This Universal Terms of Service Agreement (this “Agreement”) is entered into by and between PrimePixels.com, LLC, a Delaware limited liability company ("PrimePixels") and you, and is made effective as of the date of your use of this website ("Site") or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the “Services”). Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control.
The terms “we”, “us” or “our” shall refer to PrimePixels. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
MODIFICATION OF AGREEMENT, SITE OR SERVICES
PrimePixels may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, PrimePixels may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account (“Account”) information current. PrimePixels assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address. In addition, PrimePixels may terminate Your use of Services for any violation or breach of any of the terms of this Agreement by You. PrimePixels RESERVES THE RIGHT TO MODIFY, CHANGE, OR DISCONTINUE ANY ASPECT OF THIS SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION PRICES AND FEES FOR THE SAME, AT ANY TIME.
This Site and the Services are available only to individuals (“Users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of the United States or other applicable jurisdiction. If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "User" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, PrimePixels finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. PrimePixels shall not be liable for any loss or damage resulting from PrimePixels’s reliance on any instruction, notice, document or communication reasonably believed by PrimePixels to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, PrimePixels reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
In order to access some of the features of this Site or use some of the Services, you will have to create an Account. You represent and warrant to PrimePixels that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If PrimePixels has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, PrimePixels reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation your customer number/login, password, Payment Method(s) (as defined below), and shopper PIN. For security purposes, PrimePixels recommends that you change your password and shopper PIN at least once every six (6) months for each Account. You must notify PrimePixels immediately of any breach of security or unauthorized use of your Account. PrimePixels will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss PrimePixels or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
- GENERAL RULES OF CONDUCT
You acknowledge and agree that:
Your use of this Site and the Services , including any content you submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations. You will not collect or harvest (or permit anyone else to collect or harvest) any User Content (as defined below) or any non-public or personally identifiable information about another User or any other person or entity without their express prior written consent.
You will not use this Site or the Services in a manner (as determined by PrimePixels in its sole and absolute discretion) that:
Is illegal, or promotes or encourages illegal activity; Promotes, encourages or engages in child pornography or the exploitation of children; Promotes, encourages or engages in terrorism, violence against people, animals, or property; Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking; Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription; Violates the Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking; Infringes on the intellectual property rights of another User or any other person or entity; Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity; Interferes with the operation of this Site or the Services found at this Site; Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or Contains false or deceptive language, or unsubstantiated or comparative claims, regarding PrimePixels or PrimePixels’s Services. You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by PrimePixels. You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies. You will not access PrimePixels Content (as defined below) or User Content through any technology or means other than through this Site itself, or as PrimePixels may designate. You agree to back-up all of your User Content so that you can access and use it when needed. PrimePixels does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content. You will not re-sell or provide the Services for a commercial purpose, including any of PrimePixels's related technologies, without PrimePixels's express prior written consent. You will not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any PrimePixels Content or User Content) or enforce limitations on the use of this Site or the Services found at this Site, the PrimePixels Content or the User Content therein. You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested. You are aware that PrimePixels may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you may be subject to call recording and hereby consent to the same, subject to any applicable laws and our restrictions and obligations thereunder, including, where permissible, to record the entirety of such calls regardless of whether PrimePixels asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted as evidence in any legal proceeding in which PrimePixels is a party. Further, by providing your telephone or mobile number, you consent to receive marketing telephone calls from or on behalf of PrimePixels that may be initiated by an automatic telephone dialing system and/or use an artificial or prerecorded voice. You understand that providing consent is not a condition of purchasing any good or service from PrimePixels. Similarly, by providing your mobile number, you consent to receive marketing text messages from or on behalf of PrimePixels that may be sent by an automatic telephone dialing system. You understand that providing consent is not a condition of purchasing any good or service from PrimePixels. Message and data rates may apply. Without limiting any of the rights set forth elsewhere in this Agreement, PrimePixels expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any User (i) whose Account or Services were previously terminated or suspended, whether due to breach of this or any other Agreement or any PrimePixels policy, or (ii) who otherwise engages or has engaged in inappropriate or unlawful activity while utilizing the Site or Services (as determined by PrimePixels in its sole and absolute discretion).
