Mix'd Terms of Use

Welcome to Mix’d.  These Terms of Use (the “Terms”) govern your use of Mix’d Labs LLC. (“Mix’d”) service available through our website located at www.mixdapp.com (the “Website”), and mobile software application known as “Mix’d” (the “App”) (collectively, the functionality provided by the Website and App referred to as the “Service”).  

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY ACCESSING, BROWSING OR USING THE WEBSITE OR SERVICE, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING THE APP, YOU REPRESENT (1) THAT YOU HAVE ATTAINED THE LEGAL AGE THAT IS STATUTORILY REQUIRED UNDER THE LAWS OF THE COUNTRY IN WHICH YOU RESIDE TO FORM A BINDING CONTRACT WITH MIX’D, (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU REPRESENT; AND (3) THAT YOU CONSENT TO YOUR PERSONAL DATA BEING COLLECTED, STORED, PROCESSED OR TRANSFERRED IN THE MANNER PROVIDED FOR IN THESE TERMS AND AS PER THE PRIVACY POLICY.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE WEBSITE, APP OR SERVICES.

THE TERMS OF USE INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

1. ACCOUNTS

Registration.  In order to access certain features of the Services you may be required register for an account (“Account”).  If you access the Services through a social networking site, such as Facebook (each, an “SNS”), as part of the functionality of the Services, you may link your Account with SNS account (“SNS Account”), by allowing Mix’d to access your SNS Account, as is permitted under the applicable terms and conditions that govern your use of each SNS Account.  You represent that you are entitled to disclose your SNS Account login information to Mix’d and/or grant Mix’d access to your SNS Account (including, but not limited to, for the purposes described here) without breach by you of any of the terms and conditions that govern your use of the applicable SNS Account and without obligating Mix’d to pay any fees or making Mix’d subject to any usage limitations imposed by such third-party service providers.  By granting Mix’d access to any SNS Accounts, you understand that Mix’d may access, make available and store (if applicable) any information, data, text, software, music, sound photographs, messages, tags, and/or other materials accessible through the Services that you have provided to and stored in your SNS Account (“SNS Content”) so that it is available on and through the Services via your Account and your profile page.  Depending on the SNS Accounts you choose and subject to the privacy settings that you have in such SNS Accounts, personally identifiable information that you post to your SNS Accounts may be available on and through your Account on the Services.  PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MIX’D DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.  Mix’d makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Mix’d is not responsible for any SNS Content.

Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You are responsible for all activities that occur under your Account.   You may not share your Account or password with anyone, and you agree to notify Mix’d immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Mix’d has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Mix’d has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof).  Mix’d may, but is not obligated to, request documentation to verify your identity and/or certain Registration Data.  If you fail to timely verify your identity or Registration Data to Mix’d’s reasonable satisfaction or Mix’d has reasonable grounds to suspect your Registration Data is untrue, inaccurate, not current, or incomplete, Mix’d may, but is not obligated to, contact any or all matches or other users of your potentially inaccurate, non-current, incomplete, or fraudulent identity, data, or information in addition to its other rights hereunder. Mix’d reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use the Service if you have been previously removed by Mix’d, or if you have been previously banned from any of Mix’d Properties (as defined below).

 

2. LICENSE AND OWNERSHIP

License.  Mix’d grants you a personal, revocable, limited, non-transferable license to use the features and functions of the Website and Service to reproduce and use the App on your mobile device solely for your own personal use.  Furthermore, with respect to any App accessed through or downloaded from the Apple App Store, Google Chrome Web Store, Google Play marketplace or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g., Apple App’s Stores “Usage Rules”) (the “Usage Rules”) when using the App.  All updates and upgrades to the App will be governed by the version of these Terms published by Mix’d as of the date you install such update or upgrade. You agree, however, that we are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the App or for the Service.

Ownership.  Unless otherwise noted, the Website, App and Service (collectively, the “Mix’d Properties”) and all text, content and documents on the Mix’d Properties, any names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing therein used to operate Mix’d Properties, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on Mix’d Properties, including your account and content generated by you in the use of the Mix’d Properties (collectively, the “Content”) are owned by Mix’d (or its affiliates) or used with permission or under license from a third party (each an “Owner”), and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Mix’d and you, all right, title and interest in and to the Content will at all times remain with Mix’d and/or the Owners.  All brand names, product names, titles, slogans, logos, or service names and other marks used on the Website, App or Service, are registered and/or common law trade names, trademarks or service marks of Mix’d or the applicable Owner.

