END USER LICENSE AGREEMENT AND TERMS OF SERVICE
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.
1. General Terms and Conditions.
- Consideration. Mixcord currently provides you with access to the Service for free. In return for enjoying this free access, you acknowledge and agree that Mixcord may generate revenues, increase goodwill or otherwise increase the value of Mixcord from your use of the Service, and you will have no right to share in any such revenues, goodwill or value whatsoever. Mixcord in its sole discretion may eventually charge you fees to access certain features of the Service. Mixcord will provide you with advance notice of any such fees before they take effect.
- Changes to this EULA. You understand and agree that we may change this EULA at any time without prior notice; provided that we will endeavor to provide you with prior notice of any material changes that may apply to you, including through the posting of a revised EULA that you may be required to accept in order to continue using the Service. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised EULA. If you find any change to this EULA or the Service unacceptable, then your sole remedy is to stop accessing, browsing and otherwise using the Service. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Mixcord that arose prior to the effective date of such revision.
- Updates. You acknowledge that Mixcord may from time to time issue updated versions of the Apps, and may automatically electronically update the version of any App that you are using on your mobile device. You consent to such automatic updating on your mobile device, and agree the terms of this EULA will govern any updates Mixcord provides to you that replace and/or supplement any portion of the Service, unless the update is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
- Jurisdictional Issues. The Service is controlled and operated by Mixcord from its offices in the State of California. Mixcord makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
- Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY MIXCORD. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or you have been authorized to use the Service by your parent or legal guardian who is at least 18 years of age.
- Additional Terms. We also may require you to agree to additional terms and/or policies that we make available to you from time-to-time in connection with your use of the Service, including, without limitation, any such terms that apply to contests that we run on the Service (" Additional Terms"). Any such Additional Terms are hereby incorporated into and subject to this EULA, and this EULA will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
2. The Service.
- Description. The Service enables you to create personal stories in the form of photographic or audiovisual works or GIFs (" Presentations"). In connection with making a Presentation, the Service enables you to (i) record audiovisual works or audio-only works, including, by way of example and not limitation, depicting or otherwise capturing you singing the lyrics or music (" User Productions") of musical works of your choice (including your own compositions); and/or (ii) include in your Presentations sound recordings obtained from the music library on your local device (each a " Local Track"). Subject to your clearing all necessary rights, you may create a Presentation using any combination of photographic, audiovisual and audio works (including Local Tracks or User Productions) permitted by the functionality of an App. Any person who creates a Presentation, whether or not such Presentation includes a User Recording, will be referred to herein as a " Creator." Creators and all other users of the Service will be referred to herein collectively as " Users." References to Presentations herein include User Productions. In addition to allowing you to create Presentations, the Service may also allow you to (A) save your Presentations locally to your device; and (B) share a Presentation or a link of your Presentations to certain third party social media platforms (e.g., Facebook, Instagram, Tumblr, Twitter, Vine or WhatsApp) subject to the terms and conditions in this EULA.
- Private Accounts. Mixcord may provide you with functionality to make Presentations publicly available on the Service or only available to people you approve. To the extent Mixcord provides this functionality within any Apps, you should select the preferred privacy setting available within the applicable App.
- Mobile Services. All or portions of the Service may be accessible via a mobile phone, tablet or other wireless device (collectively, " Mobile Services"). Your mobile carrier's normal messaging, data and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices. Mixcord does not represent or warrant that the Service will be compatible with your mobile device. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Mobile Services, and how much they will cost you. Nevertheless, all use of the Apps and the related Mobile Services must be in accordance with this EULA.
- Log-In Credentials. While you may always browse the public-facing portions of the Service without registering with us, in order to enjoy the full benefits of the Service, you must download an App and register an account with us (an " Account").
- Account Security. You are responsible for the security of your Account, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Mixcord immediately at email@example.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your Account. Mixcord will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Mixcord of such unauthorized use or loss of your credentials. Separate log-in credentials may be required to access External Sites (defined in Section 7 below).
- Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Mixcord requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of this EULA, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Mixcord, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Mixcord may terminate your Account immediately without notice to you and without any liability to you or any third party.
- Messages. The Service may provide you the ability to send messages to Users and third parties. You represent and warrant you will only send messages through the Apps to Users who have given you their express consent to receive such messages, and you will indemnify and hold Mixcord harmless from any and all claims arising out of your sending these messages to any Users. You are responsible for all fees and charges associated with such messages.
