Last Updated: July 1, 2019
Welcome to popthepixel.com (the “Website”). Please take a few minutes to review these Terms of Service (the “Terms”) carefully. This is a legal agreement governing your relationship with POP THE PIXEL LLC d/b/a POP THE PIXEL, and its affiliates, representatives, successors, and assigns (collectively, “POP THE PIXEL”), including, but not limited to, your use of the Website, including POP THE PIXEL’s services and information, your purchase of any POP THE PIXEL products, and your communication with POP THE PIXEL, now and in the future (collectively referred to herein as the “Services”).
By accessing, browsing, or using our Website or Services, including through your computer, laptop, mobile device, or tablet, you expressly agree to be bound to and to abide by the Terms, in addition to our Privacy Policy, or other related policies (collectively, “Policies”). This is regardless of whether or not you transmit, post, send, receive, link, email, submit, upload, download, or otherwise communicate on or through the Website (“Post”) any text, images, data, links, software, or any other input or information (collectively, “Content”). IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST IMMEDIATELY DISCONTINUE ANY BROWSING OR USE OF THE WEBSITE OR SERVICES.
1. Legal Agreement
Your use of this Website is governed by the Terms discussed below creating a legal and enforceable agreement including any documents or policies they expressly incorporate by reference governing access to and use of POP THE PIXEL’s Services, including any activities provided through the Website.
Words such as “POP THE PIXEL,” “us,” “we,” “our,” or “it” used throughout these Terms refer to POP THE PIXEL LLC d/b/a POP THE PIXEL, including all POP THE PIXEL owners, directors, members, employees, staff, contractors, interns, and volunteers. “You,” “your,” “User,” and similar words in these Terms means you, the individual accessing the Website or participating in the Services, as well as any other person or business on whose behalf you may be using the Website or who may have rights through you.
BY ACCESSING OUR SERVICES OR WEBSITE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS, CONDITIONS AND NOTICES CONTAINED IN THESE TERMS JUST AS IF YOU SIGNED A FORMAL LEGAL CONTRACT.
PLEASE REVIEW SECTION 18 CAREFULLY BECAUSE IT CONTAINS DISPUTE RESOLUTION AND ARBITRATION PROVISIONS, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS AND ABILITY TO RESOLVE DISPUTES WITH US. THESE TERMS ALSO CONTAIN DISCLAIMERS AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. SUCH DISCLAIMERS, OR ANY ITEMS DISCUSSED IN THESE TERMS, APPLY TO YOU AND ANY INDIVIDUAL UNDER THE AGE OF 18 FOR WHOM YOU ARE THE PARENT OR GUARDIAN.
BY ACCEPTING THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THEM AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
2. Age Restrictions
You must be at least 18 years old to participate in the Services or use the Website. If you are a legal minor, meaning under 18 years old, you must have permission from a parent or legal guardian to use the Website or participate in the Services. If you are that minor’s parent or guardian, in granting permission for that minor’s use of the Website or Services you acknowledge that you are fully responsible for: (i) the online conduct of such minor; (ii) controlling the minor’s access to and use of our Website; and (iii) the consequences of any misuse by the minor or if the minor violates any of these Terms. We have no intention of collecting personal information from individuals under the age of 18.
Our Website is not intended for children under 13 years of age. No one under age 13 may provide any information to or on the Website. We do not knowingly collect personal information from children under 13 without verified parental or guardian consent. If you are under 13, you are not permitted to use our Website or any related Services and should not provide us with any Personal Information about yourself, including your name, address, telephone number, email address, or any screen name or user name you may use.
If we learn we have collected or received any information from a child under 13 without verified parental consent, we will delete that information in accordance with the Children’s Online Privacy Protection Act (“COPPA”). If you believe we might have any information from or about a child under 13, please contact POP THE PIXEL at [email protected], and we will take reasonable steps to ensure that such information is deleted from our records.
By accessing the Website, you represent and warrant to us, meaning you guarantee that: (i) you are within the discussed age restrictions; (ii) you have the right, authority and capacity to agree to, and abide by these Terms; (iii) you will not use the Services or the Website for any unlawful purpose; and (iv) you will not use the Services or the Website for any purpose which violates these Terms, as determined by us.
