Terms of Use

Terms of Use for PixelFunder

The service “PixelFunder” is offered over the internet by the company PixelFunder, LLC.

PixelFunder is a crowdfunding platform for both indie developers and their Gamers. The use of the PixelFunder platform is subject to the below terms of use. Using PixelFunder constitutes acceptance of these terms of use.

Article 1. DEFINITIONS
The capitalized terms in these Terms of Use are understood to have the following meanings.

1.1 Account: the User’s personal area of the Service. The Account (a) can be used by the User to manage and configure (i) its settings for use of the Service, (ii) its personal data, and (b) is necessary to have access to and make use of the Service

1.2 Agreement: all agreements contracted between PixelFunder and User, of which these Terms of Use form an integral part.

1.3 PixelFunder, the limited liability company having its registered place of business at 342 Southwick Rd. #27, Westfield, MA, USA., registered with the state of Massachusetts under number 81-2130066.

1.4 Party: all parties to the Agreement.

1.5 Game: any Game made available on the Website for funding by Users of the Service.

1.6 User: every user of the Service, either a consumer or a professional party being a natural person or a legal entity that concluded the Agreement with PixelFunder.

1.7 Service: the PixelFunder platform, an application offered through the Internet as a Software as a Service.

1.8 Terms of Use: the provisions of the present document.

1.9 Website: the website www.pixelfunder.com and any subdomains and extensions.

Article 2. APPLICABILITY AND ORDER OF PRECEDENCE
2.1 These Terms of Use, including any other terms and conditions made available on the Website or through other channels, apply to every offer of PixelFunder and to every use made of the Service. The Terms of Use form an integral part of every Agreement.

2.2 Terms and conditions applied by the User that deviate from or that are not included in these Terms of Use are only binding on PixelFunder if and in so far as they have been explicitly accepted in writing by PixelFunder.

2.3 In the event of any conflict between different documents, the following order of precedence applies:

i. the Agreement;

ii. any appendices;

iii. these Terms of Use;

iv. any additional conditions.

Article 3. INCEPTION OF THE AGREEMENT

3.1 An Agreement can be entered into with PixelFunder through an online channel, including the Website, by or on behalf of the User using a method authorized by PixelFunder.

3.2 On entering into the Agreement, Parties do not form a partnership, a general partnership, a public company, a joint venture or comparable cooperation. None of the Parties is authorized to enter into commitments on behalf of the other Party.

3.3 User represents that the e-mail address provided to PixelFunder (for example on the moment of concluding the Agreement) is correct and is authorized and supervised by User. Furthermore, User agrees to receive all relevant information relating to the Agreement on the provided e-mail address. The e-mail sent by PixelFunder shall be deemed to have been received at the time it reaches the server of User. User is solely responsible for the configuration of his (mail)server, including but not limited to spam or authorizations of the e-mail accounts.

3.4 PixelFunder is at all times entitled to refuse User.

Article 4. ACCOUNT

4.1 In order to be able to make use of and have access to the Service, the User has to create an Account in the way as described on the Website. Users should be at least 18 years of age or older or have permission from its parents or legal guardians. By making use of the Service, the User represents and warrants he is at least 18 years of age or has obtained permission from its parents or legal guardians, and is legally authorized to make use of the Service.

4.2 Upon creating the Account, the User will be obliged to provide its own credentials in the way described on the Website. The User is responsible for keeping its credentials confidential. The User is responsible and liable for all use made of and access to the Service by means of its Account. As soon as the User knows or has reason to assume that its Account and/or credentials has/have come into the hands of unauthorized third party/parties, the User must inform PixelFunder of this immediately, notwithstanding its own obligations to take immediate effective measures himself, such as changing the login details to its Account.

4.3 In the event the User qualifies as a legal entity, the User warrants that it is legally authorized to represent that legal entity.

4.4 PixelFunder accepts no liability for any damages resulting from unauthorized access to or use of the Service by the User or third parties.

Article 5. SERVICE

5.1 PixelFunder hereby grants the User a non-exclusive, non-transferable, limited right to access and use the Service, under the conditions of these Terms of Use and for the duration of the Agreement.

5.2 The use of the Service is at the User’s own expense and risk. The User is responsible for meeting the technical and functional requirements and using the electronic communication facilities that are necessary to be able to access and use the Service. The risk of loss, theft or damage to any of its data will at all times be borne by the User.

5.3 Any use of the Service, including the transmission, distribution and making available thereof, and any other (legal) act relating to the Service, by or on behalf of the User is for the User’s own risk and responsibility. PixelFunder is not liable and/or responsible for the use of the Service by Users.

