This Terms of Service Agreement (“Terms”) is entered into between Buying Signals LLC (“Buying Signals”) and you (“Customer”) and is made effective on the date of your acceptance of the End User License Agreement (“EULA”) that incorporates these Terms. The EULA and these Terms are collectively referred to herein as the “Agreement.” Customer and Buying Signals are sometimes collectively referred to herein as the “Parties” and individually as a “Party.”

1.  Definitions

   • “Applicable Laws” means all applicable federal, state, local, or foreign laws, statutes, rules, regulations, EULAs, ordinances, regulatory guidance, code, treaty, common law, judgement, decree, and/or industry self-regulation.
   • “Applicable Data Protection Laws” means all Applicable Laws relating to privacy, Personal Information, consumer protection, data protection, and/or security.
   • “Customer Data” means any information or data, including Personal Information, that Customer provides or makes available to Buying Signals or that Buying Signals collects on Customer’s behalf under the Agreement. This information may include browser information, device information, server access data, information about the use of Insight PiXL; the equipment, network(s), or web sites on which Insight PiXL is installed or through which it otherwise is accessed and used, the provision of services associated with or related to Insight PiXL, and the provision of maintenance and support services, if any are provided.
   • “Data Services” means the services that Buying Signals or its sub-processors perform as a service provider to Customer to process certain Customer Data on Customer’s behalf.
   • “Personal Information” means any information that identifies, relates to, describes, could be associated with or linked, directly or indirectly, to a specific individual, or as that term or any similar term is defined under Applicable Data Protection Laws.

2.  Prices and Fees.

   • You agree to pay any and all prices and fees due for Insight PiXL as set forth in your EULA (the “EULA”) submitted to Buying Signals. If you provide credit card or other payment information to Buying Signals as a form of payment for Insight PiXL, you agree that Buying Signals may charge the card or other form of payment for the amounts due as provided in your EULA. Buying Signals expressly reserves the right to change or modify its prices and fees quoted at the time of an EULA; however, any changes or modifications in prices and fees shall be effective at the end of the applicable Term or Renewal Term as further described below.
   • All fees and charges payable to Buying Signals shall not be subject to set-offs. Buying Signals may suspend access to Insight PiXL if payment is not made when due.
   • The Agreement sets forth the entire agreement of the Parties relating to Insight PiXL. It supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter and may only be amended with mutual written agreement of the Parties. In the event of a conflict between the EULA and these Terms, the terms in the EULA shall control.

3.  Term.

   Unless stated otherwise in your EULA, the Term of the Agreement shall be for one (1) year, commencing as of the date of the EULA (the “Effective Date”), and shall automatically renew for another one (1) year period (a “Renewal Term”), unless earlier terminated as provided herein.

4.  Termination.

   Either Party may terminate the Agreement at any time with or without cause effective immediately upon written notice to the other Party, subject to the termination provisions in any applicable EULA. Buying Signals may also suspend Customer’s access to Insight PiXL if it has not may payment by the Due Date specified in the EULA.

5.  Intellectual Property.

   • Insight PiXL. The Insight PiXL licensed to Customer pursuant to the Agreement and/or an EULA shall remain the sole and exclusive property of Buying Signals or its sub-processors, as applicable. Customer shall not: (i) create derivate works based on the Insight PiXL or copy any features, functions or graphics of the Insight PiXL, (ii) copy any part or content of the Insight PiXL (iii) reverse-engineer the Insight PiXL, (iv) use the Insight PiXL for any illegal purpose or in a manner that is inconsistent with the Agreement, (v) remove or alter any proprietary notices or labels on or provided with the Insight PiXL, or (vi) access the Insight PiXL to (a) build a competitive product or software, or (b) copy any features, functions or graphics of the Insight PiXL.
   • Usage. You agree to modify your website header to include code snippets needed to utilize Insight PiXL as provided by Buying Signals.

