Last updated: November 30, 2021
(a) These terms and conditions for services (“Terms”) are the only terms that govern the provision of Service (as defined below) by X2X, LLC (“PIX”) to customer (“Client”) under an accompanying PIX-confirmed service order, purchase request, quote, and/or invoice (each and together, the “Order”).
(b) The Order and these Terms (collectively, “T&C”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order, the Order shall govern.
(c) These T&C prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for proposal, order, purchase request or such terms. Provision of Service to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these T&C.
(a) “Access Privileges” means rules entered into the PIX application by authorized Gatekeepers or administrators that define which Users are authorized to access which Content on a given Project, and what actions each User can perform on that Content. Access Privileges provide the ability to individually grant or revoke privileges at the individual User and Content item level.
(b) “Affiliate” means a company directly or indirectly controlled by, controlling, or under common control with Client. Client will identify the Affiliates who employ any Users.
(c) “API” means PIX’s application program interface specifications, and updates thereto.
(d) “Confidential Information” means information which a reasonable person would understand is confidential and proprietary to the disclosing party, including pricing and other terms reflected in an Order, the Content, the Service, the API, usernames and passwords of Users, non-public elements of the Project, information concerning the operations, business, financial affairs, products, product designs, technology, technical information, marketing plans, customers or other aspects of either party and its Affiliates; unless (i) publicly available without breach of any obligation owed to the disclosing party; (ii) already known by the recipient prior to disclosure by the disclosing party without breach of any obligation owed to the disclosing party, (iii) independently developed by the receiving party without breach of any obligation owed to the disclosing party, or (iv) received from a third party without breach of any obligation owed to the disclosing party.
(e) “Content” means the content and data submitted by Users to the Service for a Project and digitally stored, managed, and made available through the Service.
(f) “Documentation” means documents with the phrase “User Guide” in the title, and on-line help text related to the generally available version of the Service that PIX provides to Client and Users. Notwithstanding the above, documents and online help text marked as DRAFT or pertaining to software that is in beta form or not generally available to all clients does not constitute “Documentation” for the purpose of these T&C.
(g) “Gatekeeper(s)” means the person(s) authorized to determine, implement, modify, or communicate to PIX, the Access Privileges for the Service (and the Content thereon) on a particular Project.
(h) “Gatekeeper List” means the list of Gatekeepers (i) established by the Client and certain Project Parties pursuant to the Gatekeeper Rules, (ii) communicated to PIX by Client and the Project Parties, and (iii) used by PIX to manage access to the Service and the Content thereon.
(i) “Gatekeeper Rules” means a set of written rules agreed to by Client and the other Project Parties used to determine the Gatekeeper(s) and the scope of Gatekeeper(s)’ authority to modify the Access Privileges for a particular Project.
(j) “Project” means the development, pre-production, production, post-production, marketing, broadcasting, exhibition and/or distribution of a Client film, television program, commercial, or other media production.
(k) “Project Party” means an entity or individual other than Client or an Affiliate that is authorized by Client to be involved in a Project, and who may or may not have a separate agreement with PIX to access the Service for such Project (e.g. a producer, production company, or studio). On each particular Project, issues between the Project Parties regarding access and use of the Service and Content uploaded to it, will be resolved by and between Client and the various authorized Project Parties involved in managing the Project.
(l) “Service” means the application and services identified in an applicable Order and provided by PIX in a software-as-a-service model, including without limitation associated software, firmware, hardware, APIs and features provided by PIX, including any upgrades, modified versions, updates and additions.
(m) “Users” means named individuals authorized by Client or other Project Parties to access and use the Service pursuant to the Access Privileges, and the T&C. Users may include employees or consultants, contractors and agents of Client, its Affiliates or other Project Parties.
3. Service Conditions:
(a) Provision of Service. PIX will provide the Service for a particular Project or set of Projects pursuant to these T&C. In connection therewith, PIX hereby grants Client a limited, non-exclusive, revocable, non-transferable, non-assignable right and license to access and use the Service for legitimate business uses for a particular Project or set of Projects pursuant to these T&C. The Service is subject to terms and limitations on Projects, Users, and Project Parties as set forth in the Order. Each User assigned by Client must be a separate named individual. Sharing of passwords and other access codes among Users is strictly prohibited.
(b) PIX Responsibilities. PIX shall: (i) in addition to its confidentiality obligations hereunder, not use the Content; (ii) upon detection, notify Client as soon as commercially reasonably possible of any unauthorized access or use of the Content; and (iii) make commercially reasonable efforts to resolve any unauthorized access or security incidents.
