1. GENERAL TERMS AND CONDITIONS
USE OF OUR SERVICE
You may use the Mixupload Service only if you can form a binding contract with Mixupload, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. If you are under 18, your parent or guardian must enter into this Agreement on your behalf, and will be responsible for your use of and access to the Mixupload Service. Any use or access to the Mixupload Service by anyone under 13 is prohibited and in violation of this Agreement. If you are under 13, please do not attempt to register for the Mixupload Service or send any information about yourself to us, including your name, address, telephone number, or email address. If we learn that we have collected personal information from anyone under age 13 without verification of parental consent, we will delete that information as quickly as possible. Mixupload reserves all rights not expressly granted under this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
You must create an account at Mixupload in order to gain access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another User’s account without permission. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Mixupload immediately of any breach of security or unauthorized use of your account. Mixupload will not be liable for any losses caused by any unauthorized use of your account.
The Mixupload Service is available through Facebook’s “Facebook Connect” service[LG1] , which requires an active Facebook account, and you hereby represent and warrant that you have read and agreed to be bound by all applicable Facebook policies and will act in accordance with those policies, in addition to your obligations under this Agreement. If you access the Mixupload Service through Facebook Connect, Mixupload may require that your Mixupload user ID be the same as your user name for Facebook. If you sign into Mixupload through Facebook Connect, you will provide your Facebook account credentials to Mixupload, and you are consenting to have the information in that account transmitted into your Mixupload account, and you agree that you shall only use Facebook accounts owned by you, and not by any other person or entity.
By establishing a Mixupload account and providing us your email address, you consent to our using that email address to send you Mixupload Service-related notices, including any notices required by law, in lieu of communication by snail mail.
All “Content”, including but not limited to the sound recordings and related digital content, including songs, mixes and loops, music, downloads or samples, and all software, artwork, graphics, video, text, interfaces, trademarks, logos, images, photographs, and any other element of the Mixupload Service, including the layout, look and feel, organization is the property of or is licensed to Mixupload, and is protected by U.S. and international intellectual property rights laws. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any Content, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Mixupload Service. Use of the Mixupload Content or materials on the Mixupload Service for any purpose not expressly permitted by this Agreement is strictly prohibited. The Content is only for your personal, noncommercial use.
You agree not to engage in any of the following prohibited activities in connection with the Mixupload Service: (i) copying, distributing, or disclosing any part of the Mixupload Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Mixupload Service in a manner that sends more request messages to the Mixupload servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Mixupload Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure or that could disable, overburden, or impair the proper operation of the Mixupload Service, such as a denial of service attack; (vi) uploading invalid data, viruses, worms, or other software agents through the Mixupload Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Mixupload Service; (viii) using the Mixupload Service for any commercial purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Mixupload Service; (xi) accessing any content on the Mixupload Service through any technology or means other than those provided or authorized by the Mixupload Service; (xii) bypassing the measures we may use to prevent or restrict access to the Mixupload Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Mixupload Service or the content therein, or (xiii) decompiling, reverse engineering, or otherwise attempting to obtain the source code of the Mixupload Service.
You may not reverse engineer, decompile, disassemble, modify or disable any copy protection or use limitation systems associated with Content. You may not play and then re-digitize any Content. You may not create any "derivative works" by altering any of the Content.
You may not access or use the Mixupload Service if you work with or for a competitor of Mixupload, except with Mixupload’s prior written consent. In addition, you may not use or access the Mixupload Service for purposes of monitoring the performance or functionality for a competitor or for any third party, or for any other benchmarking or competitive purposes and you may not share any benchmarking data regarding the Mixupload Service usage with any third party without Mixupload’s prior written consent.
We may, without prior notice, change the Mixupload Service, stop providing the Mixupload Service or features of the Mixupload Service (to you or generally), or create usage limits for the Mixupload Service. We may permanently or temporarily terminate or suspend your access to the Mixupload Service without notice or liability to Mixupload, for any reason or for no reason, including if in our sole determination you violate any provision of this Agreement. Upon termination of this Agreement or your access to the Mixupload Service for any reason or no reason, you will continue to be bound by the terms of this Agreement which, by their nature, should survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
You are solely responsible for your interactions with other Mixupload Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Mixupload shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Mixupload Service allows Users to exchange information, messages, images, photos, videos and other content with the other Users of the Mixupload Service; and (ii) send information, messages, images, photos, videos and other content to a computer or other browser-enabled device and receive similar types of content and information from such devices. Any information, messages, images, photos, videos, files, personal or technical data, or any other type of information that you transmit using the Mixupload Service shall be referred to as “User Content” for the purposes of this Agreement.
You agree not to transmit User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, pornographic, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current; Do anything that could disable, overburden, or impair the proper operation of the Application, the Mixupload Services or the Site, such as a denial of service attack.