License to Your Content.  Mix’d does not claim ownership of any content, images, videos, text or other materials you upload to the Service (“Your Content”).  You grant Mix’d an non-exclusive, fully paid, perpetual, irrevocable, worldwide, royalty-free, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, digitally transmit, publicly perform, and publicly display, Your Content (in whole or in part) for any commercial and/or business purpose whatsoever, including for the purpose of operating and providing Mix’d Properties to you and to our other end-users. For the purposes of clarity, you may use Your Content solely for your own personal, non-professional purposes.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not Mix’d, are responsible for all of Your Content that you make available on or in Mix’d Properties.

Your Profile.  Your Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter.  You may not post or submit for print services a photograph of another person without that person’s permission.

Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Mix’d through its suggestion, feedback, wiki, forum or similar pages (Feedback) is at your own risk and that Mix’d has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Mix’d a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Mix’d Properties.

 

3. USE & RESTRICTIONS

You are permitted to use Mix’d Properties and/or the Content and/or for lawful purposes as provided in these Terms only. You will not, without Mix’d’s express written consent: (i) copy, retransmit, modify, disseminate, sell, exploit, display, perform, reuse, re-post, broadcast, circulate, or otherwise distribute any part of the Content, in each case for any purpose other than for which Mix’d Properties are being provided to you; (ii) use Mix’d Properties to conduct or promote any illegal activities; (iii) attempt to reverse engineer or jeopardize the correct functioning of Mix’d Properties, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies Mix’d Properties; (iv) attempt to gain access to secured portions of Mix’d Properties to which you do not possess access rights; (v) use Mix’d Properties to generate unsolicited email advertisements or spam; (vi) use Mix’d Properties to stalk, harass or harm another individual; (vii) use any high volume automatic, electronic or manual process to access, search or harvest information from Mix’d Properties (including without limitation robots, spiders or scripts);  (viii) interfere in any way with the proper functioning of Mix’d Properties, or interfere with or disrupt any servers or networks connected to Mix’d Properties, or disobey any requirements, procedures, policies or regulations of networks connected to Mix’d Properties; (ix) use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on Mix’d Properties or the Content contained on any such web page for commercial use without our prior express written permission; (x) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (xi) mirror or frame Mix’d Properties or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages; (xii) use any trade name, trademark, or brand name of ours in metatags, keywords and/or hidden text; (xiii) create derivative works from the Content or commercially exploit any part of the Content in any way; (xiv) use any portion of a Mix’d Properties or the Content in any manner that may give a false or misleading impression, attribution or statement as to us, the Owner or any other third party; or (xv) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Content.

Mix’d reserves all other rights.  Except as expressly provided herein, nothing on Mix’d Properties will be construed as conferring any license under Mix’d’s and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise.  Notwithstanding anything herein to the contrary, Mix’d may revoke any of the foregoing rights and/or your access to Mix’d Properties, or any part thereof, including the blocking of your IP Address, at any time without prior notice.

 

4. POSTING GUIDELINES

The Service includes various areas that enable you to post information, provide feedback, recommendations, reviews, and comments, and otherwise interact with other users, either through postings or by interacting in real-time (together with Mix’d relevant sections of the social media sites, the “Community Forums”).  With respect to any and all Community Forums, the following restrictions and obligations apply:

·       Mix’d will have the right, but not the obligation, to monitor or review any Community Forum at any time for any readily apparent violation of these Terms or illegal content.  Notwithstanding the foregoing, you acknowledge that Mix’d is under no obligation to edit or modify any information available in a Community Forum or decide any dispute or disagreement between posters and will have no liability to you for any content posted in a Community Forum. However, if any such violation of these Terms is brought to our notice by an affected person Mix’d shall inform you of such non-compliance and remove such content that is in contravention.

·       You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content.  Mix’d reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums and terminate your access and usage rights to the Mix’d Properties.

