These Terms and Conditions (the “Agreement”) describe the terms and conditions under which you (“Client,” “you,” or “your”) may access and use the services of district m Inc. (“MYPIXEL”, “we”, or “our”).
BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT CREATION PROCESS, OR USING MYPIXEL’S SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY (FOR INSTANCE, AS AN ADVERTISING AGENCY ON BEHALF OF A CLIENT OR AS A RESELLER), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ANY SUCH THIRD PARTY, AND THE TERMS “CLIENT,” “YOU,” OR “YOUR” WILL ALSO REFER TO SUCH THIRD PARTY. MYPIXEL MAY AMEND ANY TERMS OF THIS AGREEMENT BY PROVIDING 30 DAYS’ WRITTEN NOTICE SETTING EXCLUSIVELY THE NEW CLAUSE, OR THE AMENDED CLAUSE AND THE CLAUSE AS IT READ FORMERLY, AND THE DATE OF THE COMING INTO FORCE OF THE AMENDMENT. IF THE AMENDMENT ENTAILS AN INCREASE IN THE CONSUMER’S OBLIGATIONS OR A REDUCTION IN THE MERCHANT’S OBLIGATIONS, YOU SHALL HAVE THE RIGHT TO REFUSE THE AMENDMENT AND RESCIND OR, CANCEL THE SERVICES WITHOUT COST, PENALTY OR CANCELLATION INDEMNITY BY SENDING MYPIXEL A NOTICE TO THAT EFFECT NO LATER THAN 30 DAYS AFTER THE AMENDMENT COMES INTO FORCE.
• “Account” means a Client account for access to the Platform.
• “Ad” means any display creative advertisement that is targeted to an end user through the Services.
• “Agency” means an advertising agency using the Services on behalf of their client.
• “Applicable Law” means any applicable federal, provincial or foreign laws or regulations or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC) that relate to a party’s obligations under this Agreement.
• “Authorized Resellers” means resellers approved by MYPIXEL in its sole discretion.
• “Campaign Data” means performance and measurement data made available through the Platform that relates to Client’s Ad campaigns launched through the Services.
• “Client Content” means all logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to MYPIXEL for use with the Services.
• “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether of a technical, business or other nature that the Receiving Party knows or has reason to know is the confidential, proprietary or trade secret information of the Disclosing Party. For greater certainty, Confidential Information does not include information that (i) was lawfully known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (ii) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; (iii) is lawfully acquired by the Receiving Party from another source without restriction as to use; or (iv) is or becomes part of the public domain through no act or omission of the Receiving Party.
• “Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by MYPIXEL to Client.
• “Feedback” means information regarding the features and performance of the Services and Materials, including (without limitation) reports of failures, errors, or other malfunctions that Client encounters through its use of the Services.
• “Insertion Order” means a document executed by both parties that specifies the type of Services to be provided to Client by MYPIXEL for campaigns, the duration of the Services, a budget, fees, and other details.
• “Managed Account” means a Client account that meets minimum spend requirements, which may be adjusted from time to time.
• “Network” means a group of publishers, ad networks, ad exchanges, and other ad inventory sources that MYPIXEL has partnered with to provide the Services.
• “MYPIXEL API” means MYPIXEL’s application programming interfaces and the accompanying Documentation, code, and related materials, which are subject to the API license agreement found on MYPIXEL.com.
• “MYPIXEL Materials” means the Platform, MYPIXEL API, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
• “Platform” means the MYPIXEL website, dashboard, and tools that Client has access to through the Services to create, launch, monitor, pause, and stop an Ad campaign.
• “Services” means any MYPIXEL offering that Client agrees to receive, subject to this Agreement and mutually agreed upon addendums, and, if applicable, in an Insertion Order.
• “SDK” means MYPIXEL’s software development kit to support its mobile retargeting Ad Services.
• “Service Data” means data (and each component of such data) that is collected by MYPIXEL from end users using a MYPIXEL (or other script or code) installed on Client’s website, an integrated mobile SDK, or other mutually agreed upon means, including any data obtained from third parties while providing the Services. Service Data does not include any user email addresses or other explicitly personally identifiable information provided by Client or Campaign Data. If Client has configured or agreed for MYPIXEL to implement the MYPIXEL (or other script or code) to send hashed user email addresses from Client’s website to MYPIXEL or has authorized MYPIXEL to collect and store hashed user email addresses, this data will be Service Data.