You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. Mixupload reserves the right, but is not obligated, to reject and/or remove any User Content that Mixupload believes, in its sole discretion, violates these provisions.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Mixupload takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Mixupload Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Mixupload shall not be liable for any damages you incur or allege to incur as a result of User Content.
END USER LICENSE GRANT
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Mixupload Service for your personal, non-commercial use, as permitted by the features of the Mixupload Service. Mixupload reserves all rights not expressly granted herein in the Mixupload Service and the Mixupload Content (as defined below). Mixupload may terminate this license at any time for any reason or no reason.
We make available software to access the Mixupload Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Mixupload Service. Mixupload does not warrant that the Mobile Software will be compatible with your mobile device. Mixupload hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Mixupload account on one mobile device owned or leased solely by you, for your personal, non-commercial use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and/or other proprietary rights notices on the Mobile Software. You acknowledge that Mixupload may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Mixupload or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof).
MOBILE SOFTWARE FROM APPLE APP STORE
This paragraph is intended to apply to you if you have downloaded the Mobile Software from the Apple App Store. Mixupload and you acknowledge that this Agreement is concluded between Mixupload and you only, and not with Apple Inc. (“Apple”), and as between Mixupload and Apple, Mixupload, not Apple, is solely responsible for the Software and Mixupload Services and the content thereof. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Software. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
This Agreement incorporates by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the “Mobile Software” is considered the “Licensed Application” as defined in the LAEULA and “Mixupload” is considered the “Application Provider” as defined in the LAEULA. If any terms of this Agreement conflict with the terms of the LAEULA, the terms of this Agreement shall control.
MOBILE SOFTWARE FROM GOOGLE ANDROID MARKET
This paragraph is intended to apply to you if you have downloaded the Mobile Software on a device powered by the Android operating system. Mixupload and you, the end‐user of the Mobile Software and Mixupload Services, acknowledge that the Agreement is entered into by and between Mixupload and you. Mixupload is solely responsible for the Software and Mixupload Services. Should you have downloaded the Software from the Google Android Market located online at http://www.android.com/market/. You acknowledge that you have reviewed the Android Market Terms of Service (located online at http://www.google.com/mobile/android/market‐tos.html) and the Android Market Business and Program Policies (located online at http://www.google.com/mobile/android/market‐policies.html). 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 “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.
MIXUPLOAD PROPRIETARY RIGHTS
Except for your User Content, the Mixupload Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “Mixupload Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Mixupload and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Mixupload Service. Use of the Mixupload Content or materials on the Mixupload Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
From time to time, Mixupload may provide additional features and/or Mixupload Services that you pay for (“Premium Mixupload Services”). Mixupload may also offer from time to time in its sole discretion, certain Premium Mixupload Services for free, whether for a trial period or otherwise. Unless expressly stated otherwise, references in this Agreement to the Mixupload Service include the Premium Mixupload Services.
Mixupload cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
ELECTRONIC SIGNATURES AND CONTRACTS.
Your use of the Mixupload Service and establishment of an account includes the ability to enter into agreements and/or enter into other transactions, including purchases, electronically. You agree that any submissions you make for electronic transaction constitute your intent and agreement to be bound by the terms of this Agreement and to be bound by such transaction. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on the Mixupload Service, including notices of cancellation, policies, contracts, and applications
THIRD PARTY LINKS
You agree to defend, indemnify and hold harmless Mixupload and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (collectively, the “Mixupload Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Mixupload Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties you make in this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party’s access and use of the Mixupload Service with your username, password or other appropriate security code.
THE MIXUPLOAD SERVICE AND ANY PRODUCT OR SERVICE YOU PURCHASE THROUGH THE MIXUPLOAD SERVICE (“PRODUCT”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MIXUPLOAD SERVICE AND THE PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, MIXUPLOAD, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE MIXUPLOAD SERVICE OR THE PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MIXUPLOAD SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE MIXUPLOAD SERVICE.
MIXUPLOAD DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MIXUPLOAD SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MIXUPLOAD WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IF YOU DOWNLOADED THE MOBILE SOFTWARE FROM THE APPLE APP STORE, YOU FURTHER ACKNOWLEDGE THAT APPLE HAS NO RESPONSIBILITY FOR ADDRESSING ANY CLAIMS RELATING TO THE SOFTWARE OR MIXUPLOAD SERVICES OR YOUR POSSESSION AND/OR USE OF THE SOFTWARE OR MIXUPLOAD SERVICES, INCLUDING, BUT NOT LIMITED TO: (I) PRODUCT LIABILITY CLAIMS; (II) ANY CLAIM THAT THE SOFTWARE OR MIXUPLOAD SERVICES FAIL TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (III) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.