You are expressly prohibited from submitting any of the following types of content in any Community Forum:

·       Any content that is grossly harmful, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, racially or ethnically offensive, suggestive, harassing, threatening, blasphemous; paedophilic, hateful, disparaging, relating or encouraging money laundering or gambling, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; 

·       Any content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, material that depicts child-pornography, acts of violence, drug use or would violate the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New York Stock Exchange, the American Stock Exchange or the NASDAQ or such other securities exchange that is located in the country in which you reside;

·       Any content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;

·       Any content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;

·       Unsolicited promotions, political campaigning, advertising or solicitations;

·       Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;

·       Viruses, spyware, trojans, corrupted data or any other harmful, disruptive or other destructive files, code, or programs designed to interrupt, destroy or limit the functionality of any computer resource; or

·       Any content that in our sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Website, or which may expose Mix’d or any Owners or other users to any harm or liability of any type. Any content that harms minors in any way;

·       Any content that violates any law for the time being in force;

·       Any content that deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

·       Any content that threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

 

5. INTERACTIONS WITH OTHER USERS

User Responsibility.  You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that Mix’d reserves the right, but has no obligation, to intercede in such disputes.  You agree that Mix’d will not be responsible for any liability incurred as a result of such interactions.  YOU UNDERSTAND THAT MIX’D DOES NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS.  MIX’D MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF THE USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS.  MIX’D RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECKS OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) AT ANY TIME AND USING AVAILABLE PUBLIC RESOURCES.

Content Provided by Other Users.  The Mix’d Properties may contain content provided by other users (“User Content”).  Mix’d is not responsible for and does not control User Content, including the accuracy or completeness of any user’s profile information. You use all User Content and interact with other users at your own risk. In connection with the Services, we have adopted and implemented a policy that provides for the review and removal Prohibited Content which has been reported to us.  As part of that policy, we may suspend and/or terminate users who repeatedly upload Prohibited Content.  If you believe that one or our users is, through the use of our Service, uploading or displaying Prohibited Content, please contact us at: noah@mixdapp.com.

 

7. DISCLAIMERS

THE MIX’D PROPERTIES AND ALL OTHER FEATURES ON THE SERVICE ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND WITH RESPECT TO THE MIX’D PROPERTIES AND/OR CONTENT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.  SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN MIX’D HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPLICABLE LAW.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MIX’D, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION.  ADDITIONALLY, MIX’D DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT THE MIX’D PROPERTIES, CONTENT, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. MIX’D RESERVES THE RIGHT TO CHANGE ANY PART OF THE MIX’D PROPERTIES AT ANYTIME WITHOUT NOTICE.

 

8. LIMITATION OF LIABILITY

YOUR USE OF THE MIX’D PROPERTIES IS AT YOUR OWN RISK.  NEITHER MIX’D, ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE MIX’D PROPERTIES OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE MIX’D PROPERTIES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE.  THE FOREGOING WILL APPLY EVEN IF MIX’D WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE MIX’D PROPERTIES, THESE TERMS, OR ITS PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE MIX’D PROPERTIES.  YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST MIX’D AND ITS AFFILIATES, AGENTS, REPRESENTATIVES AND LICENSORS ARISING OUT OF YOUR USE OF THE MIX’D PROPERTIES.  BECAUSE SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THESE PROVISIONS MAY NOT APPLY TO YOU.  IF ANY PORTION OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF MIX’D AND ITS AFFILIATES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.)  THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE MIX’D PROPERTIES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

 

9. DIGITAL MILLENNIUM COPYRIGHT ACT

Mix’d is committed to respecting and protecting the legal rights of copyright owners.  As such, Mix’d adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.).  If you believe any of the Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”).  To be valid, a DMCA Takedown Notice must (i) be provided to Mix’d’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:

·       A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

·       Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;

·       Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;

·       Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;

·       A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

·       A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

Mix’d’s Copyright Agent to receive DMCA Takedown Notices is: email: noah@mixdapp.com. You acknowledge that for Mix’d to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

10. CHANGES TO THESE TERMS

PLEASE NOTE THAT The Terms are subject to change by MIX’D in its sole discretion at any time.  When changes are made, Mix’d will make a new copy of the Terms available at the Website and within the App.  Mix’d may require you to provide consent to the updated Terms in a specified manner before further use of Mix’d Properties is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using Mix’d Properties.  Otherwise, your continued use of Mix’d Properties constitutes your acceptance of such change(s).