6.  Processing of Customer Data.

   • Customer is the controller with respect to Customer Data and will comply with all Applicable Data Protection Laws relating to controllers, including providing, posting, and managing all required notices and/or opt-outs, obtaining all necessary consents or opt-ins, and maintaining a privacy policy that is consistent with the provision of Services to Customer under the Agreement.
   • Buying Signals is a processor with respect to Customer Data and will comply with all Applicable Data Protection Laws relating to processors and/or service providers. Buying Signals will collect and process Customer Data on Customer’s behalf through the provision of Data Services. Buying Signals may engage other processors (“Subprocessors”) to process Customer Data on behalf of Customer provided that said sub-processing is done in compliance with Buying Signal’s obligations under this Agreement and any Applicable   Data Protection Laws.
   • Customer shall incorporate the following statement and direct hyperlink into its privacy policy on each web site upon which Insight PiXL is in use and/or in which it is configured to collect Customer Data:

“This site is being monitored by one or more third-party monitoring software(s), and may capture information about your visit that will help us improve the quality of our service. You may opt-out from the data that SmartPiXL is collecting on your visit through a universal consumer options page located at https://smart-pixl.com/Unsub/unsub.html.”

• Customer represents and warrants that it has all required rights and licenses to provide or make available Customer Data to Buying Signals and/or its Subprocessors or enable Buying Signals and/or its Subprocessors to collect or process Customer Data on Customer’s behalf under the Agreement. Customer will reasonably cooperate in posting or providing any notices Buying Signals requests with respect to the collection of Customer Data.
• You agree that Buying Signals may use the Customer Data to provide Insight PixL during the Term, which also includes (1) maintaining and improving the performance, operation, and functionality of Insight PixL or developing updates thereto and (2) verifying Your compliance with the terms of the Agreement and enforcing the rights of Buying Signals, including all intellectual property rights in and to Insight PixL.
• Buying Signals: (i) will only process Personal Information on documented instructions from Customer for the business purpose of providing and performing the Data Services on Customer’s behalf during the Term; (ii) is prohibited from retaining, using, or disclosing Customer Data collected pursuant to the Agreement for any purpose other than providing the Data Services or as otherwise permitted by Applicable Data Protection Laws or the Agreement; (iii) will provide the same level of protection to Customer Data as is required of Customer under Applicable Data Protection Laws, including implementing reasonable security procedures and practices appropriate to the nature of the Customer Data to reasonably protect the Customer Data from unauthorized or illegal access, destruction, use, modification, or disclosure; (iv) will cooperate with Customer in responding to and complying with its consumers’ requests relating to Personal Information made pursuant to Applicable Data Protection Laws and will notify Customer of any requests Buying Signals receives from Customer’s consumers relating to their Personal Information; (v) will ensure that each person processing Customer Data is subject to a duty of confidentiality with respect to the data, (vi) at Customer’s direction, delete or return all Personal Information to Customer as requested after the Term, unless retention of the Personal Information is required by law; (vii) grants Customer the right to take reasonable and appropriate steps to ensure that Data Services is complying with its obligations with respect to Personal Information under the Agreement and in a manner consistent with Applicable Data Protection Laws; (viii) will allow, and cooperate with, reasonable assessments by Customer or its designated assessor once per calendar year at Customer’s costs to ensure compliance with Applicable Data Protection Laws; (ix) will engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the requirements of Buying Signals with respect to the subcontractor’s processing of any Personal Information; and (x) will notify Customer if Data Services makes a determination that it can no longer meet its obligations under Applicable Data Protection Laws.

