We are Mixcord, Inc. (" Mixcord ," " we ," " us" or " our"), the provider of the website located at http://www.mixcord.co and any other online properties owned or controlled by or on behalf of Mixcord (each a " Website" and, collectively, the " Websites"), the mobile software applications that we make available for download, including Mixcord™, Rolling from PicPlayPost™, Acapella from PicPlayPost™, PicPlayPost®, PicPlayPost® PRIME, PopAGraph™, PopAGraph™ Pro, StackMotion™, Video in Video™, Square Video™, Miya the Bear and Video Swivel™ (each, an " App" and, collectively, the " Apps"), and any Mixcord-enabled functionality included in any third party software applications (" Mixcord Enabled Applications") (the Websites, Apps and Mixcord Enabled Applications are, collectively, the " Service").
Material Terms: As provided in greater detail in this EULA (and without limiting the express language of this EULA), you acknowledge the following:
the Service is licensed, not sold to you, and you may use the Service only as set forth in this EULA;
the use of the Service may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator's (the " Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
we provide the Apps to you on an "as is" basis without warranties of any kind and Mixcord's liability to you is limited;
disputes arising between you and Mixcord will be resolved by binding arbitration. By accepting this EULA, as provided in greater detail in Section 10 below, you and Mixcord are each waiving the right to a trial by jury or to participate in a class action ;
if you are using an App on an iOS-based device, then you agree to and acknowledge the "Notice Regarding Apple," below.
The Service may contain links to or the ability to share information, including, but not limited to, Presentations, with third party websites ("External Sites"). Mixcord does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Mixcord is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and mobile devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Mixcord will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
While we are continually working to develop and evaluate our own product ideas and features, we know we don't have all the answers. We therefore welcome your feedback, comments and suggestions. If you choose to contribute by sending Mixcord r our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively "Feedback"), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Mixcord, you agree that:
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party's obligations to provide a valid counter notification under the Copyright Act.
The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Mixcord] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Mixcord reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law. Mixcord also reserves the right to make public any Notifications of Claimed Infringement and any Counter Notifications, and you hereby consent to such public disclosure.
THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE MIXCORDPARTIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless the Mixcord Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of this EULA; (b) your access to, use or misuse of Mixcord Content or the Service; or (c) your User Content. Mixcord will provide notice to you of any such claim, suit or proceeding. Mixcord reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if Mixcord believes that you are unwilling or incapable of defending Mixcord's interests. In such case, you agree to cooperate with any reasonable requests assisting Mixcord's defense of such matter at your expense.
This EULA is governed by the internal substantive laws of the State of California without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in Santa Clara County, California. You agree that no joint venture, partnership, employment or agency relationship exists between you and Mixcord as a result of this EULA or use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Mixcord other than pursuant to this EULA. If any provision of this EULA is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this EULA, which will remain in full force and effect. Failure of Mixcord to act on or enforce any provision of this EULA will not be construed as a waiver of that provision or any other provision in this EULA. No waiver will be effective against Mixcord unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Mixcord and you, this EULA constitutes the entire agreement between you and Mixcord with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Section headings are provided merely for convenience and will not be given any legal import. This EULA will inure to the benefit of our successors and assigns. Yu may not assign this EULA or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of Mixcord. This means that in the event you dispose of any device on which you have installed an App, such as by sale or gift, you are responsible for deleting such App from your device prior to such disposition. Mixcord may assign this EULA, including all its rights hereunder, without restriction.
If you would like to contact us in connection with your use of the Service, then you may do so by mail at Mixcord, Inc., 202 Bicknell Ave., Santa Monica, CA 90405, and by email at firstname.lastname@example.org.
The Apps contain certain open source software. Each item of open source software is subject to its own applicable license terms, which are set forth in the section of the applicable App entitled:
NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Mixcord only, not with Apple, and Apple is not responsible for the Apps or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of the Apps to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Apps fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Apps or your possession and use of the Apps infringe that third party's intellectual property rights. You agree to comply with any applicable third party terms, when using the Apps. Apple, and Apple's subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby 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. If Mixcord provides a translation of the English language version of this EULA, the translation is provided solely for convenience, and the English version will prevail.
This Agreement was last modified and effective as of January 6, 2017