4. Intellectual Property Rights.
- License. Subject to your complete and ongoing compliance with this EULA, Mixcord hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to access and use the Service solely for your personal, non-commercial use and solely in strict compliance with the provisions of this EULA and in accordance with the features of the Service as it is marketed by Mixcord.
- Local Tracks. Nothing in this EULA grants you a license to reproduce, distribute, publicly perform, communicate to the public, synchronize or otherwise use and exploit any third party content, including, but not limited to, sound recordings and musical works included in Local Tracks in your Presentations. You are solely responsible for clearing the rights to any third party content, including, but not limited to, sound recordings and musical works used in Presentations. The ability to access Local Tracks in the local library of any device on which an App is stored does not by itself authorize you to use any such Local Tracks without the authorization of the copyright owners of the sound recordings (and the musical works embodied therein) in the local library.
- Posting to External Sites. You hereby acknowledge and agree that if you Post a Presentation to any External Sites, then you are solely responsible for obtaining all permissions and consents for Posting such Presentation to any External Site.
- Content. Except for User Content, the content that Mixcord provides to Users on or through the Service, including without limitation, any text, graphics, photos, software and interactive features, may be protected by copyright or other intellectual property rights and owned by Mixcord or its third party licensors (collectively, the " Mixcord Content"). Moreover, Mixcord solely owns all design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- Marks. Mixcord trademarks, service marks and logos (the " Mixcord Trademarks") used and displayed on the Service are Mixcord's registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (collectively with Mixcord Trademarks, the " Trademarks"). Except as otherwise permitted by law, you may not use the Trademarks to disparage Mixcord or the applicable third-party, Mixcord's or a third-party's products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Mixcord's prior express written consent. All goodwill generated from the use of any Mixcord Trademark will inure solely to Mixcord's benefit.
- Restrictions. Mixcord hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in this EULA or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Mixcord Content or Trademarks located or displayed therein.
5. User Content.
- Definition. " User Content" means any content that Users upload, post or transmit (collectively, " Post") to or through the Service including, without limitation, any text, photographs, Presentations (including any Local Tracks embodied therein), and any other works subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret and copyright laws, and excludes any and all Mixcord Content.
- Screening User Content. Mixcord offers Users the ability to submit User Content to or transmit User Content through the Service. Mixcord does not pre-screen any User Content, but reserves the right to remove, disallow, block or delete any User Content in its sole discretion. In addition, we have the right—but not the obligation—in our sole discretion to remove, disallow, block or delete any User Content that we consider to violate this EULA, applicable law or otherwise constitute Objectionable Content (as defined in Section 5.i below). Without limiting the preceding sentences of this Section, Mixcord also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content Posted on the Service as described more fully in Section 5.9 below. We recommend that you save copies of any Presentations that you Post to the Service on your personal device(s) in the event that you want to ensure that you have permanent access to copies of such Presentations. Mixcord does not guarantee the accuracy, integrity, appropriateness, availability or quality of any User Content, and under no circumstances will Mixcord be liable in any way for any User Content or the deletion thereof.
- Intellectual Property Rights. YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT AND SUBMITTING YOUR USER CONTENT TO THE SERVICE DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Licenses to User Content. If you Post User Content to or through the Service, you hereby grant Mixcord an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, and otherwise exploit and use (collectively, " Use") all or any part of all User Content you Post to or through the Service by any means and through any media and formats now known or hereafter developed, for the purposes of (i) advertising, marketing and promoting Mixcord and the Service; (ii) displaying and sharing your User Content to other Users of the Service; and (iii) providing the Service as authorized by this EULA. You further grant Mixcord a royalty-free license to use your user name, image, voice and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to Mixcord any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to Mixcord will be considered non-confidential and non-proprietary, and treated as such by Mixcord, and may be used by Mixcord in accordance with this EULA without notice to you and without any liability to Mixcord. For the avoidance of doubt, the rights granted in the preceding sentences of this Section include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings) and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting Mixcord the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a " PRO"), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
- You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Mixcord under this EULA. You represent and warrant that: (i) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in this EULA; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any person, including, but not limited to, the rights of any person visible in any of your User Content; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
- Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through this EULA to us. You are solely responsible for ensuring your compliance with the relevant PRO's reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in this EULA or have such music publisher enter into this EULA with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in this EULA. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label.
