Pixability Customer Terms and Conditions
These terms and conditions (“Pixability T&Cs“) govern insertion orders (each, an “IO“) entered into between Pixability, Inc. (“Pixability“), on the one hand, and an “Advertiser” and/or its “Agency” (individually or collectively, the “Customer” and either or both as identified on the IO), on the other hand. Any and all IOs are subject to being accepted by Pixability in its sole discretion as evidenced by its approval or confirmation in writing (including by email). Upon acceptance of an IO by Pixability, these Pixability T&Cs and any accepted IO(s) are collectively referred to as the “Advertiser Agreement.” No reference or incorporation of any other terms and conditions (other than these Pixability T&Cs) that may be exchanged by or among the parties will have legal force or effect unless the parties to such IO agree in such IO in writing expressly to replace and supersede these Pixability T&Cs with such other terms and conditions. Capitalized terms used in this Advertiser Agreement not otherwise defined herein shall have the meaning as defined in the IO, or if not defined herein or in the IO, as reasonably understood by the nature and context in this Advertiser Agreement and/or the IO.
1. Services. (a) The IO, if accepted by Pixability, sets forth the pricing and other terms of each service Pixability agrees to perform for the Customer in accordance with any specifications expressly agreed in such IO (each, a “Service“). Any changes in specifications or Service type or level must be mutually agreed in writing in a supplemented or amended IO. In performing Services, Pixability may use certain content, information, tools and/or other technology or intellectual property rights used, developed, acquired and/or licensed by Pixability generally in the conduct of its business of performing Services for persons including the Customer (i.e., not sourced exclusively for performing the Services solely for Customer) (individually or collectively, the “Pixability Solution“). If Customer subscribes to direct access and use of the Pixability Solution, the Customer may designate users permitted to access the Pixability Solution (each, an “Authorized User“) as and to the extent permitted in the relevant IO or separately agreed in writing by the parties. Each Authorized User may be assigned or required to register for a non-transferable log-in ID and password, and must agree to comply with the “User Registration and Terms of Service” (or similar terms and conditions).
(b) The Services offered by Pixability may involve Pixability accessing Advertiser’s accounts with a third party service provider, network, exchange or platform (such as YouTube or other online channels, social media network, or forums as specified in the IO) (each, a “Third Party Platform“). Each Advertiser’s account on a Third Party Platform will be referred to as an “Advertiser’s Account.” Pixability will have the right to access Advertiser’s Account(s) to take any action Pixability deems appropriate in its reasonable discretion to perform the IO including administering bidding, allocating media budget, configuring settings, synching, collecting and analyzing data, and/or otherwise using any information and data accessible via the Advertiser’s Account. Advertiser’s user id and password, billing information, etc. that may be used or viewed via Advertiser’s Account(s) will be deemed Confidential Information (as defined below) of Advertiser, and use thereof will be limited to Pixability’s personnel who need to access and use Advertiser’s Accounts to fully perform the IO including for a reasonable period after concluding actual performance for billing, measurement and other purposes. Advertiser or Agency, as applicable, will be solely liable for costs and expenses arising out of Pixability’s use of Advertiser’s Accounts to perform any IO, which may include, for example in the case of YouTube, costs charged on a CPM, CPV or other basis as well as A.P.I access fees and other costs imposed by YouTube depending on the Service(s) performed. All costs and payments owing to Pixability (including media buys and/or other costs that may be advanced by Pixability instead of paid directly by Advertiser) will be paid by in accordance with the IO subject to Section 2 below.
(c) Pixability may provide a copy of an IO with Advertiser or Agency as verification of Pixability’s right and authorization to act on behalf of Advertiser as contemplated herein including if requested by a third party (such as YouTube or any other Third Party Platform) provided that Pixability will not reveal any financial terms with Customer. At no time during or after performance of any Services under any IO will Advertiser or Agency dispute the existence or validity of Pixability’s authorization and rights hereunder.
2. Payment. (a) For the purposes of the IO and this Advertiser Agreement, the following terms will have the following meanings:
“Billable Bookings” means the amount of actual spending for the benefit of the Customer on media placements or bookings made in connection with performance of the Services contemplated by the relevant IO, net of chargebacks, refunds, and other adjustments affecting the amount actually spent, and expressly excluding any VAT, sales, service, excise and similar taxes (other than any party’s income tax).
