITE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY GUARANTEES OR WARRANTY. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

LIMITATION OF LIABILITY

NEITHER Pixel NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Pixel HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL Pixel’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO Pixel FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED DOLLARS (US$100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO Pixel, AS APPLICABLE.

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Pixel AND YOU.

Dispute Resolution

Our goal is to provide you with great service, so we will try our best to resolve any disagreements that you have with us. If we cannot, then you and we both agree to resolve disputes related to your use of the Services or these Terms (each, a “Claim”) in binding arbitration instead of court, except that (a) a Claim may be brought in small claims court if it so qualifies, and (b) either party may bring suit in court to enjoin the infringement or other misuse of intellectual property rights.

  • What is arbitration? Arbitration does not involve a judge or jury. Instead, a neutral person (the “arbitrator”) hears each party’s side of the dispute, and makes a decision that is finally binding on both parties. The arbitrator can award the same relief as a court could award, including monetary damages. While court review of an arbitration award is limited, if a party fails to comply with the arbitrator’s decision, then the other party can have the arbitration decision enforced by a court. If for any reason a Claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.
  • Can a Claim be part of a class action or similar proceeding? You agree to resolve your Claims with us solely on an individual basis, and not as part of a class, representative or consolidated action. We agree to do the same.
  • What rules apply in the arbitration? The arbitration will be conducted under the American Arbitration Association (“AAA”) Consumer Arbitration Rules (the “AAA Rules”). The AAA Rules are available at www.adr.org or by calling 1-800-778-7879.
  • How will the arbitration be conducted? How much does it cost? The arbitration will be conducted by the AAA or a comparable arbitration body in the event the AAA is unable to conduct the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. The arbitration shall be conducted in New York County.
  • How do I start an arbitration proceeding? To begin an arbitration proceeding against us, send a letter requesting arbitration and describing your Claim to help@pixel-ny.com. If we request arbitration against you, we will give you notice at the email address or street address you provided.
  • INSTRUCTIONS FOR OPTING-OUT OF ARBITRATION: If you do not agree to arbitrate your Claims as explained above, then you can opt-out of this arbitration agreement by notifying us of your decision in writing at help@pixel-ny.com. You must opt-out within 30 days of the date you first agree to these Terms or any updated Terms.

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

General Terms

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Pixel and you regarding the Services and Content; and these Terms supersede and replace any and all prior oral or written understandings or agreements between Pixel and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Dispute Resolution” section above or by a court of competent jurisdiction, but only if you timely opt-out of arbitration by sending us an opt-out email in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Pixel’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Pixel may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications provided by Pixel under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Waiver of Rights

Pixel’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Pixel. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Questions

If you have any questions about these Terms or the Services, please contact us at help@pixel-ny.com.