This Terms of Service (“TOS”) governs Your access to and use of Pixlee's provided software and hosted software-as-a-service digital content management platform, including other third party software or hosted cloud service providers, inclusive of such limitations or optional features as may be specified to You in any user documentation or order form ("collectively, Subscription"). When You execute an order form for the Subscription, which may include a statement of work (“Order Form”) referencing this TOS, the Order Form and this TOS together form an agreement (the “Agreement”) between the person or entity executing the Order Form (“You” or “Customer” or “Your”) and Pixlee, Inc., and its subsidiaries and affiliates as applicable, ("Pixlee" or “We” or “Our” or “Us”).
1.1 Provision of Subscription We shall make the Subscription available to You pursuant to this Agreement and the relevant Order Form during the subscription term indicated on the Order Form (the “Term”). You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Pixlee reserves the right to modify and update the features and functionality of the Subscription from time to time in its sole discretion, and may offer features, in advance of a general release to all customers, to test its products.
2.1 Access Subject to all terms and conditions herein, Pixlee hereby grants to You the right to access and use the Subscription during the Term as expressly agreed in applicable Order Form(s) and strictly limited to Your legitimate business purposes. You represent and warrant that you have all the rights necessary for any use of third-party content, including, but not limited to, photos, videos, or other digital content and associated data (collectively, "Content") used during the Subscription. You are solely responsible for the use of any Content during the Subscription. You will have sole discretion as to which Content You will collect and utilize in connection with Your use of the Subscription. Pixlee has no obligation to monitor or edit Your use of Subscription and shall process Content as directed by You. Pixlee reserves the right to remove any Content from the Subscription which Pixlee reasonably believes may violate the Agreement, or any law, rule or regulation or infringement, misappropriate or violation of any third-party intellectual property right or privacy right or reasonably expose either party to liability. You acknowledge that all content shall be subject to Pixlee's policies, including Pixlee's U.S. Digital Millennium Copyright Act of 1998 ("DMCA") Policy, which may be found at https://www.pixlee.com/dmca. PIXLEE IS A THIRD-PARTY INTERMEDIARY WHO SOLELY TRANSFERS CONTENT FROM THE END USER TO CUSTOMER. PIXLEE IS NOT RESPONSIBLE FOR ANY COPYRIGHT INFRINGEMENT, PRIVACY OR MISAPPROPRIATION CLAIMS, OR ANY OTHER CIVIL LIABILITY RESULTING FROM YOUR USE OF THE CONTENT. You represent and warrant to use best practices and not to violate any applicable laws, rules, regulations or third-party rights in connection with Your use of Subscription. You may use third party subcontractors strictly for legitimate internal business purposes in Your use of Subscription, but You will remain fully responsible for all activities occuring under Your Subscription account.
2.2 Customer Data All data that You collect or utilize in connection with the Subscription is defined as ("Customer Data"). You acknowledge that the implementation of certain Subscription analytics features requires the use of cookies by Pixlee, and You have all necessary rights and permissions for such use during the term of this Agreement. You shall ensure that: (i) any website used in connection with the Subscription contains privacy policies and applicable notes that comply with all applicable laws, rules and regulations; (ii) all notices are provided to, and all consents are obtained from, applicable third parties for the collection, use and disclosure of any Content or Customer Data as contemplated hereunder, in each case as necessary under applicable law or as required to meet reasonable best practices and; (iii) the Content collected from third party platforms using the Subscription is in itself compliant with the terms of service laid out by these platforms, such as but not limited to, https://www.youtube.com/t/terms. You hereby grant Pixlee a limited, worldwide, non-exclusive, royalty-free license: (i) during the term to use, reproduce, distribute, make derivative works of, transmit, have transmitted, perform, display, store, archive, and index any Content or Customer Data in order to set up, provide or support Your Subscription; (ii) to collect and use any Customer Data relating to Your usage of the Subscription, including third-party interactions with Content or websites in order to provide the Subscription to You during the term, strictly for internal business purposes or to improve Pixlee's Subscription, products, algorithms and/or services; (iii) disclose aggregated Customer Data relating to the use of the Subscription only so long as such aggregated Customer Data is not identified as relating to You; and (iv) during the term to display and use Your trademarks on Pixlee's website and marketing materials for purposes of identifying You as a Pixlee customer. Pixlee shall establish and maintain technical and organizational security measures to protect against the destruction, loss, alteration, unavailability and unauthorized access to Customer Data in the possession of or under the control of Pixlee.