3. Legal Advice Disclaimer
POP THE PIXEL provides the Services and Website for informational and reference purposes only. OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY CONTENT ON THE WEBSITE, DOES NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, LEGAL ADVICE OR THE ADVICE OF AN ACCOUNTANT, AND USE OF THE WEBSITE DOES NOT CONSTITUTE ADVICE FROM A LAWYER OR AN ACCOUNTANT. POP THE PIXEL is not a law firm, an attorney, or an accountant. We encourage you to seek the advice of an attorney, if you require any legal advice. We expressly waive all liability related to the accuracy or reliability of any opinion, advice, or Content related to our Services or on the Website, so your use or reliance on that information is at your own risk.
4. POP THE PIXEL Content
(A) Content Generally
All Content on the Website or otherwise obtained from a Linked Site (defined below), or any Services or products you obtain through the Website are provided to you ‘AS IS’, ‘AS AVAILABLE,’ and ‘WITH ALL FAULTS’. This means we use commercially reasonable efforts to provide you with useful Content, however, we do not warrant or represent that the Content or other information available through the Services or published on the Website is complete, up-to-date, or without inaccuracies or typographical errors. THEREFORE, YOUR USE OR RELIANCE OF THE WEBSITE’S CONTENT IS AT YOUR OWN RISK, WITHOUT RECOURSE AGAINST POP THE PIXEL. Under no circumstance will we be liable for any loss or damage caused by your reliance on any Content or other information, obtained through our Services, Website, or a Linked Site.
You may not copy, download, store, publish, transmit, transfer, sell or otherwise use Content, or any portion of the Content, in any form or by any means, except: (i) as expressly permitted by these Terms; (ii) with POP THE PIXEL’s prior written permission, or (ii) if not expressly prohibited by these Terms, as allowed under the fair use provision of the U.S. Copyright Act (17 U.S.C. § 107).
(B) Website Disclaimer
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE IS PROVIDED ON AN AS-IS BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER POP THE PIXEL NOR ANY PERSON ASSOCIATED WITH POP THE PIXEL MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER POP THE PIXEL NOR ANYONE ASSOCIATED WITH POP THE PIXEL REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, POP THE PIXEL HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DISCLAIMER DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
5. Links from the Website (“Linked Sites”)
Our Website may provide links to other third-party sites that allow you to leave the Website (a “Linked Site”). We have no discretion or control over the information or resources on a Linked Site, and we do not verify, endorse, or have any responsibility for these Linked Sites, even if the Linked Site is part of one of a co-branding or promotional arrangement. We also accept no responsibility for any loss or damage that may arise from your use of Linked Sites, including if any Linked Site obtains or collects personally-identifiable information from you. If you decide to access any Linked Site, you do so entirely at your own risk and subject to the terms of service, privacy policies, or other conditions or policies for those Linked Sites.
6. Privacy Policy
By using the Website or our Services, you consent and agree that we may use all collected personally-identifiable information as described in our Privacy Policy, which is incorporated into these Terms by reference. Please see our Privacy Policy for more information.
7. Intellectual Property
Please note, in these Terms, the phrase “intellectual property” describes the ownership rights or other protections over POP THE PIXEL’s creative and intellectual efforts. We describe what this means in more detail below.
(A) Generally
The Website and its Content, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, compilation, and arrangement thereof), are owned by POP THE PIXEL, its licensors or other providers of such material (if any) and are protected by United States and international copyright, trademark, patent, trade secret, contract, and other intellectual property or proprietary rights laws. You do not own nor do you have title or interest to the Website, its Content, or other materials discussed in this paragraph.
These Terms permit the use of the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Content or other material on our Website, expect as follows:
1. Your computer may temporarily store copies of such Website Content or materials incidental to your accessing and viewing those materials.
2. You may store files that are automatically cached by your Internet browser for display enhancement purposes.
3. You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
4. If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by these Terms for such applications
5. If we provide social media features through the Website, you may take such actions as are enabled by those social media features.
However, you must not under any circumstances:
1. Modify, translate, or otherwise create copies or derivative works of any Content or materials from the Website.
2. Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
3. Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Website.