5.4 Notwithstanding any other provisions of these Terms of Use, and any of the User’s legal obligations, the use of the Service may not, at PixelFunder’s sole discretion:

a. include software such as viruses or Trojans that can damage or erase, make unavailable or make inaccessible any computers or data of PixelFunder, (other) Users or third parties;

b. bypass technical security measures of the computer systems of PixelFunder, (other) Users or third parties;

c. involve unreasonable or disproportionate use of the infrastructure of PixelFunder’s or third parties’ computer systems, including but not limited to any use in violation of PixelFunder’s fair use policy as described on the Website and/or in the Service;

d. impede the functionality or functionalities of the Service;

e. involve manual or automated software, devices, or other processes to “crawl”, “spider” or scrape any content of the Service;

f. constitute unauthorized or unsolicited advertising, junk, spam, bulk e-mail, scam and/or phishing;

g. infringe any of PixelFunder’s or third party’s intellectual property rights, privacy rights or any other rights;

h. involve (virtual) child pornography, bestiality or other unlawful erotic content or acts relating thereto;

i. promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury;

j. involve any illegal activities or activities that are contrary to morality or public order;

k. involve false or misleading information;

l. involve otherwise inappropriate use;

m. breach these Terms of Use or the Agreement; and/or

n. be unlawful in any way whatsoever.

5.5 The User warrants to refrain from the above acts.

5.6 The Service may contain information that is derived from and/or may refer to third parties’ websites, products or services (for instance through hyperlinks, banners or buttons). PixelFunder is not responsible, nor liable for the content of such information.

5.7 PixelFunder is not responsible or liable with regard to any third party services used by User or provided through the Service. Use of these third party services shall be at User’s own responsibility and liability.

5.8 The User acknowledges and agrees that PixelFunder does not pre-screen the contents or use of the Service and that PixelFunder has no influence over the contents or use made of the Service by User. Everything that has been uploaded through use of the Service falls under the sole responsibility of User.

5.9 PixelFunder will have the right (but not the obligation), at its sole discretion, to review, edit, limit, refuse or remove Games (or any parts thereof), or refuse a User access to and/or use of the Service.

5.10 PixelFunder may disclose the User’s personal data and/or contents, or other data relating to the use of the Service, to third parties where it believes, in good faith, that it is necessary to comply with a court order, ongoing judicial proceeding, criminal or civil subpoena, or other legal process or request by law enforcement authorities in the Netherlands, or to exercise its legal rights of defense against legal claims.

Article 6. CREATING GAMES
6.1 The Service can be used to have the User’s Games funded by other Users (the so-called ‘Backers’). The Games available for funding are listed and publicly available on the Website. By funding a Game, the User is entering into an agreement with the User who created the Game (the so-called ‘Creator’). PixelFunder is explicitly not a party to the agreements between Users of the Service.

6.2 Creators should be at least 18 years of age or older. The Creator must be permanent resident of the country that it is creating a Game in and the Game must be created on behalf of a registered legal entity. Furthermore, the Creator must have an address, bank account, and government-issued ID based in the country that it is creating the Game in. The Creator shall issue all relevant documents to PixelFunder, including but not limited to copies of identification and certificates of residency.

6.3 After a Game is successfully funded, the Creator of the Game is responsible for the successful execution of the Game. The Creator shall exercise due care and expertise when executing the Game and represents and warrants that the Game will be in conformity with applicable law and regulation. Furthermore, the Creator shall keep its Backers up to date as to all necessary changes relating to the Game, including any delays and other problems.

6.4 With reasonable intervals, the Creator shall keep its Backers up to date as to how funds have been allocated, the works that have been performed, the estimated time needed for successful completion of the Game and all other relevant details. In this respect, the e-mail addresses of the Backers will be provided to the Creator. In all its communication the Creator sends to its Backers, the Creator is obliged to include a hyperlink enabling the Backers to unsubscribe from such communication.

6.5 The Creator is solely responsible for executing the Game and for fulfilling its promises made when executing the Game. PixelFunder is under no circumstance responsible for actions and/or omissions on the side of Creators. Backers should at all times address any questions and remarks in relation to the Game directly to the Creators. Furthermore, PixelFunder is not responsible for any disputes that may arise between Users.

6.6 In the event a User holds PixelFunder liable (regardless of the grounds) for any acts or omissions of Creator, the Creator shall hold PixelFunder harmless and shall fully indemnify PixelFunder against any damages it may suffer as a result of this.

Article 7. FUNDING
7.1 Once a Game has been created and is screened and approved by PixelFunder, it will become visible for funding on the Website. The Creator of the Game will set a fundraising limit and a specific time frame during which the fundraising limit should be reached.

7.2 Only when the fundraising limit has been reached, the amounts of the Backers will be collected and transferred to the Creator. PixelFunder is, however, entitled to make a reservation on User’s payment card. Such reservation will be for authorization and validation purposes only.

7.3 Before the amounts will be transferred to the Creator, PixelFunder will subtract the fee as indicated on the Website over the total fundraising amount. Consequently, no rights or obligations can be derived from such use.