2.3 General Restrictions and Limitations. Section 2.1 sets forth the entirety of Your right to access and use the Subscription. You acknowledge that use of the Subscription is provided only for Your own internal and lawful use and agree not to use the Subscription for the benefit of any third party. You agree not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Subscription, or make the Subscription available to any third party or use the Subscription on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Subscription or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Subscription; (iii) disseminate performance information relating to the Subscription; (iv) use the Subscription to develop a competitive product offering; or (v) use any automated means (such as robots or scripts) to access the Subscription except as may be enabled and authorized by Pixlee. You may not access or use the Subscription to: (1) promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury; (2) spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including but not limited to: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin or any other form deemed contrary to fundamental human rights and freedoms; or (3) involve any illegal activities or activities that are contrary to morality or public order. You may not access or use the Subscription if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Subscription for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
2.4 Image Removal You acknowledge and agree that Pixlee may remove, or may request You remove, any Content from the Subscription: (i) in connection with a request made by a purported copyright holder, including a request made pursuant to the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”), which can be made at Pixlee’s DMCA Policy (https://www.pixlee.com/dmca); (ii) that Pixlee reasonably believes to violate any third party intellectual property right, right of privacy or publicity, other third party right or any law, rule or regulation; or (iii) that Pixlee reasonably believes may expose Pixlee to any civil or criminal liability. You shall promptly comply with any such request by Pixlee. In the event damages result from an infringement of copyrights, proprietary rights, rights of privacy or publicity, or any other harm resulting from your collection or use of Content, you shall be solely liable for any damage resulting from such infringement. You acknowledge and agree that Pixlee has no obligation to monitor the Content provided by Your end users or stored within the Subscription by You and shall have no responsibility or liability with respect thereto. PIXLEE IS A THIRD-PARTY INTERMEDIARY WHO SOLELY TRANSFERS CONTENT FROM THE END USER TO YOU. PIXLEE IS NOT RESPONSIBLE FOR ANY COPYRIGHT INFRINGEMENT, PRIVACY OR MISAPPROPRIATION CLAIMS, OR ANY OTHER CIVIL LIABILITY RESULTING FROM YOUR USE OF THE CONTENT.
2.5 Reservation of Rights Subject to the limited rights expressly granted hereunder, as between the parties Pixlee reserves all right, title and interest in and to the Subscription, and any software, technology, materials and information acquired, created, authored, made, conceived or reduced to practice by Pixlee (all of the foregoing, “Pixlee Technology”), including without limitation all intellectual property rights related to any of the foregoing. No rights are granted to You hereunder other than as expressly set forth herein. You are not required to provide any ideas, feedback or suggestions regarding any of Pixlee’s products or Subscription (“Feedback”) to Pixlee. To the extent You do provide Feedback to Pixlee, You hereby grant to Pixlee a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to You.
Support services will be delivered by Pixlee in accordance with Pixlee's then-current support terms (https://pixlee.com/service-level-agreement) as they may be restated from time to time yby Pixlee's Service Level Agreement ("SLA"). Pixlee agrees that any such support services shall not be materially reduced during the Term of this Agreement.
4.1 FeesYou shall pay Pixlee the fees, costs and expenses set forth or referenced on the Order Form. Except as otherwise specified herein or in an Order Form (i) fees are based on Subscriptions purchased and are payable in advance, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
4.2 Invoicing and Payment Terms All undisputed invoices are payable within thirty (30) days of the invoice date and shall be deemed to be undisputed unless Pixlee receives written notice of the basis for the dispute within thirty (30) days of the invoice date. All payments will be made in U.S. dollars and without any deductions for any reason. Any amounts due to Pixlee under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. You shall indemnify, defend and hold harmless Pixlee from any reasonable costs associated with collecting fees due under the terms of this Agreement. Pixlee reserves the right to immediately suspend Subscription if You are delinquent on payment for undisputed amounts and Pixlee has not received payment within fifteen (15) business days after written notice of such late payment is provided to You. Any pre-printed purchase order terms or conditions set forth on Your purchase orders or other documents provided by You in connection with payments hereunder shall have no force or effect on Pixlee.
