Website Terms of Use

Website Terms of Use

Last Updated: October 10, 2023

The Pixel Prophet, L.L.C. and its affiliates (“TPP”, “we”, “us”, or “our”) operate and maintain the website and its subpages linked to this Terms of Use (the “Site”). TPP or the merchant, business, or other entity whose goods, services, or other offerings are identified and advertised on the Site (the “Merchant”) provides the information, content, features, and related services available through the Site (collectively, the “Services”) to you, subject to these Terms of Service (these “Terms”). These Terms establish the terms, conditions, rights, and responsibilities applicable to your access to and use of the Site and Services.

PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION SET FORTH IN SECTION 17 BELOW (“ARBITRATION AND DISPUTE RESOLUTION AGREEMENT”), AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR USE OF THE SITE AND SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THE ARBITRATION AND DISPUTE RESOLUTION AGREEMENT, AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES (INCLUDING, WITHOUT LIMITATION, BY SUBMITTING ANY CONTENT TO THE SITE OR REGISTERING AN ACCOUNT ON THE SITE), YOU ARE AGREEING TO COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE SITE OR SERVICES.

1. THE SITE

The Site is made available by TPP on behalf of the Merchant whose goods, services, or other offerings are identified and advertised on the Site (the “Merchant Offerings”). The Site is intended to provide you with general information, testimonials and other promotional content, and such other Services as may be made available from time to time in relation to the Merchant and the Merchant Offerings.

2. CHANGES TO THE SITE AND THESE TERMS

We expressly reserve the right to make any changes that we deem appropriate from time to time to the Site and/or Services. We reserve the right at any time to modify or discontinue the Site or Services (or any part thereof) without notice. To the maximum extent permitted under applicable law, we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services.

In addition, we may change these Terms at any time, and all such changes are effective immediately upon notice, which we may give by any means, including, but not limited to, by sending a message to the email address that we have on file for you (if any) or posting a revised version of these Terms or other notice on the Site. You should view these Terms often to stay informed of changes that may affect you. Your use of the Site and Services constitutes your continuing agreement to be bound by these Terms, as they are amended from time to time.

3. PRIVACY POLICY

Information that you provide to us or that we collect about you through your access to and use of the Site or Services is subject to our Privacy Policy, the terms of which are hosted at www.thepixelprophet.com/privacypolicy hereby incorporated by reference into these Terms. We encourage you to read and become familiar with our Privacy Policy.

4. AGE REQUIREMENTS

No one under the age of 18 may access or use the Site or Services unless supervised by a parent or legal guardian who is bound by these Terms. By accessing or using, or attempting to access or use, the Site or Services, you represent that you are at least 18 years of age and that you are able to enter into legally binding contracts, including, without limitation, these Terms (or, if you are under 18 years of age, that your parent or legal guardian has reviewed and agrees to be bound by these Terms on your behalf).

5. CONTENT AND INTELLECTUAL PROPERTY

5.1  The content and other materials displayed or made available on or through the Site and Services, including, without limitation, text, information, data, content, articles, photos, images, graphics, and illustrations (collectively, the “Content”), are protected by copyright and/or other intellectual property laws. You agree to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Site and Services, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including, but not limited to, our, the Merchant’s, or any other third party’s) rights.

5.2  You understand and agree that we, the Merchant, and/or our or its respective licensors own all right, title, and interest in and to the Site, Services, and all Content. You acknowledge and agree that the Content may constitute valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using the Site, Services, or Content. Such intellectual property and proprietary rights may include, but are not limited to, copyrights, trademarks and service marks, trade dress, and trade secrets, and all such rights are the property of TPP, the Merchant, and/or our or its respective licensors and Content-providers.

5.3  Notwithstanding anything herein to the contrary, you expressly acknowledge and agree that TPP shall not be responsible for any Content, Services, or Merchant Offerings offered, sold, provided, or otherwise made available by the Merchant. The Merchant is the supplier of all informational and promotional Content on the Site (other than User Submissions, as defined below) and is solely responsible for all such Content, as well as for all Merchant Offerings (whether provided through the Site or otherwise) and for the fulfillment of all obligations relating thereto. TPP merely maintains the Site and certain Services to enable the Merchant to market and promote the Merchant Offerings to you and other users. TPP does not verify, validate, endorse, or guarantee any Services of Merchant or Merchant Offering displayed, described, offered, or sold on the Site. Without limiting any of the foregoing, TPP expressly disclaims any warranty related to the accuracy, completeness, truthfulness, reliability, or legality of any Content supplied by the Merchant.