“Media Budget” means, as specified in the relevant IO or approved in writing (including by email) by Customer, the maximum amount of media spending (plus up to 10% overage) that Pixability is authorized to spend on the media buy portion of any Services performed by Pixability. Accordingly, unless specified in the IO, the Technical Fees and Management Fees (and any other fees, taxes, costs and/or disbursements paid or collected for any aspect of the Services that are not specifically the media buy) will not count against the Media Budget. Any increases to the Media Budget (beyond any 10% overage) must be approved in writing (including by email) by Customer.
“Management Fee” means the fees, as specified in the relevant IO, that is assessed by Pixability for performance of Services relating to the management of a media buy, placement, optimization or other flight or campaign.
“Technology Fee” means a fee that may, as specified in the relevant IO, be assessed by Pixability for the benefits availed by the Pixability Solution. Payment of the Technology Fee is not meant to allow for direct access and use of the Pixability Solution covered by such fee. (Pixability will generally not charge the Technology Fee on a duplicate basis if Customer is already paying for a then-active subscription and separate access right to the Pixability Solution that needs to be utilized.)
As specified in the relevant IO, the Management Fee or Technology Fee may be calculated as a percentage of a Customer’s Net Billable Bookings or, depending on the Service(s) performed, can be a one-time or recurring fixed or flat fee, or a hybrid thereof. Pixability may, when expressly agreed in the relevant IO, offer Services on a performance-based fee arrangement where the Customer would pay to Pixability a non-refundable and irrevocable amount of Media Budget, and Pixability would retain the balance as its Management Fee and/or Technology Fee after spending for any Billable Bookings (without any obligation to provide any breakdown or other accounting to Customer), all as agreed and specified in a relevant IO.
(b) Each of the Services must be, as indicated in the relevant IO: (i) paid upon Customer’s execution of the IO (subject to Pixability’s acceptance thereof); and/or (ii) paid when invoiced by Pixability in advance or arrears; in both cases, subject to and without duplication with any costs paid directly by Customer via the Advertiser’s Account(s) that may be used by Pixability in performing the IO(s). Any initial implementation, set-up or similar fees in the IO will be invoiced in the first invoice to Customer. Customer is responsible for paying all sales, use, excise and other taxes (other than Pixability’s income tax) which may be levied in connection with charging any fees hereunder (whether or not specifically itemized in any invoice or otherwise). Invoices may be sent by either e-mail or postal mail, or both. Payment is due within thirty (30) calendar days following the date of invoice, and must be in U.S. dollars. Customer will adhere to Pixability’s applicable payment instructions and policies if using credit cards, wire transfer or other payment method. Payments that are past due shall accrue interest at the rate of 1.5% per month compounded monthly (or, if less, the highest rate permitted by applicable law). All costs of collection, including reasonable legal fees and expenses, incurred by Pixability shall be borne by the Customer. No deduction or set off by Customer of any amounts payable to Pixability hereunder against any other obligations between or among the parties is permitted, including as between and among other IOs or against any other amount or liability that Pixability may owe to Advertiser or Agency or other third party.
(c) Invoicing and reporting is handled by Pixability using its own numbers and measurement processes as determined by Pixability in its sole discretion. Such processes may involve using account measurements and reporting made available by Third Party Platforms, in which case Pixability’s reporting and invoices may be subject to the timing of when such Third Party Platforms make available their numbers and measurements. Customer may use a third party to track performance upon the prior written consent of Pixability, which consent may be conditioned upon Customer and Pixability agreeing how to handle discrepancies or differences revealed by any such third party tracking, provided that, unless agreed or resolved differently by the parties, if a discrepancy showing under-delivery is alleged by Customer, then in lieu of a refund or other liability, Customer’s sole right and remedy shall be either re-performance of the relevant portion of a Service or placement of make-goods.