PROTECTION OF YOUR DATA
PrimePixels offers certain hosted Services available to you that may involve the submission, collection and/or use of personally identifying or identifiable information about you and your own customers (“Your Data”) in the course of your use of these Services (“Covered Services”). Your Data, for the purpose of this Section, excludes any User Content. PrimePixels’s Data Processing Addendum (“DPA”), which is hereby incorporated by reference and applicable to Covered Services, is meant to provide you contractual assurance that we have robust mechanisms to ensure the transfer of Your Data, including transfers of Your Data from the EEA to the Covered Services, meets with compliance under applicable data privacy laws.
For the purposes of the DPA and the Standard Contractual Clauses attached to the DPA (when and as applicable), you (and your applicable affiliates) are considered the Data Controller/Data Exporter, and your acceptance of the terms of service governing Covered Services at the time of purchase of any Covered Services will also be treated as your acknowledgement and acceptance of the DPA and its appendices (including the Standard Contractual Clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the DPA, please send an email request to privacy@PrimePixels.com.
Covered Services, as defined in this Section and in the DPA, include hosted services that are subject to the terms and conditions of the following Agreements: (1) Domain Name Registration, (2) Email Marketing Services, (3) Website Builder, (4) Hosting, (5) Online Bookkeeping, (6) Online Store/Quick Shopping Cart, and (7) Smartline.
Some of the features of this Site or the Services, including those Services that are hosted with PrimePixels, may allow Users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity (“User Submissions”), or (b) literary, artistic, musical, or other content, including but not limited to photos and videos (together with User Submissions, “User Content”). All content submitted through your Account is consider User Content. By posting or publishing User Content to this Site or to or via the Services, you represent and warrant to PrimePixels that (i) you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party. You shall be solely responsible for any and all of your User Content or User Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
User Submissions. You acknowledge and agree that your User Submissions are entirely voluntary, do not establish a confidential relationship or obligate PrimePixels to treat your User Submissions as confidential or secret, that PrimePixels has no obligation, either express or implied, to develop or use your User Submissions, and no compensation is due to you or to anyone else for any intentional or unintentional use of your User Submissions, and that PrimePixels may be working on the same or similar content, it may already know of such content from other sources, it may simply wish to develop this (or similar) content on its own, or it may have taken / will take some other action.
PrimePixels shall own exclusive rights (including all intellectual property and other proprietary rights) to any User Submissions posted to this Site, and shall be entitled to the unrestricted use and dissemination of any User Submissions posted to this Site for any purpose, commercial or otherwise, without acknowledgment or compensation to you or to anyone else.
User Content Other Than User Submissions. By posting or publishing User Content to this Site or through the Services, you authorize PrimePixels to use the intellectual property and other proprietary rights in and to your User Content to enable inclusion and use of the User Content in the manner contemplated by this Site and this Agreement. You hereby grant PrimePixels a worldwide, non-exclusive, royalty-free, sublicensable (through multiple tiers), and transferable license to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content in connection with this Site, the Services and PrimePixels's (and PrimePixels’s affiliates’) business(es), including without limitation for promoting and redistributing all or part of this Site in any media formats and through any media channels without restrictions of any kind and without payment or other consideration of any kind, or permission or notification, to you or any third party. You also hereby grant each User of this Site a non-exclusive license to access your User Content (with the exception of User Content that you designate “private” or “password protected”) through this Site, and to use, reproduce, distribute, prepare derivative works of, combine with other works, display, and perform your User Content as permitted through the functionality of this Site and under this Agreement. The above licenses granted by you in your User Content terminate within a commercially reasonable time after you remove or delete your User Content from this Site. You understand and agree, however, that PrimePixels may retain (but not distribute, display, or perform) server copies of your User Content that have been removed or deleted. The above licenses granted by you in your User Content are perpetual and irrevocable. Notwithstanding anything to the contrary contained herein, PrimePixels shall not use any User Content that has been designated “private” or “password protected” by you for the purpose of promoting this Site or PrimePixels’s (or PrimePixels’s affiliates’) business(es). If you have a website or other content hosted by PrimePixels, you shall retain all of your ownership or licensed rights in User Content.