- Through-To-The-Audience Rights. All of the rights you grant in this EULA are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
- Objectionable Content. You are not permitted to and agree not to Post any User Content to the Service that is or could be interpreted to be abusive, bullying, defamatory, harassing, harmful (or present a risk of harm, loss, property damage, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness) to any person or animal, hateful, humiliating to other people (publicly or otherwise), inaccurate, infringing, invasive of privacy or publicity rights, libelous, objectionable, obscene, offensive, pornographic, seeking to exploit children, threatening, unlawful (including through the violation of contractual or fiduciary relationships), violent, vulgar or in violation of any applicable laws (including laws related to speech) or promoting bigotry, discrimination, hatred, intolerance, racism or inciting violence (including suicide), as Mixcord may determine in its sole and absolute discretion (collectively, " Objectionable** Content**"). The Posting of any Objectionable Content may subject you to third party claims and none of the rights granted to you in this EULA may be raised as a defense against any third party claims arising from your Posting of Objectionable Content. You also agree not to use the Service for illegal or unlawful purposes, including, without limitation, to stalk any other User or to encourage any User to harm themselves or any other person. If you encounter any Objectionable Content on the Service, then please immediately email Mixcord at firstname.lastname@example.org or inform us through the functionality offered on the Service. You acknowledge and agree that Mixcord provides you with the ability to report Objectionable Content as a courtesy, and Mixcord has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, Mixcord in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User's Account, removing all of the User's User Content Posted on the Service and/or reporting the User to law enforcement authorities, either directly or indirectly.
- No Liability. For the avoidance of doubt, Mixcord will not be liable for any unauthorized use of User Content by any User.
6. Restrictions on Use of the Service.
- In addition to any other restrictions set forth in this EULA, and without limiting those restrictions, when using the Service, you agree not to (and not to attempt to):
- make unauthorized copies of the Apps or any content made available on or through the Service, including without limitation by any automated or non-automated "scraping";
- rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party or use the Service to provide time sharing or similar services for any third party;
- take any action that imposes an unreasonable load on the Service's infrastructure;
- use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up the Service;
- delete or alter any material Mixcord or any other person or entity Posts on the Service, including by removing any copyright or other proprietary rights notices on the Service;
- frame or link to any of the materials or information available on the Service;
- alter, deface, mutilate or otherwise bypass any approved software through which the Service is made available;
- Use any trademarks, service marks, design marks, logos, photographs or other content belonging to Mixcord r obtained from the Service;
- access, tamper with or use non-public areas of the Service, Mixcord's (and its hosting company's) computer systems and infrastructure or the technical delivery systems of Mixcord's providers;
- harass, threaten, menace, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Mixcord employees;
- provide any false personal information to Mixcord;
- create a false identity or impersonate another person or entity in any way;
- create a new account with Mixcord, without Mixcord's express written consent, if Mixcord has previously disabled an account of yours;
- solicit, or attempt to solicit, personal information from other Users of the Service;
- restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service;
- use the Service to send emails or other communications to persons who have requested that you not send them communications;
- use the Service, without Mixcord's express written consent, for any commercial or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
- gain unauthorized access to the Service, to other Users' accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
- Post any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Service or communications equipment and computers connected to the Service;
- interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of those networks or servers, including by attempting to decipher any transmissions to or from the servers running an App;
- violate any applicable federal, state or local laws or regulations or the terms of this EULA; or
- assist or permit any persons in engaging in any of the activities described above.
7. External Sites.
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:
- Mixcord has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Mixcord is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Mixcord perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
9. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Mixcord respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Mixcord's intellectual property policy is to (i) remove or disable access to material that Mixcord believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service; and (ii) remove any User Content uploaded to the Service by "repeat infringers." Mixcord considers a "repeat infringer" to be any User that has uploaded User Content or Feedback to or through the Service and for whom Mixcord has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Mixcord has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon Mixcord's own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a " Notification of Claimed Infringement" containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Mixcord with the User alleged to have infringed a right you own or control, and you hereby consent to Mixcord making such disclosure. Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mixcord to locate the material;
- information reasonably sufficient to permit Mixcord to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that the 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 the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
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.
- Designated Agent Contact Information. Mixcord's designated agent for receipt of Notifications of Claimed Infringement (the " Designated Agent") can be contacted at:
- Via E-mail: email@example.com Via U.S.
- Mail: Mixcord, Inc., 202 Bicknell Ave., Santa Monica, CA 90405 Attn: Designated Agent
- Counter Notification. If you receive a notification from Mixcord that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Mixcord with what is called a " Counter Notification." To be effective, a Counter Notification must be in writing, provided to Mixcord's Designated Agent through one of the methods identified in Section 9.4 and include substantially the following information:
- a physical or electronic signature of the subscriber;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- the subscriber's name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, then for any judicial district in which Mixcord may be found, and that the subscriber will accept service of process from the person who provided notification under Section 9.d above or an agent of such person.
