TERMS OF SERVICE

PLEASE READ THE FOLLOWING TERMS OF SERVICE BEFORE SUBMITTING YOUR ORDER TO FotoPixelz.COM (“FotoPixelz”). THESE TERMS OF SERVICE ALONG WITH ALL RULES AND POLICIES RELATING TO ’S SERVICES AS STATED ON FotoPixelz’S WEBSITE, INCLUDING FotoPixelz’S PRIVACY POLICY, (COLLECTIVELY, THE “AGREEMENT”) WILL PROVIDE YOU WITH INFORMATION ABOUT WHAT YOU CAN EXPECT FROM FotoPixelz’S SERVICES AND FORMS A LEGAL AGREEMENT BETWEEN US. YOUR USE OF FotoPixelz’S SERVICES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.

1. Images

For best results, please submit images that meet FotoPixelz’s guidelines for resolution and file format. FotoPixelz works hard to make sure the edited images it returns to You are the quality our customers have come to expect from FotoPixelz. The returned image will be deemed accepted by You upon receipt, unless within seven (7) days You contact FotoPixelz though Your account page on FotoPixelz’s website and detail an error by FotoPixelz with respect to the image. FotoPixelz is committed to customer satisfaction and will work with You to correct any FotoPixelz error as determined in FotoPixelz’s sole discretion, including but not limited to re-performing its services to correct such an error. You will review any corrected image and accept or reject the same in accordance with this Section 1 (“Images”). This process shall repeat itself until the returned image is deemed accepted. FotoPixelz deletes from its system all images approximately thirty (30) days after their respective acceptance. FotoPixelz is not responsible for the quality of returned images if the image You originally submitted does not meet FotoPixelz’s then-current guidelines.

2. Delivery

FotoPixelz returns the images to You via a public web address (e.g., URL). Although FotoPixelz utilizes means to make Your edited image available only to You, there are inherent security limitations in a public web address which FotoPixelz cannot and will not rectify and for which FotoPixelz will not be liable. You are able to retrieve your edited images by downloading them from FotoPixelz’s website, and in addition FotoPixelz may permit retrieval through an FTP server or other mechanism. FotoPixelz offers different service pricing based on different requested delivery dates. FotoPixelz prioritizes its orders based on requested delivery dates and recognizes that FotoPixelz will have satisfied and returning customers if it meets the requested delivery dates. FotoPixelz will use commercially reasonable efforts to deliver Your image within the time frame requested, but FotoPixelz does not guarantee that an order will meet its requested delivery date. If the actual date FotoPixelz returns Your edited image is in a different delivery tier from the price You paid (e.g., You paid for 24 hour service but FotoPixelz returned the image within 72 hours), You may contact FotoPixelz through your account page, detail the date ordered, the requested delivery date and the date actually delivered, and FotoPixelz will refund any difference as if You had requested the delivery date in which FotoPixelz actually delivered the edited image. In rare instances, particularly large orders may surpass FotoPixelz’s processing capacity for a requested delivery date, in which case FotoPixelz will contact You to determine how best to restructure Your order.

3. Payment

The price of the service ordered shall be set forth in FotoPixelz’s price list then in effect when FotoPixelz accepts Your order. FotoPixelz reserves the right to change its price list without prior notice. All payments shall be made in United States Dollars. FotoPixelz will process your payment upon submission of Your order and will accept Your order upon verified payment. FotoPixelz may consider extending a line of credit to large volume, repeat customers on a case by case basis, in which circumstance FotoPixelz will invoice such customers on a monthly basis. You are responsible for paying any applicable taxes, duties or tariffs relating to your order, except taxes on FotoPixelz’s income. Notwithstanding the payment terms, all other terms of this Agreement apply to any free trial. Free trials are limited to product images only (e.g., no pet, person, logo or landscape images) and machine-like or automated submissions (e.g., multiple free trial requests from the same IP address) will not be accepted.