AVAILABILITY OF WEBSITE/SERVICES
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Serviceson a twenty-four (24) hours a day, seven (7) days a week basis. You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
In the event you are provided with a product credit (“Credit”), whether for redemption of the purchase of a specific product or for free with the purchase of another product (“Purchased Product”), you acknowledge and agree that such Credit is only valid for one (1) year and is only available with a valid purchase and may be terminated in the event the product purchased is deleted, cancelled, transferred or not renewed.The Credit will expire one (1) year from date of purchase of the Purchased Product if the Credit has not been redeemed. In the event that the Credit is redeemed, after the initial subscription period, the product will automatically renew at the then-current renewal price until cancelled. If you wish to cancel the automatic renewal of the product, you may do so by visiting your Account or by contacting customer service. In the event your Purchased Product includes a free domain name, if you cancel the Purchased Product, the list price for the domain name will be deducted from the refund amount. The list price is the price of the domain name listed on PrimePixels's website and is not subject to any promotion, discount, or other reduction in price. For Credits issues for free with another Purchased Product, you acknowledge and agree that we may swap your Credit for a similar product, in our sole discretion.
MONITORING OF CONTENT; ACCOUNT TERMINATION POLICY
PrimePixels generally does not pre-screen User Content (whether posted to a website hosted by PrimePixels or posted to this Site). However, PrimePixels reserves the right (but undertakes no duty) to do so and decide whether any item of User Content is appropriate and/or complies with this Agreement. PrimePixels may remove any item of User Content (whether posted to a website hosted by PrimePixels or posted to this Site) and/or terminate a User’s access to this Site or the Services found at this Site for posting or publishing any material in violation of this Agreement, or for otherwise violating this Agreement (as determined by PrimePixels in its sole and absolute discretion), at any time and without prior notice. PrimePixels may also terminate a User’s access to this Site or the Services found at this Site if PrimePixels has reason to believe the User is a repeat offender. If PrimePixels terminates your access to this Site or the Services found at this Site, PrimePixels may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers.
Products and Services available for refunds are described here (“Refund Policy”).
GOOD AS GOLD PREPAID SERVICES
Service Details. By using Good As Gold Prepaid Services, you may transfer funds to PrimePixels to fund your Good As Gold Prepaid Services account (“Good As Gold Account”). You may then use your Good As Gold Account to purchase any Services. You may fund your Good As Gold Account by wire transfer.
You acknowledge that funds transferred to your Good As Gold Account will be held by PrimePixels and will not accrue or pay interest for your benefit. To the extent any interest may accrue, you agree that PrimePixels shall be entitled to receive and keep any such amounts to cover costs associated with Good As Gold Prepaid Services.
You agree that all transactions using Good As Gold Prepaid Services will be conducted in U.S. dollars.
Your Good As Gold Account must be funded on an initial basis with no less than funds equivalent to $1,000.00 U.S. dollars.
All payments must be for the full amount required at purchase.
Wire Transfer Details. Wire transfers may be initiated in foreign currency to fund your Good As Gold Account, however the natural currency of the Wild West Domains bank account is U.S. Dollars. Foreign currency wires will be automatically converted and deposited in U.S. Dollars. Please note that exchange rate fees may apply.
You are responsible for all wire transfer fees, both incoming and outgoing, associated with your Good As Gold Account. Any non-U.S. wire transfers may be subject to fees by your bank, intermediary banks, or PrimePixels’s bank, which may reduce the amount of the money received by PrimePixels’s bank and subsequently funded into your Good As Gold Account. You hereby expressly authorize PrimePixels(i) to reduce your Good As Gold Account by the amount of wire transfer fees PrimePixels incurs in order to receive your funds; and/or (ii) to charge a twenty-dollar ($20.00) service fee (“Service Fee”) in connection with the termination of your Good As Gold Account. All fees are subject to change at any time, and such changes shall be posted online and effective immediately without need for further notice to you.