5.4  By submitting suggestions or other feedback regarding the Site or Services, you agree that TPP and the Merchant can use and share (with no obligation to do so) such feedback for any purpose without compensation to you. You agree to only provide content or information that does not violate the law nor anyone’s rights (including, without limitation, intellectual property rights).

6. USER CONDUCT

You may access and use the Site only in connection with your use of the Services and Content as permitted herein and only for your personal use. Any other access to or use of the Site constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws.

In accessing and using the Site, Services, or any Content, you agree that you will comply with all applicable federal, state, and local laws, including, without limitation, copyright and other intellectual property laws, data privacy laws, cyber harassment laws, anti-spam laws, and other regulatory requirements.

In addition, in accessing and using the Site, Services, or any Content, you agree that you will NOT:

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  Circumvent, disable, or otherwise interfere with any security-related features of the Site or Services, including, without limitation, any features that enforce limitations on the use of the Site, Services, or any Content;
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  Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, Services, or Content;
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  Copy, modify, adapt, translate, or create derivative works based on the Site, Services, or Content;
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  Reproduce, redistribute, duplicate, sell, resell, lease, sublicense, time-share, or exploit for any commercial purpose any portion of the Site, Services, or Content, except as permitted hereunder or otherwise expressly authorized by us in writing;
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  Remove, alter, cover, or distort any copyright notice or trademark legend, author attribution, or other notice placed on or contained within the Site, Services, or any Content;
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  Access, use, or copy any portion of the Site, Services, or Content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms;
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  Use the Site or Services to store or transmit viruses, worms, time bombs, Trojan horses, or other malicious code, or any unsolicited messages, “spam” or any other content or material in violation of applicable law;
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  Attempt to interfere with the proper working of the Site or Services or otherwise impairing, overburdening, or disabling the same; or
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  Otherwise engage in any conduct that restricts or inhibits any other user or third party from using or enjoying the Site or Services.

7. USER SUBMISSIONS

7.1  The Site may permit you to submit, upload, or otherwise provide your comments, inquiries, suggestions, testimonials, reviews, feedback, or other information or content regarding your experience with the Merchant or Merchant Offerings (“User Submissions”). By submitting, uploading, or otherwise providing to us, the Merchant, or the Site any User Submissions, you grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to use, copy, edit, modify, translate, reformat, create derivative works of, display, perform, publish, distribute, and otherwise act with respect to your User Submissions, alone or as part of other works in any form, media, or technology, whether now known or hereafter developed, as we deem necessary to: (i) provide the Site, Services, and Content; and (ii) otherwise support our and/or the Merchant’s businesses, including, without limitation, to further market, develop, and improve the Site, Services, Content, and Merchant Offerings, to create, develop, and/or improve other products and services, and to conduct research and analytics. You waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding your User Submissions that you may have under any applicable law under any legal theory. You represent and warrant that you own, or otherwise have all rights, permissions, and authorizations necessary to grant to TPP the foregoing license and rights under, your User Submissions, and that such use by us or the Merchant will not infringe or otherwise violate any copyright, trademark, right of publicity, or any other intellectual property or proprietary rights of any third party.

7.2  You are solely responsible for all of your User Submissions and for ensuring that they comply with these Terms and any applicable laws. By submitting or uploading your User Submissions, you accept sole liability and responsibility for any of your User Submissions that do not comply with these Terms and/or any applicable laws. Your User Submissions violate these Terms and are prohibited from the Site if they:

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  are harassing, threatening, abusive, libelous, defamatory, untruthful, misleading, or invasive of privacy or publicity rights;
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  contain hateful, violate, or racist terms or images or symbols, or glamorize the actions of individuals or groups advocating violence, ethnic cleansing, genocide, or similar activities;/li>
• include or reveal the personal information of another person;
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  contain a formula, instruction, or advice that could cause harm or injury;
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  do not relate to the Merchant or Merchant Offerings and/or your experience as a customer of Merchant;
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  are vulgar, obscene, profane, pornographic, or otherwise objectionable or in bad taste, as determined by us in our sole discretion; or
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  constitute or encourage conduct that would constitute fraud, a criminal offense, or infringement or violation of another person’s intellectual property or proprietary rights, give rise to civil liability, or otherwise violate any applicable law or regulation.