• “Technology” means the MYPIXEL proprietary technology that allows MYPIXEL to provide the Services, including the MYPIXEL pixel (or other script or code), the MYPIXEL API, the SDK, or other mutually agreed upon means.
2. THE MYPIXEL SERVICE
2.1 The Services. Client may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order.
2.2 MYPIXEL License Grant. Subject to Client’s payment and the terms set forth in this Agreement, MYPIXEL grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense to Client during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Client’s internal business purposes, and solely on Client’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the MYPIXEL (or other script or code) into Client’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Client’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the MYPIXEL API).
2.3 Client License Grant. During the Term, Client grants MYPIXEL a worldwide, royalty-free, non-transferable (except as necessary for MYPIXEL to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, and publicly display, the Client Content in Ads on the Network or otherwise in connection with the Services and in promotional materials related to the Services. For Clients requesting MYPIXEL’s dynamic creative advertisement services, Client acknowledges that MYPIXEL will connect to Client’s website to pull and download images at the explicit direction of Client solely for the purpose of creating Ads.
2.4 Requirements. Client will comply with all requirements for use of the Services communicated by MYPIXEL to Client via Documentation, and acknowledges that absent such compliance, MYPIXEL may be unable to provide the Services to Client. Depending on the Services Client chooses to receive, technical requirements may include: (i) including tags, MYPIXELs, script, or code supplied by MYPIXEL on Client’s website; (ii) installing the SDK into Client’s mobile or tablet applications; (iii) supplying appropriate Client Content necessary for MYPIXEL to provide the Service; and/or (iv) allowing access to data collected by Client’s mobile measurement partner. MYPIXEL will have no liability to Client for such failure to provide the Services, if failure is a result of Client’s failure to comply with this section 2.4.
2.5 Modifications. MYPIXEL will host the Services and may update the Services from time to time in accordance with this Agreement. If MYPIXEL provides Services updates to Client that require action on Client’s part, Client will integrate the updates within [30 days.] MYPIXEL may make changes to the Services (including discontinuation of all or part of the Services) at any time. MYPIXEL will provide notice to Client of material changes in accordance with this Agreement. If Client does not wish to continue to use the modified Services, Client’s sole remedy is to terminate the Agreement by providing written notice to MYPIXEL.
2.6 Display of Ads. Client can request to work with MYPIXEL (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available to MYPIXEL. Client acknowledges that MYPIXEL cannot control where and how often Ads will be displayed within the Network. For instance, Ads may be displayed next to ads of Client’s competitors, or on websites or applications that are undesirable to Client. MYPIXEL will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Client notifies MYPIXEL in writing that Ads are being displayed in this manner, MYPIXEL will use commercially reasonable efforts to prevent Ads from continuing to display in this manner. Client Content must comply with Documentation requirements or MYPIXEL may be unable to provide the Services with respect to such Client Content.
2.7 Third Party Terms. Certain parts of the Services require the creation of a user account with third parties to provide their products or services on the MYPIXEL Platform. Client is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Client agrees that MYPIXEL may accept certain third party terms and conditions as agent on Client’s behalf where necessary for MYPIXEL to perform Services requested by Client, for example, terms related to running campaigns on Facebook Website Custom Audiences. Links to or copies of any such terms will be provided upon request.
2.8 Promotions. MYPIXEL may offer promotions, subject to any terms set out in the applicable Documentation. After the promotion, the campaign will automatically continue as a paid campaign, unless Client stops the campaign as described in the applicable Documentation. Client is responsible for all costs that occur beyond the parameters of the promotion described in the applicable Documentation.
3. AGENCY CLIENTS
3.1 Authority, Liability, and Direct Relationship. Agencies and Authorized Resellers entering into Services on behalf of their clients represent that they have the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement. Each Agency and Authorized Reseller accepts responsibility for the actions of its client’s Accounts and liability for all expenses incurred through the provision of Services to its clients, and assumes responsibility for ensuring compliance with and breach of this Agreement by its clients. Except as otherwise set forth hereunder, Agencies and Authorized Resellers will ensure the performance of their respective client’s obligations under this Agreement. Agency and Authorized Reseller clients may request at any time that their Account be migrated to another Agency or to a direct Client Account with MYPIXEL and nothing in this Agreement will prevent MYPIXEL and a customer from entering into a direct relationship. MYPIXEL reserves the right to object to and refuse any clients in MYPIXEL’s sole discretion.