4. Rights to Use Image

You are solely responsible for the images you submit. FotoPixelz reviews submissions for inappropriate material and reserves the right in its sole discretion to reject any image for any reason or no reason; however, FotoPixelz’s acceptance of an image for processing should not be construed as a determination of Your rights to use the image. By submitting an image to FotoPixelz, You represent and warrant that You have the legal authority to enter into this Agreement, that you have the right to use any credit card(s) or other payment means used to initiate any transaction, that any images You submit to FotoPixelz do not contain any materials (such as malicious software code or viruses) that may harm FotoPixelz’s or its subcontractors’ property, and You hereby grant FotoPixelz a non-exclusive, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses including but not limited to FotoPixelz’s subcontractors) perpetual, irrevocable license under all intellectual property rights throughout the world (including but not limited to copyrights, trademarks, trade secret, moral, publicity and privacy rights) to reproduce, modify, edit, make derivate works from, distribute (through multiple tiers), publicly perform and display and otherwise use the image as reasonably necessary for FotoPixelz and its subcontractors to perform the services You requested hereunder. You agree to indemnify and hold harmless FotoPixelz, its subcontractors, licensors and affiliates and their directors, officers, shareholders, employees and agents from any and all claims, liabilities or expenses (including without limitation attorneys’ fees) that arise directly or indirectly from Your breach of this Agreement.

5. Marketing

The use of FotoPixelz services grants FotoPixelz permission to use your name or logo in any FotoPixelz' marketing material to identify You as a FotoPixelz customer.

6. Disclaimer of Warranties

EXCEPT FOR THE PROCEDURE SET FORTH IN SECTION 1 (“IMAGES”), THE SERVICES ARE PROVIDED “AS IS”. NEITHER FotoPixelz NOR ITS LICENSORS OR SUBCONTRACTORS MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES PROVIDED HEREUNDER. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MECHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

7. Limitation of Liability

IN NO EVENT WILL FotoPixelz, ITS LICENSORS OR SUBCONTRACTORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, REVENUE, SAVINGS, BUSINESS, DATA OR GOODWILL, HOWEVER USED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE ON ANY THEORY OF LIABILITY, WHETHER OR NOT FotoPixelz OR A LICENSOR OR SUBCONTRACTOR OF FotoPixelz WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, FotoPixelz AND ITS LICENSORS AND SUBCONTRACTORS’ TOTAL LIABILITY TO YOU ARISING FROM OR IN RELATION TO THIS AGREEMENT OR FotoPixelz OR ITS SUBCONTRACTORS’ PERFORMANCE OF THE SERVICES SHALL BE LIMITED TO THE TOTAL PAYMENTS TO FotoPixelz FOR THE SERVICES PERFORMED ON THE RELEVANT IMAGE. IN NO EVENT WILL FotoPixelz OR ITS LICENSORS OR SUBCONTRACTORS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY TO PERSONS OR TANGIBLE PROPERTY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU.

8. Basis of Bargain

The parties acknowledge that FotoPixelz has set its prices in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

9. Term

This Agreement shall be effective from the date You submit an image to FotoPixelz until the date the returned image is deemed accepted, provided that FotoPixelz may terminate this Agreement at any time and will return the fees paid by You for any image that FotoPixelz has not edited and FotoPixelz may or may not in FotoPixelz’s sole discretion return fees paid for edited images not yet deemed accepted. Sections 3-9 of these Terms of Services, and any other provisions by their very nature, shall survive the expiration or termination of this Agreement.

10. General Provisions

This Agreement applies only to You and may not be assigned or transferred by You. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of FotoPixelz. This Agreement will be governed by and construed according to the laws of California, U.S.A. without regard to that body of law controlling conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event of any dispute or claim arising out of this Agreement, the parties shall submit to arbitration with the American Arbitration Association in Santa Clara County, California, U.S.A. or other mutually agreeable arbitration service or location. This Agreement is written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require. The headings used in this Agreement are for convenience of reference only and shall not in any way affect the interpretation of the provisions of this Agreement. FotoPixelz shall not be liable for any alleged loss or damages resulting from failure to perform due to acts of God, natural disasters, strike, shortages of labor, acts of civil or military authority, governmental priorities, fire, floods, epidemics, quarantine, energy crises, war, riots or interruption of FotoPixelz’s production for reasons beyond FotoPixelz’s reasonable control. FotoPixelz may amend this Agreement at any time, and the terms that will govern FotoPixelz’s service of a particular image are those in effect on the date You submit the image. No waiver will be implied from conduct or failure to enforce rights. If any part of this Agreement is found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law and the remainder of this Agreement will remain in full force. In case of conflict between these Terms of Service and any other statement on FotoPixelz’s website, these Terms of Service shall control. This Agreement represents the entire agreement between the parties relating to its subject matter and supersedes all other representations