4.3 Taxes You are responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Pixlee’s net income, or furnishing Pixlee with evidence acceptable to the taxing authority to sustain an exemption therefrom.
5.1 Term This Agreement shall continue until the end of the Term as specified in the Subscription Order Form, and shall automatically renew for successive periods of one year each unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the renewal date. The Fees may automatically adjust for each renewal period in accordance with Company’s then-standard fee schedule.
5.2 Suspension or Termination by Pixlee Pixlee may immediately suspend or terminate the Subscription (in whole or in part) at any time if Pixlee reasonably determines that You are in material breach of this Agreement or such action is warranted to: (i) prevent errors or any other harm with respect to the Subscription; or (ii) limit Pixlee’s liability or reasonably foreseeable economic or reputational loss to Pixlee.
5.3 Effect of Termination Upon termination for any reason, You shall promptly delete any and all software provided by Pixlee for use of the Subscription. You shall indemnify, defend and hold harmless Pixlee for any and all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from damages related to Your failure to delete software after termination. Pixlee will have no obligation to provide the Subscription to You after the effective date of termination; You will pay Pixlee any amounts due for Your use of the Subscription through the effective date of termination. Fees are non-refundable and non-cancellable, except as explicity described herein in Section 8.1. Pixlee will refund any pre-paid fees by You on a pro-rated basis based on the Subscriptions provided as of the date of termination. Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
PIXLEE DOES NOT WARRANT RESULTS OF USE OR THAT THE SUBSCRIPTION IS ERROR-FREE, VIRUS-FREE OR THAT USE OF THE SUBSCRIPTION WILL BE UNINTERRUPTED. SUBSCRIPTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT OF THE LAW, PIXLEE DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
From time to time, Pixlee may include beta or test versions of its platform or various features contained therein, You acknowledge that these beta or test components contain software that is prerelease code and is not at the level of performance or capability of a final product and is subject to Our Beta Test Agreement which can be found here. By using Our platform, You agree to be bound by this Beta Test Agreement.
8.1 Indemnity by Pixlee Pixlee will defend You and indemnify You against costs, damages and expenses (including reasonable legal fees) paid to unaffiliated third parties and arising out of any claim that the Subscription, during the Term, infringes any U.S. patent, copyright, trade secret or trademark (“Claim”); provided that: (i) You promptly notify Pixlee in writing after Your receipt of notification of a potential Claim; (ii) Pixlee shall have an opportunity to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) You provide Pixlee, at Pixlee’s request and expense, with the assistance, information and authority necessary to perform Pixlee’s obligations under this Section. Notwithstanding the foregoing, Pixlee shall have no liability for any Claim to the extent it is based on (i) Your written specifications or direction, or (ii) You or any agent of Yours’ modification of the Subscription. If, due to a Claim, (i) the Subscription is held by a court of competent jurisdiction to be or are believed by Pixlee to infringe, or (ii) You receive a valid court order enjoining You from using the Subscription, Pixlee may at its expense, (i) replace or modify the Subscription to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for You the necessary rights or licenses to continue using the Subscription or (iii) terminate its indemnity obligation for further activity by requesting that You cease use of the Subscription and then refunding to You the unamortized portion of the fees for the Subscription at issue hereunder (assuming amortization on a straight-line basis over the Term of the Agreement).
8.2 Indemnity by You You shall defend, indemnify and hold Pixlee and its directors, officers, employees and contractors harmless from and against any and all claims, actions, demands, suits, damages, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of and access to the Subscription, including any Content or other data transmitted or received by You; (ii) Your violation of any term or condition herein; (iii) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Your violation of any applicable law, rule or regulation; and (v) the receipt, posting, transmission or storage of any Content by or on behalf of You; provided, that Pixlee: (a) promptly gives You written notice of the claim; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle any claim without Pixlee’s prior written consent that would impose any restrictions Pixlee’s business activities, such consent not to be unreasonably withheld, delayed or conditioned); and (c) provides to You all reasonable assistance, at Your expense.