7.4 PixelFunder does not offer refunds for pledges.

7.5 The Creator should acknowledge that some amounts of the Backers may not be collected and that, therefore, the Creator cannot at all times be guaranteed to receive the fundraising amount minus the applicable fees.

7.6 In return for funding the Game, Backers may receive rewards from the Creator. Rewards may include a copy of the Game, the chance to play the Game before anyone else can or any other reward as so specified by the Creator of the Games. In order to receive any reward, it is important the Backer provides the requested information and have its (company) details updated at all times.

Article 8. PRICES AND PAYMENT
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8.1 Creating an Account on PixelFunder is free of charge. If a Game has been created and successfully funded, PixelFunder will subtract a fee in the form of a percentage over the total funding amount. PixelFunder will charge a fee of 5%, which is subject to change as so specified on the Website. In addition to the fees subtracted by PixelFunder, the payment provider(s) may also apply fees. More information about fees are located in our FAQ.

8.2 The fees as applied by PixelFunder are specified on the Website and/or in the Service and may change from time to time. Prices are shown in the currency mentioned on the Website and, unless stated otherwise, are shown exclusive of VAT, import duties and other government imposed taxes, duties and levies.

8.3 Payment can be done by credit card, and/or as further described on the Website and/or in the Service. Payment is possible by means of the online payment provider PayPal. By making use of PayPal, the terms and conditions of PayPal will apply, which are available here: https://www.paypal.com/webapps/mpp/ua/useragreement-full and may change from time to time.
Or by Stripe. By making use of Stripe, the terms and conditions of Stripe will apply, which are available here: https://stripe.com/legal/ and my change from time to time.

8.4 User will pay the amounts in accordance with the payment conditions stated by PixelFunder and/or the conditions of any third parties. User is solely responsible for the payment of any additional fees, taxes and/or levies associated with User’s use of the Service.

Article 9. INTELLECTUAL PROPERTY
9.1 The Service, the accompanying software as well as all information and images on the Website is the intellectual property of PixelFunder and/or its licensors. None of these items may be copied or used without prior written permission of PixelFunder, except and to the extent permitted by mandatory law.

9.2 Information stored by User or processed while using the Service is and remains the property of User (or the property of User’s suppliers or licensors). PixelFunder receives an unlimited license for use of this information for providing the Services.

9.3 User represents and warrants that any information and (Games) contents stored by User or processed while using the Service do not violate or infringe any rights (including intellectual property rights) of any third party and are not libelous, defamatory or otherwise illegal. User shall defend and indemnify PixelFunder from and against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the foregoing representations and warranties.

9.4 Users are authorized to reproduce the PixelFunder logo on third party websites, but only to promote the Games and/or PixelFunder Website. PixelFunder is entitled to make such use subject to additional conditions and Users shall comply with requests and instructions of PixelFunder in this connection.

9.5 If User sends information to PixelFunder, for example a bug report or suggestion for improvement, User grants PixelFunder a perpetual and unlimited license to use this information for the Service. This does not apply to information expressly marked as confidential.

Article 10. LIABILITY

10.1 The liability of PixelFunder for direct damage incurred by the User due to a culpable failure on the part of PixelFunder to comply with its obligation under the Agreement, or due to an unlawful act committed by PixelFunder, its employees or third parties engaged by it, is limited per damage-causing incident, whereby a series of connected incidents count as a single incident, to an amount equal paid by User under the Agreement in the three (3) Months prior to the damage-causing incident. However, in no case will the total compensation for direct damage exceed EUR 100.

10.2 The liability of PixelFunder for indirect damage, including consequential loss, loss of earnings, missed economies, loss of (business) data and damage due to business stagnation is excluded.

10.3 Except for the cases referred to in article 10.1, PixelFunder bears no liability whatsoever for damages, regardless of the grounds on which the claim for damages is based. The liability limitations referred to in article 10.1 will however lapse if and insofar as the damage is the result of intent or gross negligence on the part of PixelFunder.

10.4 The obligation for PixelFunder to pay compensation will only arise if the User sends written notice to PixelFunder of this damage within fourteen (14) days of the damage occurring.

10.5 The User indemnifies PixelFunder against all third party claims for compensation for damage, costs or interest relating to the Agreement and/or the Service.

10.6 In case of force majeure as specified in article 11 of these Terms of Use, PixelFunder is never required to compensate damages suffered by User.

10.7 The provisions of this article, as well as any other liability limitations referred to in these Terms of Use, shall not apply if the User is a natural person acting outside the scope of an economic activity.

Article 11. FORCE MAJEURE

11.1 PixelFunder shall have no liability to User under the Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, cybercrime, (distributed) denial of service attacks, failure of a utility service or transport or telecommunications network, war, riot, fire, flood, storm or unforeseeable default of suppliers, provided that the User is notified of such an event and its expected duration.