7.  Warranty.

   • During the Term of the Agreement, Buying Signals hereby warrants to Customer that the Insight PiXL software will substantially contain the functionality described in the documentation, and when properly installed, embedded, uploaded, utilized, and/or operated in accordance with the documentation it will substantially perform in accordance therewith and not knowingly infringe upon the intellectual property and/or proprietary rights of any third Party. Customer warrants that: (1) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (2) the Agreement, when executed and delivered, will constitute a valid and binding obligation of Customer, enforceable in accordance with its terms; and (3) it shall not otherwise violate any laws, and refrain from taking any action which are intended to cause Buying Signals or its Subprocessors to be in violation of any laws. Each Party hereto warrants that it is authorized to enter into the Agreement, that the person signing on its behalf is duly authorized to execute the Agreement, and that no other signatures are necessary.
   • Disclaimer. THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF, AND THE AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTY THAT INSIGHT PIXL IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (2) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (3) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. BUYING SIGNALS SHALL NOT BE LIABLE FOR ANY LACK OF SERVICE OR TIME DELAYS ATTRIBUTABLE TO THE INTERNET, TELECOMMUNICATIONS EQUIPMENT OR SERVICES, CUSTOMER’S COMPUTERS AND/OR MOBILE OR OTHER DEVICES OR NETWORKS, CUSTOMER’S ISPs OR ANY OTHER REASONS OUTSIDE THE CONTROL OF BUYING SIGNALS. THE FOREGOING WARRANTIES FURTHER DO NOT APPLY, AND BUYING SIGNALS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO ANY INTERNET SERVICE PROVIDERS, WEB SITE DESIGNS, THIRD-PARTY SOFTWARE, OR ANY REQUIREMENTS OR FUNCTIONALITY ASSOCIATED WITH OR RELATED TO CUSTOMER’S WEB SITE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, INSIGHT PIXL IS PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BUYING SIGNALS, ON THEIR OWN BEHALF AND ON BEHALF OF THEIR AFFILIATES AND THEIR RESPECTIVE COMPANIES AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO INSIGHT PIXL.

8.  LIMITATIONS OF LIABILITY

   BUYING SIGNALS SHALL NOT BE LIABLE UNDER THE AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, NOMINAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, GOVERNMENT ACTIONS OR PENALTIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. BUYING SIGNAL’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO INSIGHT PIXL AND/OR THE AGREEMENT, INCLUDING ATTORNEYS’ FEES, SHALL NOT EXCEED $1,000. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.

9.  Remedies

   Subject to the indemnification provision below, Customer’s sole and exclusive remedy for any damage or loss in any way connected with the Agreement or Insight PiXL furnished hereunder, whether by breach of warranty, negligence, or any breach of any other duty, shall be, at Buying Signal’s option, replacement of Insight PiXL or return or credit of an appropriate portion of any payment made by Customer.
   • Infringement Indemnification by Buying Signals. Subject to the limitation of liability provisions in the Agreement, Buying Signals indemnifies, defends, and holds Customer harmless from and against any claims, actions, or demands alleging that Insight PiXL infringes any patent, copyright, or other intellectual property right of a third party, if the such claim, action, or demand was brought in good If use of Insight PiXL is permanently enjoined for any reason, Buying Signals, at Buying Signals’s option, and in its sole discretion, may (1) modify Insight PiXL; (2) procure the right for Customer to continue to use Insight PiXL; or (3) terminate the Agreement and refund to Customer a pro-rata portion of any pre-paid fees paid by Customer for Insight PiXL. Buying Signals shall have no obligation under this section for or with respect to claims, actions, or demands alleging infringement that arise as a result of (1) the combination of noninfringing items supplied by Buying Signals with any items not supplied by Buying Signals; (2) modification of Insight PiXL by Customer or by Buying Signals in compliance with Customer’s designs, specifications, or instructions; (3) the direct or contributory infringement of any process patent by Customer through the use of Insight PiXL; and (4) continued allegedly infringing activity by Customer after Customer has been notified of the possible infringement.
   • Indemnification by Customer: Customer is responsible and indemnifies and holds Buying Signals harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Customer’s use or reproduction of Insight PiXL pursuant to the Agreement. Therefore, Customer agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and Buying Signals from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to Customer, an authorized user, or a client or customer of Customer’s use or misuse of Insight PiXL and/or such person or entity’s breach of the Agreement, including but not limited to the content Customer submits or makes available through Insight PiXL. Consistent with this section, Buying Signals shall be entitled to receive advance payment of indemnification amounts to cover legal expenses to be paid by the Customer.
   • Condition to Indemnification: Should any claim subject to indemnity be made against Buying Signals or Customer, the Party against whom the claim is made agrees to provide the other Party with prompt written notice of the claim. Buying Signals will control the defense and settlement of any claim under 10(a) and Customer will control the defense and settlement of any claim under section 10(b). The indemnified Party agrees to co-operate with the indemnifying Party and provide reasonable assistance in the defense and settlement of such The indemnifying Party is not responsible for any costs incurred or compromise made by the indemnified Party unless the indemnifying Party has given prior written consent to the cost or compromise.