You can verify the remaining funds in your Good As Gold Account at any time through your Account or the shopping cart. Should you decide to terminate your Good As Gold Account (or should PrimePixels opt to terminate your Good As Gold Account because you have breached an obligation under the Good As Gold Service Agreement), then the balance in your Good As Gold Account will be refunded, net the Service Fee.
Additional funds may be added to your Good As Gold Account at any time.
Your Use of Good As Gold Prepaid Services. Use of funds in your Good As Gold Account can only be made through the PrimePixels purchase process at PrimePixels’s website. Purchases may not be made unless there are sufficient, available funds in your Good As Gold Account at the time of purchase to cover the entire purchase amount, including any related fees as set forth herein or in other relevant agreements.
PAY BY CHECK (ELECTRONIC PAYMENT)
By using PrimePixels’s pay by check option (“Pay By Check”), you can purchase PrimePixels Services using an electronic payment (from your personal or business checking account (“Checking Account”), as appropriate). In connection, you agree to allow a third-party check services provider, Certegy Check Services, Inc., (“Check Services Provider”) to debit the full amount of your purchase from your Checking Account, which is non-refundable. Check Services Provider will create an electronic funds transfer (“EFT”) or bank draft, which will be presented to your bank or financial institution for payment from your Checking Account. The Checking Account must be at a financial institution in the United States, and payment must be in U.S. Dollars.
It is your responsibility to keep your Checking Account current and funded. You agree that (i) Check Services Provider or PrimePixels reserve the right to decline a transaction for any reason (including, but not limited to, payments that fail to go through as a result of your Checking Account no longer existing or not holding available/sufficient funds) and (ii) in such event, neither Check Services Provider nor PrimePixels shall be liable to you or any third party regarding the same. If for any reason Check Services Provider is unable to withdraw the full amount owed for the Services provided, you agree that Check Services Provider and PrimePixels may pursue all available lawful remedies in order to obtain payment (plus any applicable fees). PrimePixels is not responsible for the actions of Check Services Provider. You agree that if the EFT or bank draft is returned unpaid, you will pay a service charge in accordance with the fees permitted by law for each U.S. State. A help article describing the Check Services Provider and outlining the service charges referenced above can be found here. These fees may be debited from your Checking Account using an EFT or bank draft. All fees are in U.S. Dollars.
PrimePixels and its service providers, including but not limited to Check Services Provider and Complete Payment Recovery Services, Inc., may provide you with notices, including byemail, regular mail, SMS, MMS, text message, postings on the services, or other reasonable means now known or hereafter developed. Such notices may not be received if you violate these terms of service by accessing the services in an unauthorized manner. Your agreement to these terms of service constitutes your agreement that you are deemed to have received any and all notices that would have been delivered had you accessed the services in an authorized manner. Failure to receive such notices for any reason shall not excuse any payment or other obligation to PrimePixels and Check Services Provider. You further expressly authorize PrimePixels and its service providers, including but not limited to Check Services Provider and Complete Payment Recovery Services, Inc., and their affiliates to contact you, via auto-dialer, pre-recorded messages, or any other method, on any of your mobile phone numbers or emails. You further acknowledge that email addresses you provide are not shared, accessed by others and are not employer-related email addresses.
ADDITIONAL RESERVATION OF RIGHTS
PrimePixels expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by PrimePixels in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by PrimePixels in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry or registrar, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, (viii) to avoid any civil or criminal liability on the part of PrimePixels, its officers, directors, employees and agents, as well as PrimePixels's affiliates, including, but not limited to, instances where you have sued or threatened to sue PrimePixels, or (ix) to respond to an excessive amount of complaints related in any way to your Account, domain name(s), or content on your website that could result in damage to PrimePixels’s business, operations, reputation or shareholders.