Each party shall keep confidential and not disclose to any third party or use (except as required by this Agreement), any non-public information, obtained from the other party (“Confidential Information”); provided, however, that neither party shall be prohibited from disclosing or using Confidential Information that: (i) is publicly available or becomes publicly available through no act or omission of the receiving party, (ii) is or has been rightfully disclosed to such party by a third party who is not under an obligation of confidentiality with respect thereto, (iii) is or has been independently developed by such party, without use or reference to the other party’s Confidential Information, or (iv) must be used or disclosed under court order or applicable law, provided such use or disclosure is to the minimum extent required by such court order or applicable law. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.
NOTWITHSTANDING ANYTHING ELSE HEREIN, EXCEPT FOR BODILY INJURY OR ANY DUTY FOR WHICH A PARTY IS OBLIGATED TO INDEMNIFY AND DEFEND THE OTHER PARTY IN ASSOCIATION WITH THIS AGREEMENT OR ANY ORDER FORM, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR (II) EXCEPT FOR YOUR FAILURE TO PAY ANY AMOUNTS UNDER THE TERMS OF THIS AGREEMENT, FOR ANY AMOUNT GREATER THAN THE AMOUNT ACTUALLY PAID (PLUS, IN THE CASE OF YOU, OWED) TO PIXLEE UNDER THE APPLICABLE ORDER FORMS IN WHICH THIS AGREEMENT IS REFERENCED DURING THE 12 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION FIRST AROSE.
11.1 Assignment Neither party may assign its rights or delegate its obligations under this Agreement, except that either party may assign its rights and obligations to a successor who acquires substantially all a party's relevant assets or business.
11.2 Venue, Governing Law This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act are hereby excluded in their entirety from application to this Agreement. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved within a period of thirty (30) days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute ("JAMS"). The parties' consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorney's fees.
11.3 Force Majeure Neither party shall be liable to the other for any delay or failure to perform (excluding failures to make any payments due hereunder), which is due to causes beyond the reasonable control of said party, including, but not limited to, acts or omissions of a third party, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity (including legislation that makes performance herein impossible, impractical, or economically unreasonable), fires, floods, power outages, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes (a “Force Majeure Event”).
11.4 Entire Agreement This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous oral and written proposals, negotiations, representations, commitments and other communications between the parties. This Agreement may not be released, discharged, changed or modified except by a written instrument that is signed by duly authorized representatives of each party.
This Data Processing Addendum (DPA) amends the Pixlee TOS (Terms of Service) and sets out the terms that apply when Personal Information is processed by Pixlee under the Agreement. The purpose of the DPA is to ensure such processing is conducted in accordance with applicable laws and with due respect for the rights and freedoms of individuals whose Personal Information are processed. Other capitalized terms used but not defined in this DPA have the same meanings as set out in the Agreement.
1.1 For the purposes of this DPA:
a) “EEA" means the European Economic Area, which constitutes the member states of the European Union, the United Kingdom, Norway, Iceland and Liechtenstein.
b) “California Consumer Privacy Act of 2018” or “CCPA” means Assembly Bill 375 of the California House of Representatives, an act to add Title 1.81.5 (commencing with Section 1798.100) to Part 4 of Division 3 of the Civil Code, relating to privacy and approved by the California Governor on June 28, 2018;
c) “EU Data Protection Legislation” means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal information and on the free movement of such data, including any applicable national implementations of it; and (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal information and on the free movement of such data, and repealing Directive 95/46/EC (as amended, replaced or superseded) ("GDPR");
d) “Controller” shall mean the entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Information;
e) “Processor” shall mean an entity which processes Personal Information on behalf of the Controller; and
f) “Personal Information” means any information relating to an identified or identifiable natural person.
2.1 Applicability. This DPA will apply only to the extent that Pixlee processes Personal Information from the EEA on behalf of “You” the Pixlee Customer.