(d) In the case of any Agency listed on the IO, Agency and Advertiser will be jointly and severally liable for payments for all Services ordered under the IO and charged or invoiced by Pixability, irrespective of whether Agency’s “Advertiser client” is known to Pixability. Should sums not have been cleared to Agency, Agency will make every reasonable effort to collect and clear payment from such Advertiser client on a timely basis. Upon Pixability’s request, Agency will make available written confirmation of the relationship between Agency and its Advertiser client, which confirmation will include, for example, such Advertiser client’s appointing or acknowledging Agency as its agent to act on its behalf and/or the terms by which Agency has been or will be paid funds sufficient to cover the obligations under the relevant IO(s). Agency’s credit is established on an Advertiser client-by-client basis. Pixability may reassess the Agency’s credit as and when Agency fails to clear any Advertiser client’s proceeds (including as to other advertisers also represented by such Agency).
3. Ownership. (a) Customer acknowledges that Pixability and its licensors and suppliers own all right, title, and interest in the Pixability Solution, together with any software and hardware technology and infrastructure, as well as the business model and any data, data stores, reports, analyses and frameworks, and the proprietary methodologies and processes used to perform any Service. Pixability welcomes requests, instructions or other suggestions, but in making the same, Customer agrees that such suggestions will become the property of Pixability, and Pixability has no obligation to compensate Customer for such suggestions. In the event of a third party claim against either: (x) the Pixability Solution or any intellectual property therein or thereto; or (y) Pixability’s right to offer any Service (or if, in Pixability’s opinion, such a claim is likely), Pixability shall have the right, at its sole option, discretion, and expense, to: (i) secure the right to continue using the intellectual property or provide the Service; or (ii) use commercially reasonable efforts to replace or modify the same to make it non-infringing or without misappropriation, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing services provided hereunder; or (iii) terminate the provision of the portion that is or allegedly is infringing without further obligation or liability except a proportionate or appropriate adjustment to any future fees charged if such terminated portion is determined by Pixability to be material to the Pixability Solution or Service, as the case may be. The preceding constitutes Customer’s sole rights and remedies in the event of any actual or alleged third party claim.
(b) Any right on the part of Customer to use or enjoy the benefits of any Pixability Solution does not include a license or other rights to any of the underlying technology or data used to provide the Pixability Solution. Customer will not (i) encumber, transfer, sublicense, distribute, reproduce, create derivative works of or otherwise modify any products or services made available through access to the Pixability Solution, (ii) rent, lease, sell, assign or otherwise transfer rights in or to, or make available for timesharing, application service provider or service bureau use of, the Pixability Solution in whole or in any part, (iii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Pixability Solution, (iv) engage in any systematic extraction of data or data fields from the Pixability Solution, (v) disclose, harvest, or otherwise collect sensitive information, including unique identifiers, e-mail addresses, or other personal or personally identifiable information, about any third party without that party’s express consent, (vi) use the Pixability Solution in any manner contrary to the Pixability’s intent and purpose in offering the product and service offering or in conflict with applicable laws or established norms of industry conduct, standards or policies, or (vii) knowingly permit any third party, including any Authorized User, to do any of the foregoing.
4. Advertising Materials, etc. (a) Customer will deliver all advertising materials that may be required by Pixability in relation to performing any media buy or other Service under the IO (“Advertising Materials”) according to specifications required by Pixability and/or relevant Third Party Platform(s). Where such Advertising Material does not conform to technical specifications or does not arrive timely enough for the IO to be performed according to agreed dates, then Pixability may, in its sole discretion, (x) refuse to perform and refund any applicable amounts paid in advance; or (y) postpone performance until a reasonable period of time after either (i) the non-conforming Advertising Materials are corrected or (ii) the late-arriving Advertising Materials are received; provided that, in any and all such cases, Pixability may begin to charge the Customer on the IO start date on a pro rata basis based on the full IO for each full day the Advertising Materials are not received.
(b) Both Advertiser and any Agency (if any) are responsible for any liability arising out of or relating to any Advertising Materials as well as any material, site, application, service, transaction or other offering to which an end user can reach or effect through such Advertising Materials (“Linked Offerings”), and each represents and warrants that (x) no part of the Advertising Materials or Linked Offerings will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including laws and regulations governing export control, false advertising or unfair competition; (iii) be defamatory or libelous; (iv) be pornographic or obscene; or (v) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; and that (y) the product or service being promoted through any Advertising Materials is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
(c) Pixability accepts no responsibility for the policies or practices of any Third Party Platform or any enforcement by any third party thereof, including the classification or type of content it accepts whether now or in the future. Advertising Materials or Linked Offerings may be excluded or banned from any Third Party Platform or other resource at any time, or a Third Party Platforms may drop Advertising Materials or Linked Offerings or media placements from its database for no apparent or predictable reason; in either such event, Pixability’s only obligation will be to use reasonable efforts to re-submit resources to a Third Party Platform. Except in the case of Pixability’s willful misconduct or gross negligence, Customer agrees not to hold Pixability responsible for any liability or actions that may be taken by a Third Party Platform due to performance of Services under this Advertiser Agreement.