3.2 Support and Marketing. MYPIXEL will provide commercially reasonable support during MYPIXEL’s normal business hours, but Agency and Authorized Reseller acknowledge that they will be solely responsible for providing support to their clients in connection with such clients’ use of the Services, and are solely responsible for marketing efforts related to the “go to market” lifecycle for Services; provided that any marketing materials prepared and/or used by Agency or Authorized Reseller are in compliance with MYPIXEL’s marketing requirements and other documententation. MYPIXEL reserves the right to request changes or removal of any Agency or Authorized Reseller materials used to market the Services.
4. ACCOUNT AND CAMPAIGN SETUP
4.1 Account Set Up. Setting up an Account with MYPIXEL is free of charge. Client will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Client will use reasonable measures to secure its Account credentials and will promptly notify MYPIXEL of any breach of security, misuse, or unauthorized use of its Account or credentials.
4.2 Campaign Set Up and Management. Client will use the Platform to manage its receipt of Services, specifically to set campaign budgets and other details, and to review performance. Campaign modifications made using Client’s Account to set up, adjust the budget for, launch, suspend, or stop a campaign are the sole responsibility of Client. Charges incurred because of changes made using Client’s account will be included in Client’s regular bill or invoice. In addition to MYPIXEL’s optimization services and features, MYPIXEL may offer Managed Account Services to Client. MYPIXEL will use commercially reasonable efforts to comply with the budget specified by Client. Client acknowledges and agrees that, in the event of an increase or decrease in budget by Client, it may take up to one week for the new authorized budget to take effect.
4.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by MYPIXEL, service fees will be based on MYPIXEL’s measurements and tracking through its own servers using the number of impressions, clicks and other indicators necessary for calculating the fees payable by Client. Client may access these measurements through the Platform.
5. PAYMENT TERMS
5.1 Auto-Prepay Accounts. For prepay accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account always and MYPIXEL will pre-charge you weekly for each campaign budget amount as determined by you on the Platform. You authorize MYPIXEL to charge such amounts using the valid payment details provided by you. You understand that all funds transferred to MYPIXEL become the property of MYPIXEL upon transfer to compensate MYPIXEL for costs involved in delivering the Services, including creating and maintaining, and providing access to the Documentation, Network, Platform, Technology, and Campaign Data. If you suspend a Campaign or cancel your Account, you may request reimbursement in the amount of the prepaid funds not attributed to any completed Campaign(s) within 180 days following the earlier of the date the Campaign is paused or the termination of this Agreement; provided that any such reimbursement is at MYPIXEL’s sole discretion.
5.2 Auto-Postpay Accounts. For recurring payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize MYPIXEL to charge recurring amounts due weekly using the valid payment details provided by you. MYPIXEL reserves the right to discontinue the recurring payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred.
5.3 Insertion Order Accounts. MYPIXEL may, in its sole discretion, allow Client to submit an Insertion Order requesting Services. MYPIXEL reserves the right to request a prepayment from Client at any time. MYPIXEL will send Client a monthly invoice via email reflecting the amount owed by Client to MYPIXEL. Client will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. MYPIXEL may charge interest on overdue amounts, from the due date up to the date of actual payment, whether before or after any judgment, at a monthly rate equal to the lesser of 1.5% or the highest rate permitted by Applicable Law. Client will reimburse MYPIXEL for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorney’s fees. Claims relating to invoices or Account charges must be raised by Client within 30 days of receipt or will be barred.
5.4 General Payment Terms. You agree that you have all necessary right, power, and authority to authorize each such payment. For certain payment methods, the issuer of your payment method may charge you a foreign transaction fee or other charges. Check with your payment method service provider for details. If you develop credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or MYPIXEL otherwise designates you as a credit risk, MYPIXEL reserves the right to require prepayment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that MYPIXEL will have no obligation to provide the Services if sufficient funds are not available at the time your payment is submitted, and we reserve the right to suspend your campaigns due to failed payments or insufficient balance.