7.3  We have the right, but do not assume the obligation or responsibility, to review and monitor User Submissions, and to determine whether they comply with these Terms and applicable laws. In addition, we have the right in our sole discretion and for any reason whatsoever to edit, refuse to post, refuse to store, remove, or disable access to any User Submissions, including without limitation any User Submissions that constitute, or are likely to constitute, an infringement, misappropriation, or other violation of any copyright, trademark, right of publicity, or any other intellectual property or proprietary rights of any third party. We assume no liability for any User Submission that appears or is removed from the Site or elsewhere. We have no obligation to use any User Submission and may not use it at all.

7.4  Any User Submission of any kind made by you or any other user or third party is made by the respective author(s) or distributor(s) and not by TPP. Other users and third parties may submit or post User Submissions that are inaccurate, misleading, or deceptive. We do not endorse and are not responsible for any User Submissions, and will not be liable for any loss or damage caused by your reliance on such User Submissions. A User Submission reflects the opinion of the person submitting it and may not reflect the opinion of TPP or the Merchant. Without limiting the foregoing, TPP specifically disclaims any liability concerning or relating to your contribution of, use of, or reliance on any User Submission and any actions resulting from your participation in any part of the Site, including, without limitation, any objectionable User Submission.

8. USER ACCOUNTS

8.1  In order to access and use certain parts of the Site and Services, you may be asked and required to register and maintain an active account on the Site (“Account”). To set up an Account, you may be asked to provide certain information about yourself, such as your first and last name, physical address, email address, phone number, and payment card and billing information. You may also need to create a username and password for your Account and acknowledge and agree to these Terms and the terms of our Privacy Policy. You must provide complete and accurate information when setting up an Account.

8.2  You are responsible for maintaining the confidentiality of your password and Account. You agree to: (i) use a strong password and keep your password confidential and not share it with anyone else; (ii) not transfer any part of your Account to anyone else; and (iii) immediately notify us of any unauthorized use of your username, password, or Account.

8.3  You agree at all times to keep current and promptly update your Account information, including, but not limited to, your email address, phone number, and billing information, so that we can complete any transactions you make through your Account and contact you as necessary. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services and/or suspension or termination of your Account.

8.4  You acknowledge and agree that we are authorized to act on instructions received through use of your username, password, and/or Account, and that we may, but are not obligated to, deny access or block any transaction made through use of your username, password, and/or Account without prior notice if we believe your username, password, and/or Account are being used by someone other than you, or for any other reason. You are solely responsible for all activity that occurs under your Account unless you close it or report misuse.

9. TERMS OF SALE

9.1  If the Site enables you to purchase or place orders for Merchant Offerings via the Site, the terms of this Section 9 shall apply to any such purchase or order (each, a “Transaction”). To place an order, you may be required to register an Account and/or provide certain information about yourself, including your first and last name, email address, phone number, shipping and billing address, and credit card or other payment information. You must provide current, complete, and accurate contact and payment information for all Transactions made through the Site.

9.2  By placing an order for Merchant Offerings using the Site, you make a binding offer for a contract of sale with the Merchant. For the avoidance of doubt, each Transaction will be between you and the Merchant (and not TPP). The Merchant is the seller and provider of all Merchant Offerings and will be solely responsible to you for fulfilling the terms of each Transaction. Your order is not complete until the Merchant sends you an email to confirm the Transaction. The Merchant reserves the right, without prior notice, to reject your offer, to refuse to conclude a Transaction with you or any user, and/or to limit the order quantity on any Merchant Offering. Neither TPP nor the Merchant guarantees the continued availability of any Merchant Offerings found on the Site. The Merchant may also require verification of information prior to the confirmation or acceptance of any Transaction.