10. Cooperation of Customer

    Customer agrees to comply with all reasonable requests of Buying Signals and shall provide Buying Signals’ personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Agreement.

11.  THIRD-PARTY LINKS AND SERVICES:

    Buying Signals is not responsible for the availability of any external sites or resources provided by third-party websites or resources which access or links to are Your website(s) and is not responsible or liable for (1) any content, advertising, products, or other materials on or available from such sites or resources, (2) any errors or omissions in these websites or resources, or (3) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Buying Signals shall not be responsible or liable, directly or indirectly, and that Buying Signals shall be indemnified, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources.

12.  US GOVERNMENT RIGHTS:

    Insight PiXL includes commercial computer software, as such term is defined in 48 C.F.R. §2.101, as amended. Accordingly, if Customer is the US Government or any contractor therefor, Insight PiXL shall receive only those rights with respect to the Insight PiXL and documentation as are granted to all other companies under license, in accordance with: (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, as all other US Government Licensees and their contractors. amended, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government Licensees and their contractors.

13.  Relationship of the Parties

    The relationship of the Parties hereto is that of independent contractors. Nothing in the Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.

14. Force Majeure

    Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of the Agreement, for so long as such force majeure event is in effect. The party whose performance is impacted by such occurrence (the “Impacted Party”) shall give notice within five (5) days of the occurrence to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such occurrence are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

15.  Governing Law and Venue

    The Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of the Agreement will be brought solely in Dallas County, Texas. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court subject to the following arbitration provision.

16. Arbitration.

    Other than claims by Buying Signals to collect an amount due from Customer for providing the Data Services, any dispute, controversy or claim arising out of or related in any manner to the Agreement which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof in Dallas, Texas. The arbitration shall take place before a panel of one (1) arbitrator sitting in Dallas, Texas. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Texas. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the Parties. Each Party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. Any claim shall be brought individually on behalf of the person or entity seeking relief, not on behalf of a class or other persons or entities not participating in the arbitration, and shall not be consolidated with the claim of any person who is not asserting a claim arising under or relating to this contract. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to the Agreement, except that a Party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction in Dallas, Texas if in its reasonable judgment such action is necessary to avoid irreparable harm. The arbitrator will make the initial determination as to whether any claim is subject to arbitration. Notwithstanding any language to the contrary in the Agreement, the parties hereby agree that any award issued by the arbitrator (the Underlying Award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.

17. Assignment

    Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety, without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

18. Severability

    If any provision or portion of the Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.

19. Headings; Construction

    The headings/captions appearing in the Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. The Agreement is the result of negotiations between the Parties and their counsel. Accordingly, the Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.

20. Survival

    Each term and provision of the Agreement that should by its sense and context survive any termination or expiration of the Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to the Agreement.

21. Rights Cumulative

    The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.

22. Counterparts

    The Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.

23. Authorized Signatories

    It is agreed and warranted by the Parties that the individuals singing the Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.

24.  Waiver

    No waiver of any term or right in the Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Agreement thereafter.

25. Entire Agreement; Modification

    The Agreement shall be the entire Agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to the Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties. Each Party hereto has received independent legal advice regarding the Agreement and their respective rights and obligations set forth herein. The Parties acknowledge and agree that they are not relying upon any representations or statements made by the other Party or the other Party’s employees, agents, representatives or attorneys regarding the Agreement, except to the extent such representations are expressly set forth in the Agreement.