2.2 GDPR. This DPA inclusive of Exhibits A and B will apply only on and after 25 May 2018. Where the GDPR materially or adversely impacts Pixlee's continued provision of the Subscriptions (including its costs in providing the Subscriptions) and / or Customer's receipt of the Subscriptions, the Parties shall discuss in good faith and acting reasonably, what changes may be necessary and operationally, technically and commercially feasible to the Agreement and/or the DPA and/or the Subscriptions (including, without limitation, the fees payable by Customer to Pixlee for the Subscriptions) in order to enable Pixlee to continue providing the Subscriptions. No such changes shall be effective unless agreed between the Parties pursuant to this Clause.
3.1 Parties' Roles. To the extent that Pixlee processes Personal Information in the course of providing the Subscriptions, it will do so only as a Processor acting on behalf of Customer (as Controller) and in accordance with the requirements of the Agreement.
3.2 Purpose Limitation. Pixlee will process the Personal Information only for the purpose of providing the Subscriptions and in accordance with Controller’s lawful instructions.
3.3 Compliance. Customer, as Controller, shall be responsible for ensuring that:
a) it has complied, and will continue to comply, with all applicable laws relating to privacy and data protection, including EU Data Protection Legislation; and
b) it has, and will continue to have, the right to transfer, or provide access to, the Personal Information to Pixlee for processing in accordance with the terms of the Agreement and this DPA
c) it provides to Pixlee an accurate and up to date Data Security Contact name, and contact information available during both business and non-business hours.
4.1 Security. Pixlee will have in place and maintain throughout the term of this Agreement appropriate technical and organizational measures to protect the Personal Information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing (a “Security Incident”).
4.2 Security Incident. In the event of a Security Incident, Pixlee will notify Customer via Customer’s designated Data Security Contact and provide reasonable assistance in order to remedy or mitigate the effects of the Security Incident.
5.1 Subprocessing. Customer authorizes Pixlee to subcontract processing of Personal Information under the Agreement to a third party provided that such third party agrees to abide by Section 3.2 and Section 4.1.
6.1 Adequacy. Pixlee will provide an adequate level of protection for Personal Information that it processes on behalf of Customer in accordance with the requirements of EU Data Protection Legislation.
Notwithstanding anything in this DPA, Pixlee will have the right to collect, extract, compile, synthesize and analyze non‐personally identifiable data or information resulting from Customer's use or operation of the Subscription (“Subscription Data”) including, by way of example and without limitation, information relating to volumes, frequencies, recipients, bounce rates, or any other information regarding the communications Customer, its end users or recipients generate and send using the Subscription. To the extent any Subscription Data is collected or generated by Pixlee, such data will be solely owned by Pixlee and may be used by Pixlee for any lawful business purpose without a duty of accounting to Customer or its recipients, provided that such data is used only in an aggregated form, without directly identifying any person. For the avoidance of doubt, this DPA will not apply to Subscription Data.
8.1 Except as amended by this DPA, the Agreement will remain in full force and effect.
8.2 If there is a conflict between the Agreement and this DPA, the terms of this DPA will control.
8.3 Any claims brought under this DPA shall be subject to the terms and conditions, including but not limited to, the exclusions and limitations set forth in the TOS.
The following terms in this Exhibit A shall apply to the Agreement and the DPA only on and after 25 May 2018.
1. Scope. The subject‐matter of the data processing is the provision of the Subscriptions and the processing will be carried out for the duration of the Subscription Term. Exhibit B sets out the nature and purpose of the processing, the types of Personal Information Pixlee processes and the categories of data subjects whose Personal Information is processed.
2. Instructions. The Terms of Service and this DPA set out Customer's complete documented instructions to Pixlee in relation to the processing of the Personal Information and any processing required outside of the scope of these instructions will require prior written agreement between the parties.
3. Purpose Limitation. If Pixlee is required to process the Personal Information for any other purpose by European Union or national law to which Pixlee is subject, Pixlee shall inform Customer of this requirement before the processing, except where otherwise required by such law.