9.3  You agree to pay the full amount of the fees charged to you under each Transaction. You may choose to pay for purchases made through the Site by credit card or any other payment method that may be supported by the Site from time to time. By placing an order on the Site, you expressly authorize the Merchant, or a third-party payment processor on its behalf, to charge the method of payment that you have provided and to collect the full amount of the total fees for the Merchant Offerings you purchase, including any applicable taxes and shipping or related charges. The Merchant may calculate taxes payable by you (if any) based on the billing information that you have provided at the time of purchase. All purchases are non-refundable and non-cancellable unless the Merchant’s return and exchange policy expressly indicates otherwise.

9.4  The processing of your payments will be subject to the terms, conditions, and privacy policies of the Merchant’s third-party payment processor. You agree that neither TPP nor the Merchant will be responsible for any failures of the third-party payment processor to adequately protect your payment information. You acknowledge that the Merchant may change the third-party payment processor at any time, with or without notice to you, and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security.

9.5  If applicable, shipping and tracking options for delivery of the purchased Merchant Offerings will be indicated at checkout. Unless expressly indicated otherwise, you are responsible for shipping charges, which will be displayed at checkout and may depend on variables such as order value and shipping destinations. When Merchant Offerings are delivered to the shipping address provided at checkout, risk of loss and legal title to those Merchant Offerings will transfer to the recipient.

9.6  The Merchant may accept returns or exchanges of certain Merchant Offerings purchased on the Site in accordance with the Merchant’s return and exchange policy. To arrange a return or exchange (if permitted), please contact the Merchant directly using the contact information provided on the Site. Proof of purchase is necessary.

9.7  You understand and agree that the Merchant, and not TPP, is solely responsible for the accuracy, completeness, truthfulness, reliability, and legality of all Merchant Offering descriptions, information, and pricing described or depicted on the Site. All Merchant Offering descriptions, information, and pricing are subject to change at any time without notice. While we and the Merchant will strive to ensure that all descriptions, information, and pricing on the Site are complete, accurate, and current, they may occasionally be inaccurate, incomplete, or outdated. Neither TPP nor the Merchant makes any representation or warranty as to the accuracy, completeness, or currency of any descriptions, information, or pricing on the Site. For example, Merchant Offerings included on the Site may be unavailable or may actually carry a different price than that stated on the Site. The inclusion of any Merchant Offerings on the Site at a particular time does not imply or warrant that these Merchant Offerings will be available at any time.

10. TERMINATION OF ACCESS

10.1  We may, in our sole discretion, without liability, and without notice to you, immediately suspend, limit, and/or terminate your access to the Site, the Services, and/or your Account for any reason, including, without limitation: (i) if we believe in our sole discretion that you have violated these Terms or any applicable laws or regulations; (ii) at the request of law enforcement, government agencies, or courts; (iii) if you ask us to close your Account; (iv) if we discontinue or materially modify the Site or the Services (or any part thereof); or (v) if we believe in our sole discretion that your use or access to the Site, the Services, or your Account may create risk (including, but not limited to, legal risk) for us, the Merchant, our respective affiliates or contractual partners, or other users. Upon any termination, you will lose the right to access and use the Site and Services and your Account will be closed.

10.2  Any suspension or termination shall not affect your obligations to us and the Merchant under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your access to or use of the Site, Services, and/or your Account, shall survive including, but not limited to, the “Content and Intellectual Property”, “User Submissions”, “Terms of Sale”, “Indemnification and Release”, “Disclaimers”, “Limitation of Liability”, “Arbitration and Dispute Resolution Agreement”, and “Miscellaneous” sections of these Terms.

11. TESTIMONIALS

The Site contains Content and marketing information that is intended to cast the Merchant in the best possible light. Such Content has not been verified by TPP and may have been written by other users and members of the general public whose identity has not been verified or confirmed by TPP. We undertake no obligation to review, screen, investigate, or verify any such Content. Testimonials, reviews, and endorsements appearing on the Site are presented with the objective of presenting only positive recommendations and reviews from highly satisfied consumers and may not be representative of prevailing consumer sentiment or suitable for your use. Negative review content is not generally posted but is often delivered directly to the Merchant so that the Merchant is made aware of constructive or negative feedback and reviews. All content should be considered unverified and may be biased or untrue.