5.5 Currency and Taxes. All payments to MYPIXEL will be made in Canadian Dollars, unless otherwise agreed to in an IO or offered through the Platform. Payments are quoted exclusive of any taxes. Client is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, provincial, local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon MYPIXEL’s net income.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. MYPIXEL Materials are the sole and exclusive property of MYPIXEL or its third-party licensors as applicable, and are protected by Applicable Law. Client’s rights to the MYPIXEL Materials are limited to those rights expressly granted in this Agreement and do not include any other licenses. Client Content is the sole and exclusive property of Client or its third-party licensors as applicable and is protected by Applicable Law. MYPIXEL’s rights to the Client Content is limited to those rights expressly granted in this Agreement and do not include any other licenses.
6.2 Restrictions. Client will not (i) modify the MYPIXEL Materials or any related proprietary notices; (ii) reverse engineer, decompile, disassemble or interfere with any MYPIXEL Materials (except where and to the extent such prohibition is not permitted by law); (iii) sublicense, rent, sell, or lease access to the MYPIXEL Materials, or use the MYPIXEL Materials to create any other product, service or dataset; (iv) except with respect to Campaign Data, log, capture, or otherwise create any record of any data transmitted to or from the MYPIXEL Materials; (v) deliver any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts or agents into the MYPIXEL Materials; (vi) use the Platform for any purpose other than using the Services for its intended purpose, which does not include creating or supplementing user profiles with targetable interests, user movement profiles, site-specific retargeting, and product-interest information outside of the Services; (vii) make or publish any representations or warranties on behalf of MYPIXEL concerning the Services or MYPIXEL Materials without MYPIXEL’s prior written approval. When reproducing MYPIXEL Materials, Client will include proprietary rights notices contained on the MYPIXEL Materials.
6.3 Export Control Laws. MYPIXEL Materials may be subject to export control laws, including the U.S. Export Administration Act or other import or export regulations in other countries. Client must comply with all such regulations and is responsible for obtaining any related licenses or authorizations.
6.4 Feedback. Feedback provided to MYPIXEL may be used to develop and improve the Service, MYPIXEL Materials and new products and services. To the maximum extent permitted by law, Client grants MYPIXEL a nonexclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit Feedback without restriction.
7. DATA RIGHTS, RESTRICTIONS AND PRIVACY
7.1 Service Data and Campaign Data. MYPIXEL is the sole owner of the Service Data and the Campaign Data and may use either for any purpose allowed by Applicable Law. MYPIXEL grants Client a nonexclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit the Campaign Data in any manner allowed under Applicable Law.
7.2 MYPIXEL Data Privacy Responsibilities. If and to the extent Service Data or Campaign Data contain any personal data of individuals located in the European Economic Area, MYPIXEL will process this data in compliance with Applicable Law. MYPIXEL will use reasonable efforts to cooperate with Client in responding to regulatory or data subject inquiries received by Client about MYPIXEL’s collection and processing of the Service Data or Campaign Data containing personal data from individuals located in the European Economic Area.
7.3 Client Data Privacy Responsibilities. Client will comply with all Applicable Laws that relate to individual third party privacy and publicity rights, and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Services. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses (and, where legally required, obtains consent to) its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site third parties may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and data collected may be used by third parties to target advertising on other sites or applications based on the end users’ online activity);
7.3.1 Opt-out MyPixel technology is based on AppNexus https://www.appnexus.com/en.
How is Platform Data Stored and How Long is it Kep on AppNexus?
• AppNexus uses generally accepted industry security standards to protect data on the Platform. • Platform Data is stored using generally accepted security standards. It is usually aggregated or deleted within 30-60 days, but may be retained in the Platform for up to 18 months from the date of collection before aggregation or deletion. Aggregated data is used for reporting and analysis, and may be stored in the Platform for up to 2 additional years.
• When clients remove their data from the Platform, their storage and retention of data is governed by their own privacy policies and applicable laws, rules, or regulations.
What are your choices?
Opt Out of Interest-Based Advertising: You can opt out of interest-based advertising.