(d) Pixability reserves the right to reject or remove any Advertising Material at any time if Pixability determines in its sole discretion that such Advertising Material (or Linked Offerings) does not meet its standards or comply with the IO or with any applicable laws, industry guidelines, or the terms and conditions governing the relevant Third Party Platform. Pixability reserves the exclusive right to agree or disagree any strategies or techniques requested by Customer or presently employed by Customer that Pixability considers to be detrimental to the execution of any Services. Pixability also reserves the right to demand third party verification for any claims made in any Advertising Materials (or Linked Offerings) and to terminate any IO and/or this Advertiser Agreement in the event that such verification is not promptly provided or is unsatisfactory in Pixability’s sole discretion.
(e) In connection with performing Services, Customer hereby grants Pixability, or will obtain for Pixability’s benefit, the right to access, index, cache, reproduce, adapt, create derivative works of, and display the Advertising Materials, Linked Offerings, or Advertiser’s site(s) or other offerings, as well as any publicly available information about the same (including through automated means, such as web spiders or crawlers, or use of the Pixability Solution), and specifically (without limitation) includes the right to use text, graphics, images, audio, video, and other materials found thereon or therein, including to develop, source, reproduce and display descriptions, tags, and transcripts as well as thumbnails and full-scale copies of any images or video in performing any IO or to the full extent permitted by applicable law. Such right shall include the right to sublicense third party service providers to exercise the same rights in connection with performance of the Services. All materials developed or sourced by Pixability hereunder will be deemed to be “Advertising Materials” for the purposes of this Agreement upon Customer’s approval thereof and, absent Pixability’s willful misconduct or gross negligence, Pixability will not be liable or responsible for use or display of any such Customer-approved materials.
5. Confidentiality. Each of Advertiser and Agency, on the one hand, and Pixability, on the other hand, may provide the other party with information that is confidential and proprietary to such party or a third party (“Confidential Information“) provided all such Confidential Information shall be designated or labelled as such by the disclosing party. The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Notwithstanding anything to the contrary, the methodologies and processes used by Pixability to perform any Services, the Pixability Solution (including the results thereof and associated databases), any pricing terms in any IO, measurement processes, and any reporting or analytical models and templates produced by Pixability are deemed to be Pixability’s Confidential Information. No Advertising Materials will be deemed to be Confidential Information unless expressly marked as “confidential” with a date specified as to when it ceases to be Confidential Information. Confidential Information shall not include, even if designated as such by a party, information (a) that is or becomes part of the public domain through no act or omission of the receiving party, or (b) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Advertiser Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (c) that the receiving party had in its possession prior to the date of this Advertiser Agreement, or (d) is independently developed by the receiving party without use of the Confidential Information of the disclosing party.
6. Representations and Warranties. Customer represents, warrants and covenants that: (a) it has all rights necessary to authorize Pixability to access Advertiser’s Accounts and any information accessible thereon if and as contemplated by any IO and this Advertiser Agreement; and (b) it will comply with all applicable laws, rules, and regulations and common industry practices, policies and standards. Each party represents and warrants to the other party that: (x) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into the Advertiser Agreement and each IO; and (y) to its knowledge, the execution, delivery, and performance of this Advertiser Agreement and each IO does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violates any law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over it.