(c) Client Responsibilities. Client shall use the Service solely for its internal business purposes in conducting Projects as contemplated by these T&C, and shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to authorized named Users or as otherwise contemplated by these T&C. Client is responsible for all activities that occur in user accounts and for Users’ compliance with these T&C. Client will make commercially reasonable efforts to ensure Users will protect the confidentiality of all Passwords. Client will use the Service in accordance with the Documentation and will remain in substantial compliance with the customer responsibilities for security specified by PIX. Client shall not attempt to gain or grant unauthorized access to the Service to any person, will otherwise use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and will promptly notify PIX of any such unauthorized access or use. Client shall not send or store any content or information that violates applicable laws or violates third party privacy rights, and will comply with all applicable local, state, federal and foreign laws in using the Service.
(d) Access. Client is responsible for coordinating with any other Project Parties to establish a set of Gatekeeper Rules for each particular Project, and for keeping PIX apprised of the Gatekeeper Rules and Gatekeeper List. PIX agrees that new Project Parties on an established Project will be subject to inclusion by the existing Gatekeeper(s) pursuant to the Gatekeeper Rules established by Client and other previously established Project Parties. PIX administrators will work with Gatekeeper(s), as requested, to permit (and restrict) access and use of the Service for a particular Project pursuant to the Access Privileges.
(e) Hardware. Unless otherwise stated in an applicable Order, Client is solely responsible for obtaining, installing and maintaining suitable equipment and associated software which are or may become necessary to access and use the Service. Minimum systems requirements apply to the use of the Service, and it is Client’s responsibility to comply with them. Upon delivery to Client of any rented hardware as provided in the Order, Client will be responsible for any damage to the hardware except for ordinary wear and tear.
(f) Content. Client is solely responsible for the accuracy, quality, integrity, non-infringement, legality, reliability, and appropriateness of its own Content, and for the development and maintenance of any backup and security procedures to protect its Content, except where the Order expressly allocates such responsibility to PIX. PIX recommends that Client backs up and encrypts all of its Content on its own systems. PIX will use commercially reasonable efforts to secure the Content when in PIX’s possession, subject to any rights of any User, Affiliate, or Project Party. Except as otherwise provided herein, in case of loss of or damage to Content when in PIX’s possession, PIX’s liability will be limited to restoring any applicable backups created per PIX’s standard practices.
(g) Client Operations. Client will appoint one or more project managers with authority to act for Client in performing and exercising rights under these T&C. PIX will rely upon the authority of such managers in providing the Service to Client and otherwise performing hereunder. Client is responsible for notifying its Users of PIX’s right to monitor and report their use of the Service to Client for compliance purposes and will indemnify PIX against any claim by a User arising from the proper exercise by PIX of such right to monitor User’s use of the Service and report on such User’s use of the Service to Client.
(i) Affiliate Orders. Affiliates may purchase services subject to these T&C by executing additional Orders hereunder.
4. Proprietary Rights:
(a) Reservation of Right. Subject to the limited rights expressly granted hereunder, PIX reserves all rights, title and interest in and to the Service, Documentation, and any modifications and improvements thereof, whether developed by PIX, Client, or by the parties jointly, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.
(b) Restrictions. Client shall not directly or indirectly (i) modify, copy or create derivative works based on the Service; (ii) frame or mirror any content forming part of the Service, other than on Client’s own intranets or otherwise for its own internal business purposes; (iii) remove, obscure, alter or omit any copyright, trademark, patent or other legal notices affixed to, or to the media or packaging of, or displayed by or in connection with, the Service; (iv) reverse engineer the Service; (v) send or store malicious code, or otherwise interfere with or disrupt the integrity or performance of the Service or the materials contained therein; (vi) perform load tests, Service network scans, penetration tests, ethical hacks or any other security auditing procedures, except as may be permitted by the PIX; or (vii) access the Service in order to (A) compete or build a competitive product or service, or impair the market for the Service or any part thereof, (B) copy any ideas, features, functions or graphics of the Service, or (C) alter, disable or circumvent any security, reliability, integrity, accounting or privacy mechanism of, the Service or any part thereof.
(c) Content. As between PIX and Client, PIX makes no assertion of ownership of the Content and acknowledges Client’s assertion that Client or other Project Parties exclusively owns all rights, title and interest in and to all Content. Content is deemed Confidential Information under these T&C.