You must not access or use for any commercial purposes any part of the Website or any Content, Services, or materials available through the Website. If you wish to make any use of Content or other materials on the Website other than as discussed in these Terms, please contact POP THE PIXEL first at [email protected].
If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website, including any Content, Services or other materials available through the Website that is in breach of the Terms, your right to use the Website may end immediately and you must return or destroy (POP THE PIXEL will decide which option) any copies of the materials you have made. In summary, no right, title, or interest in or to the Website or any Content, Services, or materials available through the Website is transferred to you, and all rights not expressly granted above are reserved by POP THE PIXEL. Any use of the Website not expressly permitted by these Terms is not only a breach of these Terms, but may also violate certain laws.
(B) Trademarks
Our trademarks, or the trademarks of our affiliates or licensors, include POP THE PIXEL LLC, POP THE PIXEL, POP THE PXL and all other graphics, logos, page headers, button icons, scripts, service names and other Content that we use, manage or control in the United States or other countries. All other trademarks that appear on the Services are the property of their respective owners.
8. Copyright Infringement
We respect the intellectual property of others and ask that Users do the same, and we abide by the Digital Millennium Copyright Act (“DMCA”) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove any infringing or unauthorized materials from any User Content and terminate or disable a User’s ability to use the Services or Website. We may also make a good faith attempt to contact the person who submitted the affected material so that they may make a Counter-Notification under the terms of the DMCA.
You may wish to consult a lawyer to determine your rights and obligations under the DMCA and any other applicable laws. Nothing here or anywhere on our Website should be construed as legal advice. The following notice requirements are intended only to comply with POP THE PIXEL’s rights and obligations under the DMCA and, in particular, 17 U.S.C. section 512(c), and do not constitute legal advice.
If you believe in good faith that your copyrighted work has been infringed by any content or materials on the Website or otherwise in using the Services, and wish to have the allegedly infringing or unauthorized material removed, please provide our designated copyright agent with a written notice that includes all of the following information:
• Your physical or electronic signature;
• Identification of the copyrighted works that you claim to have been infringed;
• Identification of the Content on the Website that you claim is infringing and that you request us to remove;
• Sufficient information to permit us to locate such infringing Content;
• Your address, telephone number, and e-mail address;
• A statement that you have a good faith belief that use of the use of the infringing Content is not authorized by the copyright owner, its agent, or the law; and
• A statement by you, which you make under penalty of perjury, that the information in your notification is accurate and that you are either the copyright owner or that you are authorized to act on behalf of the copyright or other rights owner.
Pursuant to the DCMA, any misrepresentation of material fact in a written notification automatically subjects the complaining party, meaning the individual notifying us of the infringement, to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
In accordance with the DMCA and other applicable law, POP THE PIXEL has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, Users who have in any way infringed on our intellectual property rights, or the intellectual property rights of others. We may also at our sole discretion limit or terminate access to the Services of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
9. Linking To Our Website
You may link to the Website, as long as that link is fair and legal and does not damage POP THE PIXEL’s reputation or take advantage of it and provided that your linking website does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. You must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. You may not use a POP THE PIXEL logo or our other intellectual property to link to our Website without our express written permission.
This Website may provide certain social media features that enable you to:
1. Link from your own or certain third-party websites to certain content on this Website.
2. Send emails or other communications with certain content, or links to certain content, on this Website.
3. Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional Terms we provide with respect to such features. Subject to the foregoing, you must not:
1. Establish a link from any website that is not owned by you.
2. Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
3. Link to any part of the Website other than the homepage.
4. Otherwise take any action with respect to the materials on this Website that is inconsistent with any provision of these Terms.
We reserve the right to revoke your ability to link to the Website at any time and for any reason, as determined by us in our sole discretion. If we notify you revoking your limited right to link to the Website, you shall immediately cease using and remove any and all links to the Website you created, used, or controlled. We may disable all or any social media features and any links at any time without notice in our discretion.
Further, you may not use, frame, or utilize framing techniques (meaning, coding a word or image in a way that connects to another website when you click on it) to enclose any POP THE PIXEL trademark, logo or other proprietary information, including the images found on the Website, any text or the layout/design of any page or form contained on a page of the Website without our express written consent.