PrimePixels expressly reserves the right to review every Account for excessive space and bandwidth utilization, and to terminate or apply additional fees to those Accounts that exceed allowed levels.
PrimePixels expressly reserves the right to terminate, without notice to you, any and all Services where, in PrimePixels's sole discretion, you are harassing or threatening PrimePixels and/or any of PrimePixels's employees.
PrimePixels Content. Except for User Content, the content on this Site and the Services , including without limitation the text, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“PrimePixels Content”), are owned by or licensed to PrimePixels in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. PrimePixels Content is provided to you “as is”, “as available” and “with all faults” for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of PrimePixels. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. PrimePixels reserves all rights not expressly granted in and to the PrimePixels Content, this Site and the Services, and this Agreement do not transfer ownership of any of these rights.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THIS SITE AND THE SERVICES FOUND AT THIS SITE SHALL BE AT YOUR OWN RISK AND THAT THIS SITE AND THE SERVICES FOUND AT THIS SITE ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. PrimePixels, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PrimePixels, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND/OR (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, AND PrimePixels ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY PrimePixels, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES), AND THIRD PARTY SERVICE PROVIDERS WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS SITE OR THE SERVICES FOUND AT THIS SITE, AND USERS SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
DISPUTES, BINDING INDIVIDUAL ARBITRATION AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE PROVISIONS REQUIRING YOU TO RESOLVE DISPUTES THROUGH INDIVIDUAL ARBITRATION.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and PrimePixels, except for disputes governed by the Uniform Domain Name Dispute Resolution Policy referenced above and available here. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and PrimePixels arising under or relating to any PrimePixels Services or Products, PrimePixels’s websites, these Terms, or any other transaction involving you and PrimePixels, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND PrimePixels AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR PrimePixels FOR (i) TRADE SECRET MISAPPROPRIATION, (ii) PATENT INFRINGEMENT, (iii) COPYRIGHT INFRINGEMENT OR MISUSE, AND (iv) TRADEMARK INFRINGEMENT OR DILUTION. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and PrimePixels further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms; (ii) these Terms memorialize a transaction in interstate commerce; (iii) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section; and (iv) this Section shall survive termination of these Terms. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction, as limited by the Limitation of Liability set forth in Section 15 of this Agreement and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or PrimePixels must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to PrimePixels must be addressed to: PrimePixels, 14455 N. Hayden Rd., Scottsdale, AZ 85260, Attn.: Legal Department (the “PrimePixels Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If PrimePixels and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or PrimePixels may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E) WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND PrimePixels AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. NEITHER YOU NOR PrimePixels WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OF PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR OTHER PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the Consumer Arbitration Rules of the AAA (“AAA Rules”) in conjunction with the rules set forth in these Terms, except that AAA may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. The AAA Rules are at www.adr.org or by calling 1-800-778-7879. If there is a conflict between the AAA Rules and the rules set forth in these Terms, the rules set forth in these Terms shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws, as limited by the Limitation of Liability set forth in Section 15 of this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall also have exclusive authority to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trademark infringement or dilution, which are excluded from the definition of “Disputes” as stated above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence (or principal place of business if you are a small business), or in Maricopa County, Arizona, at your option.
(G) Initiation of Arbitration Proceeding. If either you or PrimePixels decide to arbitrate a Dispute, we agree to the following procedure:
i. Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.adr.org (“Demand for Arbitration: Consumer Arbitration Rules”).
ii. Send one copy of the Demand for Arbitration to AAA by mail at American Arbitration Association Case Filing Services 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043.
iii. Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties.
FOR INDIA RESIDENTS ONLY
You expressly agree that: (i) PrimePixels (or its service provider) may contact you by phone in order to resolve your complaint or dispute, or your current service or billing issue; and (ii) in order to resolve such complaint, dispute or issue, PrimePixels may use and may disclose to its service provider the following information: call recordings, customer name, phone number(s) and contact preferences, tenure of your relationship with PrimePixels, products used, and information about the nature of your complaint, dispute, or service issue.