12. MERCHANT OFFERINGS AND THIRD-PARTY SERVICES

You acknowledge and agree that the Merchant is the seller and provider of all Merchant Offerings and is solely responsible to you for the care and quality of the Merchant Offerings and for any and all injuries, illnesses, damages, claims, liabilities, and costs it may cause you to suffer, whether directly or indirectly. We have no control over and do not endorse the Merchant or any Merchant Offerings, and in no event shall we be responsible or liable for any conduct of or interactions you may have with the Merchant (whether or not related to the Site or Services) or for your use of any Merchant Offerings.

In addition, the Site and Services may be made available or accessed in connection with third-party services and content that we do not control. We will not be responsible or liable for your use of any such third-party services or content or for the conduct of, or interactions you may have with, any third-party provider of the same. You acknowledge that different terms of use and privacy policies may apply to your use of third-party services and content.

13. SECURITY AND NETWORK ACCESS

TPP takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from the Site. Nevertheless, we cannot and do not guarantee that any such transmissions are or will be totally secure. You are responsible for maintaining the confidentiality of any information about you, including, without limitation, any username and password used in connection with your use of the Site. You agree to notify us immediately if you discover loss of or access to such information by another party not under your control or supervision.

You are responsible for acquiring and updating compatible hardware, software, or devices necessary to access and use the Site and Services and any updates thereto. We do not guarantee that the Site or Services, or any portion thereof, will function on or with any particular hardware, software, or device. The Site and Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

14. INDEMNIFICATION AND RELEASE

You agree to indemnify and hold harmless TPP, its affiliates, and its and their respective officers, directors, owners, employees, contractors, and agents (collectively, the “Indemnified Parties”) and the Merchant from and against any and all claims, demands, losses, liabilities, damages, costs, and expenses (including attorneys’ fees and costs) (collectively, “Claims”) arising out of or relating to: (i) your use of the Site or Services; (ii) your breach or violation of any of these Terms; (iii) your User Submissions; or (iv) your violation of any applicable law or regulation. Further you agree to indemnify and hold harmless the Indemnified Parties from and against any and all Claims arising out of or relating to: (x) your use of any Merchant Offerings; or (y) any Transaction, relationship, interaction, or dispute that you may have or enter into with the Merchant.

Without limiting any of the foregoing, you acknowledge and agree that you are solely responsible for your relationship and interactions with the Merchant. To the maximum extent permitted under applicable law, you hereby release the Indemnified Parties from any and all claims or liability related to any Content or Services provided by the Merchant, any Merchant Offering, any action or inaction by the Merchant, including, without limitation, any harm caused to you by any action or inaction of the Merchant or the Merchant’s failure to comply with applicable law, and any conduct, content, posting, or User Submission of any other user or third party.

15. DISCLAIMERS

15.1  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SITE, SERVICES, AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE INDEMNIFIED PARTIES AND THE MERCHANT EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTIES THAT THE SITE, SERVICES, AND/OR CONTENT WILL MEET YOUR REQUIREMENTS OR SATISFACTION; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE SITE, SERVICES, AND/OR CONTENT; (C) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES CONCERNING THE CAPACITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, SERVICES, AND/OR ANY CONTENT; (E) WARRANTIES THAT YOUR USE OF THE SITE, SERVICES, AND/OR ANY CONTENT WILL BE SECURE OR UNINTERRUPTED; AND (F) WARRANTIES THAT THE SITE, SERVICES, AND/OR ANY CONTENT WILL BE ERROR-FREE OR THAT ERRORS IN THE SITE, SERVICES, AND/OR ANY CONTENT WILL BE CORRECTED. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES WITH RESPECT TO THE MERCHANT, ANY SERVICES OR CONTENT PROVIDED BY THE MERCHANT, OR ANY MERCHANT OFFERINGS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR SERVICES.

15.2  ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITE OR SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DISCONTINUATION OF USE OF THE SITE AND SERVICES IS YOUR SOLE RIGHT AND REMEDY FOR ANY DISSATISFACTION WITH THE SITE, SERVICES, OR ANY OF THE CONTENT.