10. Website Use Restrictions
You may not use or plan, encourage, or help others to use the Website and its Content (including any User Content) for any purpose or in any manner that is prohibited by these Terms or by applicable law. In using the Website, you agree at all times that you shall not:
• Infringe on the copyrights or other intellectual property rights of POP THE PIXEL, a User, or a third party;
• Copy, distribute, or modify any part of the Services without our prior written authorization;
• Post inappropriate, inaccurate, false, misleading, or objectionable User Content to the Services, as determined by us;
• Transmit any Content which contains software viruses, or other harmful computer code, files or programs;
• Post Content that falsely states, impersonates or otherwise misrepresents your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present;
• Make threats or use profanity;
• Harass, stalk or intimidate other Users;
• Manipulate or exclude identifiers in order to disguise the origin of any Content;
• Disrupt the networks connected to the Services, including but not limited to by: attempting to probe, scan or test the vulnerability of the Services, attempting to breach security or authentication measures without proper authorization, or attempting to interfere with the Services, Website, or a User, by means such as overloading, ‘flooding’, ‘mailbombing’ or ‘crashing.’;
• Circumvent, disable or otherwise interfere with security-related features of the Services, Website, or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services;
• Collect Content, personally identifying information, and/or other information from the Website, or otherwise access the Website, by using any automated means, including but not limited to, ‘robots’, ‘spiders’, ‘scrapers’ and ‘offline readers’, without our prior written approval which we may withhold in our discretion;
• Modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, sell, or distribute the Services;
• Rent or lease any rights in the Website in any form to any third party or make the Services available or accessible to third parties;
• Use any communications systems provided by the Website to send unsolicited or unauthorized communications, including but not limited to by email, SMS, MMS, or any other means;
• Remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices displayed on the Website;
• Mislead or attempt to mislead or defraud or attempt to defraud or conceal any information relating to Content or other information that you provide to us;
• Link, deep link, ‘frame’ or ‘mirror’ any part of the Website without our prior consent; or
• Use the Website to violate any applicable laws, rules or regulations, or for any unlawful, harmful, or inappropriate purpose, or in any manner that breaches these Terms or is otherwise objectionable, as determined by us in our sole discretion.
11. Website Termination, Restriction, and Modification
Any of the Content or other material on the Website may be out of date at any given time and we are under no obligation to update such Content. However, we reserve the right to modify, terminate, restrict, or suspend your access or use of the Services or Website at any time in our absolute and sole discretion, without notice to you, for any reason, and to take any other actions that we, in our sole discretion, believe to be in the interest of the Website, our Services, POP THE PIXEL, and our users and clients as a whole. You agree that POP THE PIXEL shall not be liable to you or any third party for any modification, restriction, termination, suspension, or discontinuance of the Website or Services.
12. Disclaimers
IF YOU CHOOSE TO USE OUR SERVICES, YOU DO SO AT YOUR SOLE RISK. OUR SERVICES AND CONTENT ARE PROVIDED ‘AS IS’, ‘AS AVAILABLE’ AND ‘WITH ALL FAULTS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, OUR SERVICES, INCLUDING BUT NOT LIMITED TO PHYSICAL INJURY OR DEATH AS WELL AS DAMAGES TO PERSONAL PROPERTY. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE WEBSITE, AND/OR THE SERVICES POP THE PIXEL EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, ACCURACY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUIET TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. POP THE PIXEL MAKES NO WARRANTY THAT THE WEBSITE, SERVICES, AND/OR CONTENT WILL MEET YOUR NEEDS, EXPECTATIONS, BE TO YOUR SATISFACTION, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE, BUG-FREE, OR MALWARE-FREE BASIS. POP THE PIXEL MAKES NO WARRANTY REGARDING THE QUALITY OF OUR SERVICES, WEBSITE, OR CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM POP THE PIXEL OR THROUGH THE SERVICES, WEBSITE, OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
13. Release and Waiver of Claims
