Terms of Use (LAST REVISED MAY 9, 2018)

Welcome to Mixx!  These Terms of Use (the Terms) govern your use of Mixx, Together, LLC (Mixx), service available through our website located at www.mixxapp.net (the Website), and mobile software application known as Mixx (the App) (the functionality provided by the Website and App collectively referred to as the Service).

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, BROWSING, OR USING THE WEBSITE OR SERVICE, CLICKING ON THE I ACCEPT BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING THE APP, YOU REPRESENT (1) THAT YOU HAVE ATTAINED THE LEGAL AGE STATUTORILY REQUIRED UNDER THE LAWS OF THE COUNTRY IN WHICH YOU RESIDE TO FORM A BINDING CONTRACT WITH MIXX, (2) THAT 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 (SET FORTH BELOW). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE WEBSITE, THE APP, OR THE SERVICE.

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 ANY AND ALL DISPUTES.

1.            MIXX APP

The Mixx app enabling users to: (a) connect with fellow travelers in the vicinity of the user and/or search for fellow travelers in a certain location, destination, or area; (b) post queries to, and answer messages on, the noticeboard (c) attend social events recommended by the app; (d) create and post events (e) invite other users to social events recommended by the app; (f) ping other travelers at events.  The native mobile application Mixx is available from Apples App Store and Google Play, and any other native or web-based mobile applications made available from time-to-time.

2.            ACCOUNTS

Registration. In order to get access to certain features of the Service you may be required to register for an account (Account). If you access the Service through a social networking site (an SNS), such as Facebook, you may link your Account with such SNS account (SNS Account) by allowing Mixx 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 Mixx and/or grant Mixx 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 obliging Mixx to pay any fees or making Mixx subject to any usage limitations imposed by such third-party service providers. By granting Mixx access to any SNS Accounts, you understand that Mixx may have access, make available, and store (if applicable) any information, data, text, software, music, sound photographs, messages, tags, and/or other materials accessible through the Service that you have provided to and have stored in your SNS Account (SNS Content) so that it is available on and through the Service 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 Service. 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 MIXX 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. Mixx makes no effort to review any SNS Content for any purpose including, but not limited to, for accuracy, legality, or non-infringement, and Mixx is not responsible for any SNS Content.

Registration Data. In registering for the Service, 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 Mixx 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 if Mixx has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Mixx 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). Mixx may, but is not obliged to, request documentation to verify your identity and/or certain Registration Data. If you fail to verify timely your identity or Registration Data to Mixxs reasonable satisfaction, or if Mixx has reasonable grounds to suspect your Registration Data is untrue, inaccurate, not current, or incomplete, Mixx may, but is not obliged 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. Mixx 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 partys rights. You agree not to create an Account or use the Service if you have been previously removed by Mixx, or if you have been previously banned from any of Mixx Properties (as defined below).

3.            LICENSE & OWNERSHIP

License. Mixx 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 Apps 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 Mixx as of the date you install such update or upgrade. You agree, however, that Mixx is not obliged 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 Mixx Properties) and all text, content, and documents on the Mixx 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 Mixx Properties, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software, and other works on Mixx Properties, including your account and content generated by you in the use of the Mixx Properties (collectively, the Content) are owned by Mixx (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 Mixx and you, all right, title, and interest in and to the Content will at all times remain with Mixx 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 Mixx or the applicable Owner.

License to Your Content. Mixx does not claim ownership of any content, images, videos, text, or other materials you upload to the Service (Your Content). You grant Mixx an non-exclusive, fully paid, perpetual, irrevocable, worldwide, royalty-free, and fully sub-licensable 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 Mixx 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 you the right to grant the license stated above. You agree that you, not Mixx, are responsible for all of Your Content that you make available on or in Mixx Properties.

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

Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Mixx through its Contact Us page is at your own risk and that Mixx 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 Mixx a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable 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 sub-license the foregoing rights, in connection with the operation and maintenance of the Mixx Properties.