(d) Suggestions. PIX shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, nonexclusive, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Client or Users relating to the operation of the Service.
5. Fees and Payment.
(a) Fees. Client will pay the fees set forth in an Order. Except as otherwise provided, all fees are payable in full, without deduction or offset, upon invoicing by PIX. Except as otherwise specified herein or in an applicable Order, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, and fees paid are non-refundable.
(b) Invoicing & Payment. Fees for the Service will be invoiced in accordance with the Order. Unless otherwise stated in an applicable Order, charges are due net 30 days from the invoice date.
(c) Overdue Payments. If Client does not pay any amounts within 30 days after invoice, these amounts (except with respect to charges then under reasonable and good faith dispute) will be subject at PIX’s discretion to an interest charge at the rate of 1.5% per month, or the maximum legal rate, whichever is lower, until paid in full. Client will reimburse PIX for all reasonable costs and attorneys’ fees incurred in collecting past due amounts.
(d) Suspension of Service. If Client’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, PIX reserves the right to suspend the Service provided to Client, without liability to Client, until such amounts are paid in full.
(e) Taxes. Unless otherwise stated, PIX’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on PIX’s income or property. If PIX has the legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides PIX with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Warranty; Disclaimer.
(a) Service Warranty. During the Term, PIX warrants that (i) it will provide the Service in a manner consistent with generally accepted industry standards reasonably applicable to the provision thereof, and (ii) the Service shall perform materially in accordance with the Documentation. The sole remedy of Client and the sole liability of PIX for any breach of this warranty is PIX’s re-performance of the applicable Service.
(b) Disclaimer. PIX AND ITS SUPPLIERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, IMPENETRABLE BY UNAUTHORIZED PERSONS, ERROR–FREE, OR WILL MEET THE REQUIREMENTS OF CLIENT. PIX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE API, 3rd-PARTY APPLICATIONS, APPLICATIONS INTEGRATED WITH THE SERVICE, OR ANY SAMPLE CODE (SOURCE, OBJECT, OR EXECUTABLE) PROVIDED. EXCEPT AS EXPRESSLY STATED IN SECTION 5, PIX AND ITS SUPPLIERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PROVIDED THAT PIX ADHERES TO THE ESTABLISHED GATEKEEPER RULES AND ACCESS PRIVILEGES, PIX WILL NOT BE HELD LIABLE TO CLIENT, ANY PROJECT PARTY, OR ANY OTHER PARTY REGARDING ACCESS TO THE SERVICE OR THE CONTENT STORED THEREON BY THE OTHER PARTIES OR THEIR AUTHORIZED USERS.
7. Confidential Information
Each party will diligently and reasonably safeguard and prevent disclosure to third parties of the Confidential Information of the other party, during the term of the applicable Order and for a period of two (2) years thereafter. Receiving party will not disclose the other party’s Confidential Information to any third party or use, copy, or modify the other party’s Confidential Information other than its own use as necessary to access, use, or provide the Service or as permitted under these T&C. If receiving party is compelled by law to disclose Confidential Information of disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure. Receiving party agrees that the breach or threatened breach of any of the terms of this Section 7 will cause the other party irreparable injury, and that the disclosing party may obtain injunctive relief against such breach or threatened breach without the necessity of proving actual damages or posting bond or other security, it being specifically acknowledged by the parties that any other available remedies are inadequate.
(a) By PIX. PIX will indemnify Client, its Affiliates and their respective shareholders, affiliates, employees, agents, successors, officers, and assigns, from any third party claims (a “Claim”) alleging that the Service infringes any third party U.S. intellectual property right. PIX has no liability for any Claim to the extent the alleged infringement is based on: (1) modification of the Service except by PIX; (2) combination of the Service with other materials or systems not provided by PIX; or (3) use of the Service other than in accordance with these T&C. In case of a Claim, PIX may either: (i) replace or modify the Service to be non-infringing, with at least substantially similar functionality; (ii) obtain for Client a license to continue using the Service; or (iii) if these are not reasonably feasible, terminate the applicable Order and refund to Client unearned fees.
(b) By Client. Except for Claims under Section 9(a), Client will defend and indemnify PIX, its Affiliates, and their respective shareholders, affiliates, employees, agents, successors, officers, and assigns, from any Claim (1) arising out of Client’s breach of these T&C, use of the Service, or any materials available through the Site, or any Content provided by Client, or (2) alleging that the Content infringes any third-party intellectual property right.