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT, YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, AND DISCHARGE ALL CLAIMS, ACTIONS, DEMANDS, SUITS, OR PROCEEDINGS (“CLAIMS”) AGAINST POP THE PIXEL AND OUR AFFILIATES, INCLUDING ANY AND ALL LIABILITY FOR DAMAGES (ACTUAL AND OR CONSEQUENTIAL), COSTS AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS’ FEES) OF EVERY KIND AND NATURE, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO, BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, EMOTIONAL DISTRESS, ARISING FROM OR IN ANY WAY RELATED TO: (A) THE SERVICES OR WEBSITE, (B) THIS AGREEMENT, (C) YOUR DEVICE, (D) CONTENT AVAILABLE THROUGH OUR SERVICES OR ON OUR WEBSITE, (E) ANY INACCURACY, UNTIMELINESS OR INCOMPLETENESS OF A USER’S REPRESENTATIONS OR WARRANTIES, AND/OR (F) ANY INACCURACY, UNTIMELINESS, OR INCOMPLETENESS OF ANY AND ALL INFORMATION AND/OR CONTENT OBTAINED OR ACCESSED BY OR THROUGH THE SERVICES OR WEBSITE. FURTHER, IF YOU ARE A RESIDENT OF THE STATE OF CALIFORNIA, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU UNDERSTAND THAT ANY FACT RELATING TO ANY MATTER COVERED BY THIS AGREEMENT MAY BE FOUND TO BE OTHER THAN NOW BELIEVED TO BE TRUE, AND ACCEPT AND ASSUME THE RISK OF SUCH POSSIBLE DIFFERENCES IN FACT. IN ADDITION, YOU EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS WHICH YOU MAY HAVE HAD UNDER ANY OTHER STATE OR FEDERAL STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, TO THE FULLEST EXTENT PERMITTED BY LAW.
14. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, OR EMOTIONAL DISTRESS RELATED TO OR RESULTING FROM ANY ASPECT OF OUR SERVICES OR WEBSITE, OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF (A) THE SERVICES, (B) THE WEBSITE, (C) THIS AGREEMENT, (D) CONTENT, (E) OR ANY OTHER ASPECT OF OUR SERVICES OR WEBSITE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (BREACH OF CONTRACT, A BREACH OF WARRANTY, NEGLIGENCE, PRODUCTS LIABILITY, STRICT LIABILITY, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages (regardless of whether the Claim for such damages is based in contract, tort, strict liability, or otherwise) exceed one hundred twenty-five dollars ($125). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
15. Dispute Resolution
(A) Arbitration
Any dispute or claim relating in any way to your use of the Website or your use of the Services will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.
The binding arbitration will be administered in accordance with the rules of the American Arbitration Association (the “AAA”), in Los Angeles County, California, and at our option, such arbitration shall be before a single neutral arbitrator selected in our sole and absolute discretion. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The Federal Arbitration Act (“FAA”) and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under these Terms or the enforcement thereof, then that issue shall be resolved under the laws of Los Angeles County, California.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of these Terms as a court would. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
To begin an arbitration proceeding, you must provide POP THE PIXEL with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration – Consumer Arbitration Rules available at www.adr.org or by calling the AAA at 1-800-778-7879). Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
If for any reason a claim proceeds in court rather than in arbitration, then the dispute will be handled in the state or federal Los Angeles County, California, courts. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. By using the Services or Website, you irrevocably agree and consent to be bound to personal jurisdiction of and venue selection of the state or federal courts located in Los Angeles County, California. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING TO THESE TERMS IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR ANY OTHER MATTERS INVOLVING YOU AND POP THE PIXEL.
(B) Claim Procedure
YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SERVICES OR WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS WE AGREE OTHERWISE, THE DECISION-MAKER MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE DECISION-MAKER MAY AWARD RELIEF ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
16. Indemnification
You agree to indemnify, defend, and hold us and our affiliates harmless from and against any and all claims, losses, expenses, damages and costs (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages), and reasonable attorneys’ fees, resulting from or arising out of, under, or relating to: (a) your use, misuse, or inability to use the Services or Website; (b) any infringement of a third party’s rights; (c) your Device; a breach of representation or warranty; (d) your User Content; disclosure or use of Content by you; (e) alterations of, loss of, or unauthorized access to any information sent or received or not sent or received by you or us; (f) any defamatory, offensive, fraudulent, or illegal use of the Services or Website by you; (g) any accidental or improper disclosure of information; and any violation by you of these Terms or any of our other Policies.