AppNexus Web Browser Opt Out: You can click below to opt out of having the Platform used to select ads for your browser based on your online web browsing behavior. When you opt out, an opt out cookie (from adnxs.com) will be stored in your web browser. The Platform will know the choice you have made when it sees your opt out cookie, and will apply your choice to all companies’ using the Platform. If you block or delete the opt out cookie, you will not be opted out and will need to allow cookies from AppNexus and renew your opt-out choice.
To opt-out from AppNexus, click here http://optout.networkadvertising.org/#!/
Important things to note about the opt out:
• Blocked cookies: The opt out cookie may not work if your browser is configured to block third-party cookies.
• Deleting or protecting opt outs: If you delete your cookies, you will need to opt out again. There are browser plugins to help you preserve your opt out cookies. For more information, please visit http://www.aboutads.info/PMC.
• Only this browser: The opt out only applies to the browser profile in which you set it. For example, if you set the opt out while using Firefox, but then use Chrome, the opt out will not be active in Chrome. To opt out in Chrome, you will need to repeat the opt out process. This is because the cookies cannot be read between different browsers or browser profiles.
• Learn More: To learn more about interest-based advertising, and to access the opt outs of other online advertising companies, visit the Network Advertising Initiative opt out page.
AppNexus Mobile App Opt Out:
Mobile device system software such as Apple iOS or Google Play Services provide mechanisms that allow users to opt out of the use of information about their usage of mobile apps to deliver targeted ads to their mobile device. For more information, or to opt out using these mechanisms, consult your device settings (“Opt out of Interest-Based Ads” on Android devices and “Limit Ad Tracking” on iOS devices). Location: Most mobile devices offer you the ability to stop the collection of location information at any time by changing the preferences on your device. You may also be able to stop the collection of location information by particular apps by adjusting the settings for individual apps or following the standard uninstall process to remove specific mobile apps from your device.
What are your personal data access rights?
Because we prohibit clients from storing information that directly identifies an individual on the AppNexus Platform, it is generally not feasible for us to provide individuals information that is tied to their identities. If you believe that AppNexus holds information that would allow us to correct, amend or delete inaccurate information about you or that information about you that has been processed in violation of the EU-U.S. Privacy Shield’s Principles, please contact us here. We will seek to provide access to such data, but will not be able to do so when the burden or expense of providing access would be disproportionate to the risks to the individual’s privacy in the case in question, or where the rights of persons other than the individual would be violated.
7.4 MYPIXEL WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD MYPIXEL HARMLESS WITH RESPECT TO: (A) CLIENT’S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES, (B) FOR THE COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT, OR (C) DATA SECURITY OR DATA USE IF MYPIXEL ACTS AT CUSTOMER’S EXPLICIT DIRECTION.
8. COLLECTION OF INFORMATION
8.2 Opting Out. MYPIXEL makes available a MYPIXEL “opt-out” cookie that may be downloaded to your browser. If this cookie is installed on your browser, MYPIXEL will not collect anonymous site visit data on that browser. This opt-out tool is cookie-based. This opt-out tool only prevents MYPIXEL from collecting site visit data pertaining to you on the browser on which it is installed, and will only function if your browser is set to accept third-party cookies. If you delete an opt-out cookie from a browser’s cookie files, MYPIXEL will collect site visit data from that browser until an opt-out cookie is reset on that browser. Additionally, you may prevent MYPIXEL from collecting information on a browser by blocking third-party cookies in that browser. If you block third-party cookies from being set on your browser, you may not be able to enjoy some features or functionality of, and you may see the same content and advertisements repeatedly on some Publisher sites.
8.3 Information from Other Sources. MYPIXEL may receive personal information regarding Client from other sources from third parties that provide services for MYPIXEL in connection with the Services, or from third parties added by Client to its network. MYPIXEL may add this information to the information it has already collected via the Services.
8.4 Use of Information Collected. In general, personal information submitted to MYPIXEL is used to register Client for the Services, to respond to Client’s requests, to improve the Services and to better tailor the features, performance and support of the Services, and to offer Client additional information, opportunities, and functionality. MYPIXEL may also use Client’s personal information to provide electronic newsletters, alerts, or promotional e-mails, should Client request to receive such communications. Unless indicated otherwise by Client, MYPIXEL may use Client’s MYPIXEL account username and password to log in to other online services on which Client provides content, in order to index the content provided on such services. MYPIXEL will use Client’s payment account information to make payments as part of its advertising network, if applicable.