7. Disclaimer of Warranties. PIXABILITY PROVIDES ITS SERVICES (INCLUDING ANY PIXABILITY SOLUTION AND ANY ADVERTISING MATERIALS OR OTHER MATERIALS CREATED OR DEVELOPED BY PIXABILITY OR ITS LICENSORS OR SUPPLIERS) ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED PLACEMENT, DISTRIBUTION OR ACCESS, OR THAT ANY SERVICES OR ANY SERVERS AND SOFTWARE ARE ERROR-FREE OF FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS, ALTERATION OF, OR IMPROPER ACCESS TO INFORMATION OR MATERIALS. IN THE EVENT OF INTERRUPTION OF ANY SERVICE, PIXABILITY’S SOLE OBLIGATION WILL BE TO RESTORE SUCH SERVICE AS SOON AS REASONABLY PRACTICABLE AND REPERFORM THE INTERRUPTED SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ADVERTISER AGREEMENT, PIXABILITY HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT.
8. Limitation on Liability. EXCEPT IN THE CASE OF PIXABILITY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, PIXABILITY SHALL IN NO EVENT BE LIABLE UNDER THIS ADVERTISER AGREEMENT OR ANY IO(S), WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT (INCLUDING INDEMNIFICATION), RESTITUTION, MISREPRESENTATION, OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY IO(S), EVEN IF PIXABILITY WAS ADVISED OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL PIXABILITY BE LIABLE TO THE ADVERTISER AND AGENCY AND ANY THIRD PARTIES (AS APPLICABLE) UNDER ANY IO FOR AN AMOUNT GREATER THAN THE AMOUNTS OF FEES ACTUALLY RECEIVED BY PIXABILITY UNDER SUCH IO DURING THE THREE MONTHS PRIOR TO THE INCIDENT THAT OCCURRED. THE PRECEDING SENTENCE WILL NOT AFFECT ANY RECOVERY THAT MAY BE AVAILABLE UNDER ANY APPLICABLE INSURANCE THEN CARRIED BY PIXABILITY (NET OF ANY OF RECOVERY AVAILABLE TO CLIENT UNDER ITS OWN INSURANCE POLICIES) AS MAY BE DETERMINED BY THE INSURANCE CARRIERS UNDER THE TERMS OF THE APPLICABLE POLICIES.
9.Term; Termination.(a) This Advertiser Agreement shall commence as of the date of the first IO with a Customer that has been accepted by Pixability and continue until the last active IO, subject to any new IO that may be entered into by the parties incorporating these Pixability T&Cs by express reference (the “Term“), unless terminated earlier in accordance with terms of this Advertiser Agreement.
(b) Notwithstanding the foregoing, Pixability may terminate this Advertiser Agreement and/or any associated IOs in whole or in part: (i) by providing Advertiser with ten (10) days’ prior written notice; and (ii) immediately if Pixability is no longer providing the Services specified in the IO. At any time prior to the commencement of performance under an IO, Advertiser or Agency may cancel such IO upon at least thirty (30) days’ prior written notice, without penalty. (For clarity and by way of example, if Advertiser or Agency cancels an IO twelve (12) days prior to commencement of performance, Advertiser will nonetheless be responsible for the first eighteen (18) days of the IO.)
(c) Either party may terminate any IO upon written notice if the other party breaches any of its material obligations hereunder and fails to cure such breach within thirty (30) days after receiving written notice describing the breach. For the avoidance of doubt, a breach of Advertiser’s payment obligations shall constitute a material breach of this Advertiser Agreement. Pixability may, in lieu of terminating an IO and/or this Advertiser Agreement, suspend any of the Services being performed under an IO upon written notice to Customer if such Customer or another party, such as the Agency or Advertiser, materially breaches any term or condition of this Advertiser Agreement. Such suspension is without limitation of any other right or remedy of Pixability arising out of the breach including termination. Notwithstanding the foregoing, Pixability may terminate this Advertiser Agreement immediately with notice should Advertiser: (i) engage in illegal activity of any type; (ii) breach any IO or other agreement with Pixability; (iii) be a party to a suit involving Pixability; (iv) become insolvent; (v) make an assignment for the benefit of creditors; (vi) cease to do business as an ongoing concern; or (vii) file a petition or have a petition filed against it under any bankruptcy or insolvency laws.