4.            USE & RESTRICTIONS

 

You are permitted to use Mixx Properties and/or the Content for lawful purposes as provided in these Terms only. You will not, without Mixxs express written consent: (i) copy, retransmit, modify, disseminate, sell, exploit, display, perform, re-use, re-post, broadcast, circulate, or otherwise distribute any part of the Content, in each case for any purpose other than the purpose for which Mixx Properties are being provided to you; (ii) use Mixx Properties to conduct or promote any illegal activities; (iii) attempt to reverse engineer or jeopardize the correct functioning of Mixx Properties, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies Mixx Properties; (iv) attempt to gain access to secured portions of Mixx Properties to which you do not possess access rights; (v) use Mixx Properties to generate unsolicited email advertisements or spam; (vi) use Mixx Properties to stalk, harass, or harm another person; (vii) use any high-volume automatic, electronic, or manual process to obtain access to, to search, or to harvest information from Mixx Properties (including without limitation robots, spiders, or scripts); (viii) interfere in any way with the proper functioning of Mixx Properties, or interfere with or disrupt any servers or networks connected to Mixx Properties, or disobey any requirements, procedures, policies, or regulations of networks connected to Mixx 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 Mixx 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 Mixx 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 Mixx 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 Mixx Properties or the Content in any manner that may give a false or misleading impression, attribution, or statement as to Mixx, the Owner, or any other third party; or (xv) alter, remove, or obscure any copyright notice, digital watermark, proprietary legend, or any other notice included in the Content.

 

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

5.           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 Mixx relevant sections of the social media sites, the Community Forums). With respect to any and all Community Forums, the following restrictions and obligations apply:

 

Mixx 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 Mixx 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, Mixx shall inform you of such non-compliance and shall remove such content that is in contravention. You acknowledge that any opinions, statements, recommendations, offers, advice or other information presented or disseminated on the Community Forums are those of the respective authors thereof, who are solely responsible and liable for their content. Mixx reserves the right, in its sole discretion, to refuse to post or remove any material submitted to or posted on the Community Forums and terminate the access and usage rights to the Mixx Properties of the person posting such material. 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 to 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 planning or committing 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, or drug use, or material that 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 otherwise destructive files, code, or programs designed to interrupt, destroy, or limit the functionality of any computer resource; or any content that in Mixxs sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Website, or which may expose Mixx 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, defense, security, or sovereignty of any country or friendly relations with foreign states, or the same of public order, or incites the commission of any cognizable offense, or prevents the investigation of any offense, or insults any nation.

6.            INTERACTIONS WITH OTHER USERS

User Responsibility. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service; provided, however, that Mixx reserves the right, but has no obligation, to intercede in such disputes. You agree that Mixx will not be responsible for any liability incurred as a result of such interactions. YOU UNDERSTAND THAT MIXX DOES NOT CURRENTLY CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. MIXX MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF THE USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS. MIXX 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 Mixx Properties may contain content provided by other users (User Content). Mixx is not responsible for and does not control User Content, including the accuracy or completeness of any users profile information. You use all User Content and interact with other users at your own risk. In connection with the Service, Mixx has adopted and implemented a policy that provides for the review and removal of Prohibited Content that has been reported to Mixx. As part of that policy, Mixx may suspend and/or terminate users who repeatedly upload Prohibited Content. If you believe that one of Mixxs users is, through the use of the Service, uploading or displaying Prohibited Content, please contact Mixx.

7.            UNITED STATES ONLY

By using the Service, you agree and acknowledge that it is hosted in the United States. If you are attempting to obtain access to the Service from a physical location within the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of this Website, which is governed by U.S. law, these Terms, and Mixx Privacy Policy (http://www.mixxapp.net/privacy.html), you are transferring your personal information to the United States and you consent (1) to such transfer, (2) to the application of the laws of the United States and/or the State of New York with respect to any dispute arising from or related to the Privacy Policy and/or your use of Mixx Properties, other than such rules, regulations, case law, and/or international treaties that would result in the application of the laws of a jurisdiction other than the United States or the State of New York, and (c) to the exclusive jurisdiction of the courts of the United States and the State of New York. Any claim or dispute between you and Mixx that arises in whole or in part from your use of the Website or App or Service or in connection with the Privacy Policy will be decided exclusively by a court of competent jurisdiction located in New York County, New York, U.S.A. Each party hereby agrees that such court will have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam jurisdiction and venue of such courts and waives any objection based on inconvenient forum.

8.            DISCLAIMERS

 

THE MIXX 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 MIXX 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 MIXX 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 MIXX, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS WILL CREATE ANY WARRANTY, REPRESENTATION, OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, MIXX 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 MIXX PROPERTIES, CONTENT, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. MIXX RESERVES THE RIGHT TO CHANGE ANY PART OF THE MIXX PROPERTIES AT ANYTIME WITHOUT NOTICE.

 

9.            LIMITATIONS OF LIABILITY

 

YOUR USE OF THE MIXX PROPERTIES IS AT YOUR OWN RISK. NEITHER MIXX, 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 MIXX PROPERTIES OR ARISING OUT OF ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY CONTENT OR OTHER INFORMATION AVAILABLE ON THE MIXX 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 MIXX WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE MIXX PROPERTIES, THESE TERMS, OR ITS PRIVACY POLICY, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE MIXX PROPERTIES. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST MIXX AND ITS AFFILIATES, AGENTS, REPRESENTATIVES AND LICENSORS ARISING OUT OF YOUR USE OF THE MIXX 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 MIXX AND ITS AFFILIATES WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00) THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE MIXX 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.