16. DISCLAIMERS

16.1  We may use third parties to provide certain features and services accessible through the Site and Services. WE WILL NOT BE LIABLE TO YOU FOR THEIR ACTS OR OMISSIONS. IN ADDITION, IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF RELATING TO ANY MERCHANT OFFERINGS, THE CONDUCT OF THE MERCHANT OR ANY OTHER USER, OR YOUR RELATIONSHIP, TRANSACTIONS, INTERACTIONS, OR DISPUTES THAT YOU MAY HAVE WITH THE MERCHANT OR ANY OTHER USER, INCLUDING CLAIMS RELATING TO FALSE ADVERTISING, PERSONAL OR BODILY INJURIES, ILLNESSES, DAMAGES, OR DEATH.

16.2  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WILL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE SITE, SERVICES, OR ANY CONTENT UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SITE, SERVICES, AND ANY CONTENT, SHALL IN ALL EVENTS BE LIMITED TO ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY THE LAW.

17. ARBITRATION AND DISPUTE RESOLUTION AGREEMENT

PLEASE READ THIS SECTION 17 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO FILE A LAWSUIT IN COURT.

17.1  You agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Site or Services (collectively, “Disputes”) will be resolved exclusively by final, binding arbitration between you and TPP, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or where a party’s conduct may cause the other irreparable injury. The provisions of this Section 17 constitute the parties’ written agreement to arbitrate Disputes under the Federal Arbitration Act.

17.2  The arbitration shall be administered by the Judicial Arbitration & Mediation Services (“JAMS”) and shall be heard by a single arbitrator, pursuant to the Arbitration Rules and Procedures then in effect (the “JAMS Rules”), except as modified by this Section 17.

17.3  To begin an arbitration proceeding, a party must submit the Dispute by making a demand for arbitration, as detailed at https://www.jamsadr.com, and simultaneously send a copy of the completed demand to the other party. Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. TPP will reimburse those fees for Disputes totaling less than $10,000 if you are the prevailing party in such arbitration. TPP will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Dispute initiated by you is frivolous. The arbitration will be conducted based upon written submissions, unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines that an in-person hearing is necessary, the hearing will proceed in DeKalb County, Illinois, unless the arbitrator determines or TPP agrees that the matter should proceed in the county where you reside.

17.4  The arbitrator will apply and be bound by these Terms, apply applicable law and the facts, and issue a reasoned award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. You and TPP also agree that the arbitrator may not award multiple or punitive damages. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.

17.5  EACH PARTY AGREES THAT IT SHALL BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR AS AN ASSOCIATION. IN ADDITION, EACH PARTY AGREES THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

18. MISCELLANEOUS

18.1  These Terms and the Privacy Policy (as each may be revised and amended from time to time according to their respective terms) collectively constitute the entire agreement with respect to your access to and use of the Site, Services, and Content.

18.2  Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.

18.3  These Terms shall be construed in accordance with the laws of the State of Illinois without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of Illinois. If for any reason a Dispute proceeds in court, you and TPP: (i) agree that any such Dispute may only be instituted in a state or federal court located in DeKalb County, Illinois and waive any defenses or objections based on the jurisdiction, venue, or convenience of this exclusive venue; (ii) irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (iii) AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

18.4  We may assign our rights and obligations under these Terms, in whole or in part, at any time to any third party without notice. You may not assign these Terms or any rights or obligations hereunder without our prior written consent.

18.5  Our waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.

18.6  If any provision of these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions of these Terms will not be affected, and the invalid, illegal, or unenforceable provision will be replaced by such valid and enforceable provision as comes closest to the intention underlying the invalid, illegal, or enforceable provision.

18.7  Possible evidence of use of the Site or Services for illegal purposes will be provided to law enforcement authorities.

18.8  Discontinuation of use of the Site and Services is your sole right and remedy for any dissatisfaction with the Site, Services, or any of the Content.

18.9  You acknowledge and agree that the Merchant is an intended third-party beneficiary under these Terms and may enforce its rights under these Terms as if it were a direct party hereto. Except for the Merchant, these Terms do not confer any rights, remedies, or benefits upon any person other than TPP and you.

19. QUESTIONS

Please contact us with any questions regarding the Site, Services, or these Terms at admin@thepixelprophet.com