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.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Mixcord in response to a Notification of Claimed Infringement, then Mixcord will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Mixcord will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Mixcord will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Mixcord's Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on Mixcord's system or network.
- False Notifications of Claimed Infringement or Counter Notifications.
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.
10. Dispute Resolution.
- General. In the interest of resolving disputes between you and Mixcord in the most expedient and cost effective manner, you and Mixcord agree that any dispute arising out of or in any way related to this EULA or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this EULA or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND MIXCORD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS EULA SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 10.1 above, nothing in this EULA will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address a claim of defamation, violation of the Computer Fraud and Abuse Act or intellectual property infringement.
- Arbitrator. Any arbitration between you and Mixcord will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, " AAA Rules") of the American Arbitration Association (" AAA"), as modified by this EULA, and will be administered by the AAA. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting Mixcord. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (" Notice"). Mixcord's address for Notice is: Mixcord, Inc., 202 Bicknell Ave., Santa Monica, CA 90405, Attn: Chief Executive Officer. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (" Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Mixcord may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Mixcord must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Mixcord prior to selection of an arbitrator, Mixcord will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; (2) the last written settlement amount offered by Mixcord in settlement of the dispute prior to the arbitrator's award; or (3) $15,000.
- Fees. If you commence arbitration in accordance with this EULA, Mixcord will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Mixcord for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- No Class Actions. YOU AND MIXCORD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Mixcord agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. Except as otherwise provided in this EULA, if Mixcord makes any future change to this arbitration provision, other than a change to Mixcord's address for Notice, you may reject the change by sending us written notice within 30 days of the change to Mixcord's address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Mixcord.
- Enforceability. If Section 10.6 above is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
11. Limitation of Liability and Disclaimer of Warranties.
THE FOLLOWING TERMS IN THIS SECTION 11 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
- MIXCORD, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE " MIXCORD PARTIES") MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE MIXCORD PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA, OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
- THE MIXCORD PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO MIXCORD PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE MIXCORD PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND FITNESS FOR PARTICULAR PURPOSE.
- IN NO EVENT WILL ANY MIXCORD PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH MIXCORD PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MIXCORD'S LIABILITY, AND THE LIABILITY OF ANY OTHER MIXCORD PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
12. Third Party Disputes.
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.
14. Term and Termination of the EULA.
- Term. As between you and Mixcord, the Term of this EULA commences as of your first use of the Service and continues until the termination of this EULA by either you or Mixcord.
- Termination. You may terminate this EULA by sending written notification to Mixcord at firstname.lastname@example.org, deleting any Apps from your mobile device and terminating all other uses of the Service. If you wish to delete any of your User Content from the Service, then you may be able to do so using the permitted functionalities of the Apps, but the removal or deletion of such User Content will not terminate this EULA. Mixcord reserves the right, in its sole discretion, to restrict, suspend or terminate this EULA and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of this EULA or violate the rights of any third party copyright owner of musical works or sound recordings. Mixcord may further terminate this EULA immediately for any other reason with or without notice to you, using the email address associated with your account credentials. Mixcord reserves the right to change, suspend, discontinue or impose usage limits on all or any part of the Service at any time without prior notice or liability.
- Sections 1.1, 1.2, 1.3, 1.5, 1.6, 1.7, 2.3, 3.2, 3.4, 4-18 and all defined terms used therein will survive the termination of this EULA indefinitely.
15. Consent to Electronic Communications.
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 email@example.com.
18. Open Source Software.
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:
- Acapella (iOS) – select (i) on create screen -> Select “About This Version”
- Acapella (Android) - select (i) on create screen -> Select “About This Version”
- PicPlayPost (iOS) – select (gear icon) on the create screen -> Select “About This Version”
- PicPlayPost Prime (iOS) – select (gear icon) on the create screen -> Select “About This Version”
- PicPlayPost (Android) - select (gear icon) on the create screen -> Select “About This Version”
- PicPlayPost (Windows) - select (gear icon) on the create screen -> Select “About This Version”
- Square Video (iOS) – select (i) on create screen -> Select “About This Version”
- Square Video (Android) - select (i) on create screen -> Select “Terms Of Service” -> Scroll to the bottom of the page and select/click link for the disclosure
- PopAGraph (iOS) - select (gear icon) on menu screen -> Select “About This Version”
- PopAGraph PRO (iOS) - select (gear icon) on menu screen -> Select “About This Version”
- Rolling (iOS) – select (i) on create screen -> Select “About This Version”
- Mix (iOS) – select (i) on profile page -> Select “About This Version”
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