(d) Upon expiration or any termination of this Advertiser Agreement and related IO(s), Advertiser and Agency will immediately cease all access to and use of Pixability’s Services and each party shall promptly return all of the other party’s Confidential Information in its possession, provided that there is no obligation to return any Confidential Information retained electronically in the ordinary course provided such Confidential Information shall continue to be held confidential in accordance herewith. Termination of an IO does not relieve either party of any other obligations under such IO that accrued by the effective time of such termination or its obligations under the Advertiser Agreement or any other IO. Any provision which expressly or by its nature are to continue after termination or expiration, and all accrued payment obligations, shall survive expiration or termination of the IO. Notwithstanding anything to the contrary contained herein, this Advertiser Agreement shall continue in effect so long as there remains any active IO between Pixability, on the one hand, and either the Advertiser or Agency, on the other hand.
10.Indemnification. (a) Each of Advertiser and any Agency (if any) agrees to indemnify, defend, and hold harmless Pixability, any and all of its affiliated entities and its and their affiliates, directors, officers, employees, agents and representative for and from any claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (i) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including its respective representations and warranties herein), (ii) the content or subject matter of any Advertising Materials or Linked Offerings, or (iii) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the IO.
(b) Pixability agrees to indemnify, defend, and hold harmless the Advertiser for any claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) made against the Customer by a third party resulting from or arising out of any acts of gross negligence or willful misconduct by Pixability.
(c) Agency (if any is listed in the IO) represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to the Advertiser Agreement including the IO, and that all of Agency’s actions related to this Advertiser Agreement will be within the scope of such agency, and Agency will defend, indemnify, and hold harmless Pixability and any and all of its affiliated companies and its and their affiliates, directors, officers, employees, agents and representatives from claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of Agency’s alleged or actual breach of the foregoing sentence.
11.Relationships of Parties. The relationships of the parties shall be solely that of independent contractors, and nothing in this Advertiser Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. There are no third party beneficiaries to this Advertiser Agreement. Pixability is not obligated to and shall not provide Advertiser with tax and/or legal advice. Pixability undertakes no duty to investigate or research Advertiser’s tax status and/or obligations, and such research and investigation is the sole responsibility of Advertiser. Advertiser is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to end users. Customer acknowledges that Customer and its designated employees and other agents may receive (and may not opt-out of) communications from Pixability about Pixability and its products and services through any contact information provided thereby.
12.Publicity. Except to the extent necessary under applicable law, neither party shall publicly announce the relationship contemplated in this Advertiser Agreement, in a press release or other form of publicity, without the prior written approval of the other party. Notwithstanding the foregoing, Pixability may include the Advertiser’s name in a published list of customers/partners or similar reference.
13. Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Advertiser Agreement in writing via overnight mail, international express mail by an internationally recognized courier, or facsimile: (a) to Pixability at Pixability, Inc., Attn: Legal Department, 123 North Washington Street, Boston MA 02114; and (b) for Advertiser, at the address, email, or facsimile number listed on the IO. Notices shall be effective the earlier of the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.
14. Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including electrical outages, failure of Internet service providers, default due to Internet disruption, (including denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of nature.
15. Entire Agreement, etc.. This Advertiser Agreement contains the entire agreement and understanding of the parties and supersedes all prior agreements and understandings between the parties, whether oral or written, regarding the subject matter hereof. Neither party may assign this Advertiser Agreement without the other party’s prior express written consent, except that Pixability may freely assign this Advertiser Agreement in any corporate reorganization or to any successor to the all or substantially all of the assets and business of Pixability (whether by stock purchase, asset purchase, merger or at law or in equity) upon prior written notice to Advertiser. The words “hereby”, “herein”, “hereof”, “hereunder” and words of similar import refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which such word appears. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation” or “but not limited to.” If any provision of this Advertiser Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions of this Advertiser Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the parties’ stated intentions. The waiver of any breach of any provision by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. Each and any IO may be signed in counterpart.
16. Choice of Law/Attorneys’ Fees. This Advertiser Agreement shall be governed by the laws of the Commonwealth of Massachusetts without respect to choice of law rules and the parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Suffolk County, Massachusetts for such purpose. The parties waive the personal service of any process upon them and agree that service may be affected by overnight mail, using a commercially recognized service, or by U.S. mail with delivery receipt to the address stated in this Advertiser Agreement. Pixability shall be entitled to recover all reasonable costs of collection, including attorneys’ fees, in-house counsel costs, expenses and costs, incurred in attempting to collect payment from Advertiser.