10.          DIGITAL MILLENIUM COPYRIGHT ACT

Mixx is committed to respecting and protecting the legal rights of copyright owners. As such, Mixx 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 Mixx at info@mixxapp.net.

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 address; 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. For clarity, only DMCA Takedown Notices should go to info@mixxapp.net. You acknowledge that for Mixx to be authorized to take down any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

11.          CHANGES TO THESE TERMS

PLEASE NOTE THAT the Terms are subject to change by Mixx in its sole discretion at any time. When changes are made, Mixx will make a new copy of the Terms available at the Website and within the App. Mixx will also update the Last Updated date at the bottom of these Terms. If Mixx makes any material changes, and you have registered with Mixx to create an Account, Mixx will also send an e-mail to you at the last e-mail address you provided to Mixx pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of Mixx Properties and will be effective thirty (30) days after posting notice of such changes on the Website or App for existing users, provided that any material changes will be effective for users who have an Account with Mixx upon the earlier of thirty (30) days after posting notice of such changes within the Website or App or thirty (30) days after dispatch of an e-mail notice of such changes to users who have registered for an Account. Mixx may require you to provide consent to the updated Terms in a specified manner before further use of Mixx Properties is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you will stop using Mixx Properties. Otherwise, your continued use of Mixx Properties constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE AND APP TO VIEW THE THEN-CURRENT TERMS.

12.          TERMINATION

Mixx may cancel, suspend, or block your use of Mixx Properties without notice if there has been a violation of these Terms, as determined by Mixx in its sole discretion. Your right to use Mixx Properties will end once your registration is terminated, and any data you have stored on the Service may be unavailable later, unless Mixx is required to retain it by law. You may terminate your registration at any time. Mixx 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 MIXX 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 Mixx will survive the expiration or termination of these Terms for any reason.

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

Please read this Arbitration Agreement carefully. It is part of your contract with Mixx 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 Mixx 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 Mixx, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as to all authorized or unauthorized users or beneficiaries of the Service 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 Mixx should be sent to: info@mixxapp.net.  After the Notice is received, you and Mixx may attempt to resolve the claim or dispute informally. If you and Mixx 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 attorneys 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 Mixx 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 Mixx, 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 Mixx.

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 Mixx in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MIXX 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.

 

Severability. If 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 Agreement. This Arbitration Agreement will survive the termination of your relationship with Mixx.

Small Claims Court. Notwithstanding the foregoing, either you or Mixx 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 partys 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.

14.          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.

15.          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. Mixx and you acknowledge that this Agreement is concluded between Mixx and you only, and not with the App Store, and Mixx, 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. Mixx is solely responsible for providing any maintenance and support Service with respect to App, as specified in this Agreement (if any), or as required under applicable law. Mixx and you acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support Service with respect to App.

Warranty. Mixx 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 Mixxs sole responsibility.

Product Claims. Mixx 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 Mixxs liability to you beyond what is permitted by applicable law.

 

Intellectual Property Rights. Mixx and you acknowledge that, in the event of any third-party claim that App or your possession and use of App infringes that third partys intellectual property rights, Mixx, 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. Mixxs contact information for any end-user questions, complaints or claims with respect to App is info@mixxtogether.com.

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.

16.          EXPORT CONTROL

You may not use, export, import, or transfer the Mixx Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Mixx Properties, and any other applicable laws. In particular, but without limitation, the Mixx Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Departments list of Specially Designated Nationals or the U.S. Department of Commerces Denied Persons List or Entity List. By using the Mixx 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, the Service, or technology provided by Mixx 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 Mixxs products, Service, or technology, either directly or indirectly, to any country in violation of such laws and regulations.

17.          NOTICES & AGREEMENT TO BE BOUND BY ELECTRONIC SIGNATURE

The communications between you and Mixx use electronic means, whether you visit Mixx Properties or send Mixx meassages, or whether Mixx posts notices on Mixx Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Mixx in an electronic form, and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mixx 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.

18.          MISCELLANEOUS

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mixx without restriction. Mixxs 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.

19.          QUESTIONS, COMPLAINTS, CLAIMS

If you have any questions, complaints or claims with respect to Mixx Properties, please contact us at info@mixxapp.net.  We will endeavor to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, California 95814, or by telephone at (800) 952-5210.