 

11. TERMINATION

Mix’d may cancel, suspend or block your use of Mix’d Properties without notice if there has been a violation of these Terms, as determined by Mix’d in its sole discretion.  Your right to use Mix’d Properties will end once your registration is terminated, and any data you have stored on the Service may be unavailable later, unless Mix’d is required to retain it by law.  You may terminate your registration at any time.  Mix’d is not responsible or liable for any records or information that is made unavailable to you as a result of your termination of registration.  YOU AGREE THAT MIX’D WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE WEBSITE, APP OR SERVICE.  Any limitations on liability that favor Mix’d will survive the expiration or termination of these Terms for any reason.

 

12. ARBITRATION AGREEMENT; CLASS WAIVER OF TRIAL BY JURY:

Please read this Arbitration Agreement carefully.  It is part of your contract with Mix’d and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.   

Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Mix’d that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  This Arbitration Agreement applies to you and Mix’d, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

Notice Requirement and Informal Dispute Resolution.  Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  A Notice to Mix’d should be sent to: noah@mixdapp.com. After the Notice is received, you and Mix’d may attempt to resolve the claim or dispute informally.  If you and Mix’d do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding.  The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.  

Arbitration Rules Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (ADR Provider) that offers arbitration as set forth in this section.  If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.  The arbitration shall be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.  

Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration.  The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

Time Limits.  If you or Mix’d pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

Authority of Arbitrator.  If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Mix’d, and the dispute will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and Mix’d.  

Waiver of Jury Trial.  THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement.  Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court.  In the event any litigation should arise between you and Mix’d in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MIX’D WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law.  This Section shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief. 

SeverabilityIf any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

Right to Waive.  Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted.  Such waiver shall not waive or affect any other portion of this Agreement.

Survival of AgreementThis Arbitration Agreement will survive the termination of your relationship with Mix’d.

Small Claims Court.  Notwithstanding the foregoing, either you or Mix’d may bring an individual action in small claims court.

Emergency Equitable Relief.  Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

Claims Not Subject To Arbitration.  Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.  

Courts.  In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.   

 

13. GOVERNING LAW

The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

 

14. APPLICATION STORE ADDITIONAL TERMS & CONDITIONS

The following additional terms and conditions apply to you if you are using an App from an App Store.  To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to Apps from an App Store.

Acknowledgement. Mix’d and you acknowledge that this Agreement is concluded between Mix’d and you only, and not with the App Store, and Mix’d, not the App Store, is solely responsible for App and the content thereof.  To the extent this Agreement provides for usage rules for App that are less restrictive than the Usage Rules set forth for App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting App Store term applies, as applicable.

Scope of License. The license granted to you for App is limited to a non-transferable license to use App on either an iOS or Android device that you own or control and as permitted by the Usage Rules.

Maintenance and Support. Mix’d is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. Mix’d and you acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to App.

Warranty. Mix’d is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify the App Store, and the App Store may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Mix’d’s sole responsibility.

Product Claims. Mix’d and you acknowledge that the App Store is not responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to: (i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Mix’d’s liability to you beyond what is permitted by applicable law.

Intellectual Property Rights. Mix’d and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party’s intellectual property rights, Mix’d, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. 

Developer Name and Address. Mix’d’s contact information for any end-user questions, complaints or claims with respect to App is set forth below.

Third Party Terms of Agreement. You must comply with applicable third party terms of agreement when using App.

Third Party Beneficiary. You agree that the App Store provider (and its subsidiaries) is a third party beneficiary of this Agreement and will have the right to enforce this Agreement.

 

 

15. EXPORT CONTROL

You may not use, export, import, or transfer the Mix’d Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Mix’d Properties, and any other applicable laws.  In particular, but without limitation, the Mix’d Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Mix’d Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by Mix’d are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Mix’d’s products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

 

16. NOTICES & AGREEMENT TO BE BOUND BY ELECTRONIC SIGNATURE

The communications between you and Mix’d use electronic means, whether you visit Mix’d Properties or send Mix’d e-mails, or whether Mix’d posts notices on Mix’d Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Mix’d in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mix’d provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.

 

17. MISCELLANEOUS

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mix’d without restriction. Mix’d’s failure to enforce any provision of these Terms will not be deemed a waiver of such provision nor of the right to enforce such provision.  If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect.  A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.

 

18. QUESTIONS, COMPLAINTS, CLAIMS

If you have any questions, complaints or claims with respect to Mix’d Properties, please contact our Grievance Officer at: noah@mixdapp.com who will endeavour to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.