This PixelTrakk Service Agreement (this "Agreement") sets forth the terms and conditions under which PixelTrakk, ("PixelTrakk or "we" or "our"), makes available its website data collection, tracking, analysis and reporting service, as further described in this Agreement (the "Service"). Please read this Agreement carefully. It constitutes a binding legal agreement between you and PixelTrakk.
YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE "I AGREE" OR "I ACCEPT" BUTTON YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, "you" and "your" will refer to that company or other legal entity.
PixelTrakk reserves the right, at its sole discretion, to modify or terminate the Service or to modify this Agreement, at any time and without prior notice. If we modify the Service or this Agreement, we will post the modification on the PixelTrakk website (the "Site") or provide you with notice of the modification. PixelTrakk will also update the "Last Updated Date" at the top of the home page of the Site. By continuing to access or use the Service after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to use the modified Service and/or to be bound by the modified Agreement. If the modified Service or Agreement is not acceptable to you, your only recourse is to cease using the Service.
Subject to your compliance with the terms and conditions of this Agreement, PixelTrakk hereby grants you a non-exclusive license, with no right to sublicense, to copy and install the PixelTrakk Client Application on any website that you own or control or operate on behalf of a third party for the sole purpose of using the Service in connection with such websites. The foregoing license includes the right to use any documentation and other materials provided by PixelTrakk to enable you to use the PixelTrakk Client Application and to access and use the Service to view analytical reports generated by the Service for such websites.
You will not nor will you allow any third party to (i) modify, adapt, translate or otherwise create derivative works based on the PixelTrakk Client Application or the Service; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the underlying ideas, algorithms, structure or organization of the PixelTrakk Client Application or the Service; (iii) rent, lease, sell, assign, distribute or otherwise transfer rights in the PixelTrakk Client Application or the Service or offer the Service on a timesharing, service bureau or hosted service basis; or (iv) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the PixelTrakk Client Application or the Service. You will comply with all applicable laws and regulations in your access to and use of the PixelTrakk Client Application and the Service.
PixelTrakk makes the Service available at no charge. However, PixelTrakk reserves the right, at any time, to modify the Service and this Agreement by beginning to charge fees and establish payment terms (or to change its then-current fees or payment terms) for use of the Service. If PixelTrakk decides to charge fees and establish payment terms (or to change its then-current fees or payment terms) for use of the Service, any such modification to the Service and this Agreement will be effective in accordance with the terms of the "Modification" paragraph above.
In order to use the Service you must register to create an account ("Account"). During the registration process, you will be required to provide certain information to us and you will establish a username and a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. PixelTrakk reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify PixelTrakk of any unauthorized use of your Account. By signing up for PixelTrakk you agree that PixelTrakk may send you occasional emails relevant to your use of the PixelTrakk service.
You have the exclusive right to use all Website Visitor Data and all reports based on Website Visitor Data generated by the Service, for any purpose related to your business. Notwithstanding the foregoing, you acknowledge and agree that PixelTrakk may at any time and in its sole discretion: (i) use any or all Website Visitor Data internally as needed to troubleshoot issues or improve the Service; (ii) use anonymized and aggregated Website Visitor Data for its internal use; (iii) use anonymized, aggregated Website Visitor Data within the Service for all PixelTrakk customers; and (iv) share anonymized, aggregated Website Visitor Data for marketing purposes.
The PixelTrakk Client Application and the Service are protected by copyright, trademark, and other laws of the United States and foreign countries. PixelTrakk and its licensors exclusively own all right, title and interest in and to the PixelTrakk Client Application and the Service, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the PixelTrakk Client Application or the Service.
If you breach any of this Agreement, PixelTrakk will have the right to suspend or disable your Account or terminate this Agreement, at its sole discretion and without prior notice to you. PixelTrakk reserves the right to revoke your access to and use of the Service at any time, with or without cause. You may cancel your Account at any time by sending an email to [email protected]. Upon any termination of this Agreement or cancellation of your Account, you will promptly destroy all originals and copies of the PixelTrakk Client Application in your possession or control and so certify in writing to PixelTrakk and cease any further use of the PixelTrakk Client Application and the Service.
THE PIXELTRAKK CLIENT APPLICATION AND THE SERVICE ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PIXELTRAKK DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PIXELTRAKK MAKES NO WARRANTY THAT THE PIXELTRAKK CLIENT APPLICATION OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PIXELTRAKK OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold PixelTrakk, its owners, officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or relating to: (i) your use of or access to the PixelTrakk Client Application or the Service: (ii) your breach of this Agreement; or (iii) your violation of applicable laws, rules or regulations in connection with your use of the Service.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PixelTrakk CLIENT APPLICATION AND THE SERVICE REMAINS WITH YOU. NEITHER PixelTrakk NOR ANY OTHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL), OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PixelTrakk CLIENT APPLICATION OR THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PixelTrakk 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.
IN NO EVENT WILL PixelTrakk' AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PixelTrakk CLIENT APPLICATION OR THE SERVICE EXCEED THREE HUNDRED U.S. DOLLARS ($300). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PixelTrakk AND YOU. 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.
All trademarks, service marks, logos, trade names and any other proprietary designations of PixelTrakk used herein are trademarks or registered trademarks of PixelTrakk. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
This Agreement and any action related thereto will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the federal or state courts located in the State of Florida and each of the parties hereto consents to the personal jurisdiction and venue in such courts.
This Agreement constitutes the entire and exclusive understanding and agreement between PixelTrakk and you regarding the PixelTrakk Client Application and the Service, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between PixelTrakk and you regarding the Service.
You may not assign or transfer this Agreement, by operation of law or otherwise, without PixelTrakk' prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null and of no effect. PixelTrakk may assign or transfer this Agreement, at its sole discretion, without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to this Agreement, will be in writing and given: (i) by PixelTrakk via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of PixelTrakk to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that 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 PixelTrakk. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
If you have any questions about this Agreement, please contact PixelTrakk at [email protected].