MYPIXEL may create anonymous information records from personal information by excluding information (such as name or email address) that makes the information personally identifiable. MYPIXEL may use anonymous information to analyze usage patterns in order to enhance the Services. MYPIXEL reserves the right to use and disclose Anonymous Information to third parties at its discretion.
8.5 Feedback. If Client provides feedback, MYPIXEL may use and disclose such feedback for any purpose, provided it does not associate such feedback with your personal information. MYPIXEL will collect any information contained in such feedback and will treat the personal information in it in accordance with this Section 8.
8.6 Disclosure of Information. Except as otherwise stated in this Section 8, MYPIXEL does not trade, rent, or share the personal information collected with third parties, unless when asked or authorized to do so. MYPIXEL may provide Client’s personal information to third party service providers who work on behalf of or with MYPIXEL to provide some of the services and features of the Services and to help MYPIXEL communicate with Client. Examples of such services include sending email, analyzing data, providing marketing assistance, processing payments (including credit card payments), and providing customer service. However, these service providers do not have any independent right to share this information (except pursuant to a legal requirement such as a subpoena or warrant).
MYPIXEL shares anonymous information with its partners, advertisers, and other third parties in its sole discretion. For example, MYPIXEL may share anonymous information related to a specific cookie to enable advertisers or ad servers to display relevant ads, based on the content, search terms, and demographic profile viewed in connection with that cookie.
MYPIXEL may share some or all of Client’s personal information with any subsidiaries, joint ventures, or other companies under a common control (collectively, our “Affiliates”), in which case MYPIXEL will require its Affiliates to honor the provisions of this Section 8.
In the event of a business transition such as a merger, acquisition by another company, or sale of all or a portion of MYPIXEL’s assets, Client’s personal information may be among the assets transferred. Client acknowledges that such transfers may occur, and that any acquirer of MYPIXEL or its assets may continue to process its personal information as set forth in this Privacy Section 8. MYPIXEL may disclose Client’s personal information if it believes in good faith that such disclosure is necessary to (a) comply with relevant laws or to respond to subpoenas or warrants; or (b) to protect and defend the rights or property of MYPIXEL, Client, or third parties. Client hereby consents to MYPIXEL sharing its personal information under the circumstances described herein.
8.7 Data Retention. Unless Client contacts MYPIXEL to request the deletion of your Account, its data will be retained for as long as it is necessary to fulfill a legitimate business purpose or as required by law.
9.1 By Client. Client represents and warrants to MYPIXEL that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Client Content and the Client websites, mobile or tablet applications do not include materials that are obscene, defamatory or contrary to any Applicable Law; (iii) the Client Content does not infringe or misappropriate the rights of any third party; and (iv) the collection, transfer, use and disclosure of Service Data in accordance with this Agreement will not violate the rights of any third party (including any customer of Client) or any statements in its own posted Privacy Notice or similar privacy statement.
9.2 COPPA Compliance. Client represents and warrants that it will not place MYPIXEL’s MYPIXEL on any website that is directed (in whole or in part) to children under the age of thirteen (13), and that it will not knowingly send to MYPIXEL any information derived from children under the age of thirteen (13).
9.3 By MYPIXEL. MYPIXEL represents and warrants that: (i) it has the right to enter this Agreement, to grant all rights granted, and perform its obligations; and (ii) the Technology will perform substantially in accordance with the Documentation. For any breach of this Section 9.3(ii), MYPIXEL’s sole liability and Client’s sole remedy will be re-performance of the Services by MYPIXEL or Client’s termination rights under Section 12.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 9, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) MYPIXEL EXPRESSLY DISCLAIMS AND MAKES NO ADDITIONAL REPRESENTATION, WARRANTY, CONDITION, OR OTHER CONTRACTUAL TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND (II) THE SERVICES AND MATERIALS MADE AVAILABLE BY MYPIXEL UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY PROMISE WHATSOEVER. EXCEPT WHERE AND TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY LAW: (A) MYPIXEL EXPRESSLY DISCLAIMS ALL IMPLIED PROMISES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, (B) MYPIXEL DOES NOT PROMISE NON-INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED, AND (C) MYPIXEL MAKES NO PROMISE REGARDING THE RESULTS CLIENT WILL OBTAIN THROUGH USE OF THE SERVICES.