17. Notification
By using the Services or Website, you agree that we may provide you with any notices or other communications electronically: (a) via email (in each case to the address that you provide), SMS message, or telephone call (in each case to the phone number that you provide), or (b) by posting to the Website. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. If you wish to opt out of promotional communications, please use the available “unsubscribe” link or please contact POP THE PIXEL at [email protected].
18. Severability; No Waiver
The representations and warranties and/or covenants set forth herein are each to be construed as a separate agreement, independent of any other provisions of these Terms. Further, the invalidity or unenforceability of any provision, word, phrase, clause, sentence, paragraph or section of these Terms shall in no way affect the validity or enforceability of any other provision, word, phrase, clause, sentence, paragraph or section of these Terms, and any such invalid or unenforceable provision that is overbroad shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as narrowed. If one or more of the provisions in these Terms is deemed invalid or unenforceable, then the remaining provisions will continue in full force and effect. Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
19. Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us as determined by us.
20. Third Parties
From time to time, we may engage third parties or Affiliates to assist us in providing certain aspects of the Services or Website, including but not limited to marketing functions. You agree that we may engage such third parties in providing Services or Website to you, as determined by us.
21. Modifications to the Terms
We reserve the right to revise and update these Terms together with our Polices and any other document referenced in these Terms, establishes the entire legal understanding between us and you. You agree that we may amend, modify, or alter our Terms or Polices at any time in our sole discretion without prior notice. All changes are effective immediately, but will not apply retroactively, when we post them on the Website, so your use of the Website or participation in the Services means you agree to be bound by those revisions. Therefore, we encourage you to periodically review these Terms.
You agree that your use of the Services or Website after such notification will constitute acceptance by you of such changes to these Terms. If you do not accept and agree to any revised portions of these Terms, you may reject them by immediately discontinuing use of the Services and the Website. In the event you reject the Terms and continue to access or use the Services or Website, such continued access or use is unauthorized.
22. Headings
Headings in these Terms are for convenience only, and shall not govern the meaning or interpretation of any provision of these Terms. Further, whenever the context requires, all words, including but not limited to defined capitalized terms, will include the masculine, feminine, and neutral, and each word will include the singular form, plural form, and other conjugations of that word.
23. Governing Law; English Language
By using the Services or our Website, you agree that the laws of California, the United States of America, and the Federal Arbitration Act will govern these Terms, our Privacy Policy, or other Policies, without regard to conflicts of law principles. In the event of a conflict between these Terms and a foreign language version of these Terms, the English language version of these Terms shall govern. Further, all disputes, claims and causes of action (and related proceedings) will be communicated in English.
24. Geographical Restrictions
POP THE PIXEL’s Services and Website are controlled and offered from our facilities based in the United States. We provide this Website for use only by persons located in the United States. We make no representations or claims that the Services or Website are accessible or appropriate outside of the United States. Access may not be legal by certain persons or in certain countries. If you access the Services or Website from outside the United States, you do so on your own initiative and are responsible for compliance with any local laws
25. Compliance
You represent and warrant that you shall comply with all applicable laws, statutes, ordinances, and regulations regarding use of the Service. The Services or Website are designed and targeted to Users who reside in the United States. We make no representation that the Services or Website are operated in accordance with the laws or regulations of, or governed by, other nations. By accessing the Services or Website you certify that you meet the age and other eligibility requirements for use of the Services or Website. Those who access or use the Services or Website do so at their own volition and are entirely responsible for compliance with applicable law. Further, you agree to comply with all laws, restrictions and regulations relating to the export of items, Content, and the Services or Website. For purposes of the U.S. Export Administration Act (“Export Laws”), you state you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the Office of Foreign Assets Control (“OFAC”)) comprehensively embargoed countries of Iran, Syria, Cuba, North Korea and Sudan and certain Specially Designated Nationals listed by OFAC as updated from time to time and (b) not otherwise prohibited under the Export Laws from receiving the Services, Website, and Content.
26. Feedback
We value your comments and opinions. If you have questions, comments or a complaint about these Terms, you may send a written notice to us at: [email protected].