Article 12. AVAILABILITY AND MAINTENANCE
12.1 PixelFunder will make efforts to realize the uninterrupted availability of its systems, network and Service, but offers no guarantees in this regard unless otherwise agreed. PixelFunder also makes no promises or guarantees as to security, availability and integrity of data transfers while making use of the Service, unless it explicitly states otherwise.

12.2 If PixelFunder considers that there is a danger to the functioning of its systems, network or Services, PixelFunder will have the right to implement all measures it considers reasonably necessary to avert or prevent this danger.

12.3 PixelFunder has the right to change the (functionality of the) Website and the Services. Feedback and suggestions from the User are welcome and the parties may conduct talks, but PixelFunder itself makes the final decision on which changes it will or will not implement.

12.4 PixelFunder has the right to temporarily take its systems, Services, networks or parts thereof out of operation for the purpose of maintenance, adjustment or improvement. PixelFunder will attempt to let such taking out of service take place as much as possible outside working hours and it will endeavor to notify the User in due time of the scheduled taking out of service. However, PixelFunder is in no case liable to compensate any damage arising in connection with such a closure.

Article 13. TERM AND TERMINATION
13.1 This Agreement enters into force as soon as you first use the Service and then remains in force until terminated.

13.2 User may terminate the Agreement at any time by sending a written notification to PixelFunder. Terminating the Agreement shall not affect any agreements currently in place with other Users.

13.3 All obligations of the Parties that accrued prior to termination of this Agreement shall survive termination of this Agreement. In particular, the following provisions shall survive termination or expiration of this Agreement: Articles 8,9,10, 11, 14, 15, 16 and 17.

Article 14. CONFIDENTIALITY
14.1 Parties shall refrain from disclosing or using for any other purpose than within the scope of this Agreement, any trade secrets and other information of the other Party that has been designated as confidential or the confidential nature of which is known or can reasonably be deemed to be known by the other Party.

14.2 Parties accept the duty to observe strict secrecy towards third parties with respect to all that has been arranged for in the Agreement. In addition, the Parties accept the duty to observe strict secrecy with respect to all information regarding the activities and organization of the other Party, except in as far as such information was already part of the public domain without any involvement of the other Party.

14.3 If it may prove to be necessary for the execution of this Agreement that a Party discloses any commercial or organizational information of the other Party, this shall only be done after consultation with, and with the permission of, the other Party.

14.4 If either Party (partly) fails to comply with the provisions of this article, the defaulting Party shall forfeit to the non-defaulting Party, without notice of default or judicial intervention being required, an immediately due and payable penalty of USD 10,000,-, notwithstanding the right of the non-defaulting Party to demand (full) compensation.

14.5 After the termination of the Agreement, for whatsoever reason, the Parties will delete all confidential information or return this to the owner.

Article 15. ANTI-BRIBERY
15.1 Each Party hereby represents and warrants that, at the date of the entering into force of the Agreement, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Agreement and that it has taken reasonable measures to prevent third parties, subject to its control, from doing so.

Article 16. AMENDMENTS AND SUPPLEMENTS TO THE AGREEMENT
16.1 PixelFunder reserves the right to amend or supplement these Terms of Use.

16.2 Changes and additions shall be implemented with due observance of a term of thirty (30) calendar days after the notification of the change/amendment to the User. Changes and amendments of minor importance can be implemented at all times.

16.3 If the User does not wish to accept a change/amendment, until the date on which the new Terms of Use enter into effect, it may cancel the Agreement towards that date. Use of the Service after the date of effect shall constitute acceptance of the changed or added-to Terms of Use.

Article 17. MISCELLANEOUS
17.1 The Agreement is governed by the laws of the United States of America.

17.2 Unless the rules of mandatory law dictate otherwise, all disputes that may arise pursuant to or in connection with the Agreement will be submitted to the court in the district where PixelFunder has its registered place of business.

17.3 ‘Written/in writing’ in these Terms of Use also refers to e-mail communication, provided the identity of the sender and the integrity of the contents is adequately established.

17.4 If any provision in the Agreement proves to be null and void, this shall not affect the applicability of the Agreement as a whole. In such cases, the Parties will adopt one or more new provisions that implement the intention of the original Agreement and the Terms of Use as much as possible.

17.5 The reports and the version of communications or information saved by PixelFunder is deemed to be correct unless the User provides evidence to the contrary.

17.6 The Parties shall notify each other without delay, in writing, of any changes in their name, postal address, e-mail address, telephone number and, on request, bank account number.

17.7 PixelFunder is entitled to transfer its rights and obligations under the Agreement to a third party who acquires the Service or the relevant business operations from it. The User is not entitled to transfer, assign and/or sub-license its rights and obligations under the Agreement to a third party without the prior written consent of PixelFunder.