10.1 Client indemnification. Client will defend, indemnify, and hold harmless MYPIXEL and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Client’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Client or the Client Content.
10.2 MYPIXEL Indemnification. MYPIXEL will defend, indemnify and hold harmless Client and its officers, directors, employees, and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding any violation, infringement or misappropriation of any copyright, trade secret, U.S. patent or trademark by the MYPIXEL Materials, but excluding any software incorporated into our software under an open source license. In no event, will MYPIXEL have any liability under this Section 10.2 arising from (a) unauthorized modifications made to the Technology; (b) the Client Content; or (c) the combination of the MYPIXEL Materials with any third-party software, process, or service not provided by MYPIXEL. MYPIXEL’s indemnification obligations in this Section 10.2 will be MYPIXEL’s sole liability and Client’s sole remedy for any claims that the Services or Materials violate, infringe or misappropriate any intellectual property right.
10.3 Indemnification Process. The indemnified party will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent of the indemnified party, not to be unreasonably withheld or delayed, and (ii) the indemnified party may join in the defense with its own counsel at its own expense.
11. LIMITATIONS ON LIABILITY.
11.1 Disclaimer of Indirect Damages. MYPIXEL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF MYPIXEL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL MYPIXEL’s COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO MYPIXEL UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
11.3 Basis of the Bargain. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES ALLOCATES THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES, IS REFLECTED IN THE PRICING OFFERED TO CLIENT, AND AS SUCH IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE PROVISIONS ARE SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. IF ANY LIMITATION OF LIABILITY IN THIS AGREEMENT IS FOUND UNENFORCEABLE, LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. TERM AND TERMINATION.
12.1 Term and Termination. Unless otherwise terminated, this Agreement will remain in full force and effect while you use the Services and will terminate upon written notice of cancellation of Client’s Account by MYPIXEL or Client (the “Term”), such termination to take effect 48 hours from receipt of such termination notice (or at such other designated time, at least 48 hours in advance).
12.2 Post-Termination Obligations. Upon termination of this Agreement (i) MYPIXEL will cease providing the Services and permitting access to the Platform to Client; (ii) Client will within thirty (30) days pay to MYPIXEL any fees that have accrued prior to the effective date of termination; and (iii) Client will remove the MYPIXEL pixel from its website and MYPIXEL will not be liable for any damages (or any benefit to MYPIXEL) resulting from Client’s failure to remove the MYPIXEL. Provided Client is not in breach of the Agreement, subject to Section 5, MYPIXEL may refund Client for any amounts prepaid for Services that were not performed prior to termination. The following sections will survive expiration or termination of this Agreement: Sections 1, 6, 7, 8, 9, 10, 11, 12.2, 13, 14, 15 and 16.
12.3 Insolvency. MYPIXEL may immediately terminate this Agreement and move Client to a prepay account pursuant to Section 5 in the event that (a) Client (i) fails to satisfy any enforceable, final and material judgment against it, (ii) fails to pay its fees as they become due or (iii) enters into or is the subject of an insolvency, receivership or bankruptcy proceeding or any other proceeding for the settlement of Client’s debts or (b) a court appoints, or Client makes an assignment of all or substantially all of its assets to, a custodian or trustee for Client or all or substantially all of its assets. Client acknowledges that MYPIXEL may set off any liability owed to Client against any liability for which MYPIXEL determines Client is liable to MYPIXEL related to Services under this Agreement.
MYPIXEL will seek prior authorization from Client for any press release naming Client. Each party retains all right, title and interest to its own logos and trademarks. The MYPIXEL logos and names are trademarks of MYPIXEL. All other trademarks and product or company names mentioned in the Services or MYPIXEL Materials are the property of their respective owners and may not be used without the prior written permission of the owner. Reference to any products or services by name or otherwise does not imply endorsement by MYPIXEL. Notwithstanding the foregoing, MYPIXEL may use Client’s logos and name to indicate in promotional materials that Client is a client of the MYPIXEL Services. All goodwill derived from the use of any trademarks will enure to the benefit of the respective trademark owner.