4. Data Protection Impact Assessments. Pixlee shall, to the extent required by EU Data Protection Legislation, provide Customer with reasonable assistance at Customer's cost and expense with data protection impact assessments or prior consultations with data protection authorities that Customer is required to carry out under EU Data Protection Legislation or the CCPA.
5. Sub‐processing.
5.1 Customer agrees that Pixlee may engage Pixlee affiliates and third party sub‐processors (collectively, "Sub‐processors") to process the Personal Information on Pixlee's behalf.
5.2 Pixlee shall impose on such Sub‐processors data protection obligations that protect the Personal Information to the same or substantially similar standard provided for by this DPA and shall remain liable for any breach of the DPA caused by a Sub‐processor.
6. Security
6.1 Pixlee will ensure that any person that it authorizes to process the Personal Information (including its staff, agents and subcontractors) shall be subject to a duty of confidentiality) whether a contractual or a statutory duty).
6.2 Upon becoming aware of a Security Incident, Pixlee shall notify Customer via Customer’s provided Data Security Contact, without undue delay and shall provide such timely information as Customer may reasonably require, including to enable Customer to fulfil any data breach reporting obligations under EU Data Protection Legislation or the CCPA. Pixlee shall promptly take appropriate steps to remedy or mitigate any damage arising from such Security Incident.
7. Audit. While it is the parties' intention ordinarily to rely on the provision of the documentation to verify Pixlee's compliance with this DPA, Pixlee shall permit the Customer (or its appointed third party auditors) to carry out an audit of Pixlee processing of Personal Information under the Agreement following a Security Incident suffered by Pixlee, or upon the instruction of a data protection authority. Customer must give Pixlee reasonable prior notice of such intention to audit, conduct its audit during normal business hours, and take all reasonable measures to prevent unnecessary disruption to Pixlee's operations. Any such audit shall be subject to Pixlee's security and confidentiality terms and guidelines.
8. Data subjects' rights. Pixlee shall, taking into account the nature of the processing, provide reasonable assistance to Customer insofar as this is possible and at Customer's cost and expense, to enable Customer to respond to requests from a data subject seeking to exercise their rights under EU Data Protection Legislation. In the event that such request is made directly to Pixlee, Pixlee shall promptly inform Customer of the same.
9. Deletion / return of Personal Information. Upon termination or expiry of the Subscription Term, Pixlee shall, at Customer's election, delete all relevant Personal Information (including copies) in Pixlee's possession, save to the extent that Pixlee is required by any applicable law to retain some or all of the Personal Information.
10. If there is a conflict between the DPA and this Exhibit, the terms of this Exhibit will control.
Data subjects
The Personal Information transferred concern the following categories of data subjects (please specify):
End users – individuals who interact with the Customer by way of the Pixlee communication platform.
Categories of data
The Personal Information transferred concern the following categories of data (please specify): IP Address, Device info (Operating system, Browser), Cookie dropped anonymous ID, Email, Full Name, location data, Facebook Username, Instagram Username, Facebook Avatar, Instagram Bio, Unique social Id for Instagram/Facebook/ Twitter, and interactions with end users via the communication platform
Special categories of data (if appropriate)
The Personal Information transferred concern the following special categories of data (please specify): None
Processing operations
The Personal Information transferred will be subject to the following basic processing activities (please specify):
• Personal Information will be transferred from the Customer to Pixlee for Pixlee to provide a communication platform to facilitate interaction and engagement between the Customer and the end user.
• This Subscription will consist of providing a communication platform for the Customer to use in order to on‐board and retain end users as well as analyze their use of the Customer's product and / or Subscription.
• Full details about Pixlee's products and services can be found at https://www.pixlee.com.
1. Pixlee is a “Service Provider” as defined in CCPA Section 1798.140(v).
2. Customer discloses Personal Information to Pixlee solely for: (i) a valid business purpose; and (ii) Pixlee to perform the Services.
3. Pixlee is prohibited from: (i) selling Personal Information; (ii) retaining, using, or disclosing Personal Information for a commercial purpose other than providing the Services; and (iii) retaining, using, or disclosing the Personal Information outside of the Agreement between Pixlee and Customer.
4. Pixlee understands the prohibitions outlined in Section 4.