(c) Conditions to Indemnification. The indemnified party will promptly notify the indemnifying party of the Claim and support the defense on reasonable request. The indemnifying party may, at its cost, control, and the indemnified party may, at its cost, participate in, the defense of a Claim.
(d) Exclusive Duties. THE PROVISIONS OF THIS SECTION 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF EACH PARTY TO THE OTHER PARTY AND EACH PARTY’S SOLE REMEDY WITH RESPECT TO ANY CLAIM ARISING FROM THIRD-PARTY CLAIMS.
NEITHER PARTY OR THEIR SUPPLIERS WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS, CORRUPTION OF DATA, ERRORS, UNAVAILABILITY OF THE SERVICES, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF CLIENT’S PAYMENT OBLIGATIONS UNDER THESE T&C, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY AND ITS SUPPLIERS IN CONNECTION WITH ANY OF THE SERVICES PROVIDED UNDER THESE T&C WILL IN NO EVENT EXCEED THE FEES PAID OR PAYABLE TO PIX BY CLIENT IN THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE SUBJECT CLAIM AROSE.
10. Term and Termination
(a) Term. These T&C commence when the Service provision under the Order begins and shall continue thereafter unless terminated as permitted hereunder. Except as otherwise set forth in the applicable Order, the Order will automatically renew for successive periods equal to the previous subscription term at the list price in effect at the time of renewal unless either party gives written notice of non-renewal at least (a) three (3) months prior to the end of the then-current subscription period for subscriptions that are longer than six (6) months; or (b) one (1) month prior to the end of the then-current subscription period for subscriptions that are shorter or equal to six (6) months.
(b) Termination for Convenience. Unless specifically stated in an Order, the parties may not terminate an Order for convenience.
(c) Termination for Cause. Either party may terminate these Terms or a particular Order if the other party: (1) fails to cure any material breach hereunder within 30 days of receiving written notice of breach; or (2) commits a material breach that by its nature is incurable. Upon termination of these T&C for any reason: (i) Client will pay all fees accrued as of the effective date of termination; (ii) Client’s right to access and use the Service will terminate; (iii) upon 30 days written notice to Client after termination, PIX may delete all Content stored by Client in the Service unless otherwise mutually agreed in writing and except as stated herein; (iv) Client will return to PIX any of PIX’s hardware leased or loaned to it within ten (10) days of termination; and (v) all rights and obligations of the parties which by their nature or express terms survive termination will continue until fully performed.
11. General Provisions
(a) Survival. Section 9 of these Terms shall survive the termination of the applicable Order.
(b) Notices. All notices required or permitted under these T&C must be in writing to the address indicated by the party to be served and will be deemed effective: (1) upon delivery, if via personal delivery; (2) one business day after sending, if via overnight delivery; (3) five business days after mailing, if via certified prepaid U.S. mail, return receipt requested; (4) upon electronic confirmation, if via fax; or (5) upon acknowledgement, if via email. If PIX is served with a legal notice, a copy of such notice shall be emailed to PIX’s Legal Department at: firstname.lastname@example.org.
(c) Assignment. Neither party may assign or delegate these T&C without the other party’s prior written consent, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either party may assign its rights or delegate its obligations under these T&C without the other party’s prior written consent to an entity that obtains control of the business of the assigning party that is primarily receiving the benefits of these T&C. These T&C will be binding on and inure to the benefit of the parties, their heirs, successors and permitted assigns.
(d) Governing Law. These T&C are governed by the laws of the State of California, without regard to their conflicts of laws rules.
(e) Disputes. The parties will first attempt to resolve any dispute under these T&C by mediation. If they are unable to do so, the parties submit all their unresolved disputes arising out of or in connection with the T&C to the exclusive jurisdiction of the courts located in San Francisco county, California. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction.
(f) Planned Downtime and Force Majeure. PIX will use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond PIX’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving PIX’s employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within PIX’s possession or reasonable control, denial of service attacks, errors in any Content or the electronic files or other media on which it is provided, or unauthorized use or misuse by Users or any other third party using any Users’ password.
(g) Publicity. Neither party may issue press releases relating to these T&C without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
(h) General. If any provision of these T&C is held unenforceable, the enforceability of the remaining provisions will not be affected. A waiver of any provision or breach is not a waiver of any other provision or breach. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control. The parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended by these T&C