Each Receiving Party will: (a) use the Disclosing Party’s Confidential Information solely for the purpose for which it is provided and as permitted under this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 14; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the Disclosing Party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If a Receiving Party is required by law to disclose the Confidential Information of the Disclosing Party, such Receiving Party must give prompt written notice (except where prohibited by law) of such requirement to the Disclosing Party before such disclosure and assist the Disclosing Party in obtaining an order protecting the Confidential Information from public disclosure. The obligations in this Section 14 will survive termination of this Agreement until the expiration of [3 years] from the date of last disclosure. Notwithstanding the foregoing, with respect to a Disclosing Party’s trade secrets, the Receiving Party’s obligations under this Agreement remain in effect if the Confidential Information remains a trade secret under the Uniform Trade Secrets Act.
Client may not assign this Agreement without the prior written consent of MYPIXEL. Notwithstanding the foregoing, Client may assign this Assignment upon [ten (10) days] written notice to MYPIXEL in the event of a merger, acquisition, corporate reorganization, or sale of all or substantially all the assets of the Client. MYPIXEL may assign this Agreement and delegate any or all its obligations hereunder. This Agreement will bind and enure to the benefit of the parties, their respective successors, and permitted assigns.
16. RESOLVING DISPUTES – FORUM, GOVERNING LAW.
16.1 Please contact MYPIXEL first! MYPIXEL wants to address your concerns without resorting to formal legal proceedings. Before filing a claim, you agree to try to resolve the dispute informally by contacting MYPIXEL first through https://www.MYPIXEL.com/contact.html
16.2 Judicial forum for disputes. Client and MYPIXEL agree that any judicial proceeding to resolve claims relating to this Agreement or the Services will be brought in the judicial district of Montreal. Client and MYPIXEL consent to venue and personal jurisdiction in such courts.
16.3 Governing Law. This Agreement is governed by, and shall be interpreted and enforced in accordance with the laws of the province of Quebec and the federal laws of Canada applicable therein.
17.1 Amendments. MYPIXEL reserves the right to revise this Agreement, and Client’s rights and obligations are at all times subject to the Agreement then posted at MYPIXEL.com. Client’s continued use of the Service constitutes acceptance. We will also endeavor to notify and give Client an opportunity to review and accept the revisions to the Agreement, which acceptance may be manifested in electronic form (such as through a click-through agreement). However, subject to Applicable Law, the inability to contact Clients through a valid email address regarding the revised Agreement and obtain express acceptance in no way limits the revised Agreement’s effectiveness and application.
17.2 Independent Parties. MYPIXEL is an independent contractor and not an agent of Client in the performance of this Agreement. This Agreement is not to be interpreted as evidence of an association, joint venture, partnership, or franchise between the parties. Nothing in this Agreement will be deemed to confer any third-party rights or benefits; there are no third-party beneficiaries (except the indemnitees referenced in Section 10).
17.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding use of the Services and will supersede all prior agreements between the parties whether, written or oral. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
17.4 Force Majeure. MYPIXEL will not be liable for any delay or failure to perform as required by this Agreement because of any cause or condition beyond MYPIXEL’s reasonable control.
17.5 Use of Third Parties. Subject to Section 14, MYPIXEL may use third parties to perform its duties under this Agreement, including to serve advertisements on its behalf.
17.6 Severability. If any portion of this Agreement is held invalid or unenforceable, such invalidity or enforceability will not affect the other provisions of this Agreement, which will remain in full force and effect, and the invalid or unenforceable portion will be given effect to the greatest extent possible.
17.7 Waiver. The failure of a party to require performance of any provision will not affect that party’s right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
17.8 Third-Party Website Disclaimer. Any links to third-party websites from MYPIXEL Services does not imply endorsement by MYPIXEL of any products, services or information presented therein, nor do we guarantee the accuracy of the information contained on them.
17.9 Notice. All notices to MYPIXEL must be delivered in writing by courier, certified or registered mail (postage prepaid and return receipt requested), electronic mail, or as otherwise specified by MYPIXEL. Legal notices to MYPIXEL must be sent to [email protected] with a copy to district m. Inc. Attn: Senior Vice-President of Sale & Marketing, 5455, de Gaspé avenue, Suite 730, Montréal, Québec, H2T 3B3. Notices to Client will be sent to the Client Account email address on file and/or posted on the Platform dashboard and are deemed effective when sent or posted.