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, 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.
LIMITATION OF LIABILITY
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR MIXUPLOAD SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN MIXUPLOAD AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE MIXUPLOAD SERVICES. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF MIXUPLOAD ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE MIXUPLOAD PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE MIXUPLOAD PARTIES.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
As required by the Digital Millennium Copyright Act of 1998, the following individual is designated for notification of potential copyright infringement regarding the Mixupload Service: Leonard Grayver, Esq., 21515 Hawthorne Blvd., Suite 450, Torrance, CA 90503.
If you believe the Mixupload Service infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512):
A physical or electronic signature of the copyright owner or authorized agent;
Identification of the copyrighted work(s) claimed to have been infringed;
Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information regarding how we may contact you (e.g., mailing address, telephone number, e-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 by you that the information in your notification is accurate, and, under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the copyright owner.
It is expected that all Users will comply with applicable copyright laws. However, if we are notified of claimed copyright infringement, or otherwise become aware of facts and circumstances from which infringement is apparent, we will respond expeditiously by removing or disabling access to the material that is claimed to be infringing or to be the subject of infringing activity. ARTEC will comply with the appropriate provisions of the DMCA in the event a counter notification is received by its designated agent
You agree that the Mixupload Service shall be deemed solely based in the State of California, USA. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Mixupload hereby expressly consent to the exclusive personal jurisdiction of the courts of Santa Clara County, California.
Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND MIXUPLOAD ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
We are not responsible for addressing any disputes between any Users. In the event of a concern, claim or dispute, Users shall communicate directly with the other party in resolving such concern, claim or dispute. In the event we receive complaints about a User, we will investigate the complaint at our sole discretion and may direct the User to respond to the other party directly.
ENTIRE AGREEMENT / SEVERIBILITY
This Agreement, together with any amendments and any additional agreements you may enter into with Mixupload in connection with the Mixupload Service, shall constitute the entire agreement between you and Mixupload concerning the Mixupload Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Mixupload’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
THIRD PARTY BENEFICIARIES AND AGREEMENTS
If you downloaded the Mobile Software from the Apple App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof. You agree to comply with, and your license to use the Mobile Software and Mixupload Service is conditioned upon your compliance with, all applicable third-party terms of agreement, as may be applicable, when using the Mobile Software and/or Mixupload Service.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mixupload without restriction or notice.
SPECIAL PROVISIONS APPLICABLE TO USERS OUTSIDE THE UNITED STATES.
The following provisions apply to users outside the United States: You consent to having your personal data transferred to and processed in the United States. If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department’s list of Specially Designated Nationals you will not engage in commercial activities using the Mixupload Service.
We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, Apple App Store or Google Android Marketplace, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
Should you wish to contact us with any questions, complaints or claims with respect to the Mixupload Service, you should visit Mixupload website at www.Mixupload.com or email support@Mixupload.com.
SPECIFIC TERMS AND CONDITIONS APPLICABLE TO CONTENT UPLOADS
General. Mixupload Service allows Users who are the rights holders’ (the “Owners”) to certain master recordings (collectively referred to as “Masters”) to upload the Masters to the Mixupload Service for further sale or distribution to the Users in a variety of file or mobile formats.
Grant of Rights. Subject to the terms and conditions of this Agreement, the Owner hereby grants us the non-exclusive right:
To digitally distribute, sell, advertise, publicly perform and broadcast throughout the Territory, the Masters, in all forms of digital or electronically transmitted media now known or hereafter devised, including but not limited to MP3, 128 kbps files and mobile streaming through the Mixupload mobile application, including in an off-line mode (kept in the temporary memory of a mobile device in an encrypted format).
To transmit, distribute, and exploit the Masters via digital download Internet transmission through the Mixupload Service to its users.
To stream or broadcast each Master in any duration as a preview stream on a gratis basis for purposes of inducing users to download the Masters. Owner agrees no royalties or payments thereof shall accrue or be payable with respect to any such gratis preview stream.
To use, on a non-exclusive basis, the name, likeness and biography, approved album artwork, lyrics and liner notes of each artist whose performance is embodied in said Master in connection with the advertising, publicizing or sale of Masters in all configurations.
To directly engage in the digital distribution of the Masters through the Mixupload Service.
To sell Masters to users who may publicly perform the Masters, e.g., radio stations, restaurants and other businesses that may play the Masters for customers at their place of business. The license to allow public performance of the Masters shall apply mutatis mutandis to the users who purchase the Masters through the Mixupload Service.
To collect moneys and retain the money in its accounts for further distribution to the Owner.
Owner’s Warranty. Owner specifically warrants and represents that the Owner owns or otherwise has the right to contract to sell or otherwise distribute the uploaded music, tracks, or files uploaded to the Mixupload Service. In the event that Owner uploads tracks to which the Owner is not an owner or rights holder, Mixupload may remove the offending tracks from the Mixupload Service, and may immediately terminate this Agreement and the Owner’s account.
Restrictions on Mixupload. Mixupload shall not edit, remix, resequence or otherwise alter any Master delivered by Owner to Mixupload in any manner.
Payments. In consideration of the rights granted to Mixupload hereunder, and conditioned upon Owner's performance of the terms and conditions hereof, Owner shall be paid an amount equal to 100% percent of Mixupload’s Gross Receipts (as defined herein) actually received by Mixupload on account of any sale, of the Masters. “Gross Receipts” shall be understood to all monies actually received by Mixupload in relation to the sale, license or exploitation of the Masters hereunder. Mixupload shall deduct any bank or transaction fees prior to providing payment to Owner.
Pricing. Owner shall determine, at the Owner’s own election, to: 1) sell the track at a price determined by Owner; 2) sell the track at a price determined by a proprietary Mixupload algorithm; or, 3) provide the track for free download under the Creative Commons license (to choose the most appropriate Creative Common license you can use the wizard provided by Creative Commons at http://creativecommons.org/choose/).
Payments and Accounting. Mixupload shall pay and account to Owner as follows:
Pay any amount due owner within five (5) business days from receipt of funds by Mixupload. No payment shall be due to Owner until such payments total at least US $15.00 (or its approximate equivalent in foreign currency).
Provide to Owner with each payment a record of all Gross Receipts received by Mixupload.
Provide full reporting on the number of downloads, plays, streams, and other user activity relating to the tracks/files uploaded by Owner.
Owner shall permit Mixupload to deposit and store monies received as payment for the tracks/files in any Mixupload bank account pending future payments to Owner.
Owner shall have the right to audit Mixupload's books and records to verify the accuracy of such statements. Such audits shall be permitted no more than once with respect to any statement and once in each calendar year. Such audits shall be performed at Owner's expense, at the place where Mixupload maintains such records, during Mixupload's normal business hours and on at least thirty (30) days' prior notice. Any objection relating to any accounting statement, or any lawsuit arising therefrom, must be made (and any lawsuit commenced), no later than one (1) year after the date the statement is rendered. Owner hereby waives any longer statute of limitations that may be permitted by law
Owner’s Responsibility. Owner shall be solely responsible for the payment of any publishing, mechanical royalties and any third party payments due to any other royalty participants or rights holders associated with the Masters.
Owner’s Rights. Owner shall have the right to remove the Owner’s tracks from the Mixupload Service at any time, without penalty. Owner shall have the right to distribute the Owner’s music, tracks, or files through any other method of distribution, including other Internet sites or portals. Owner shall have the right to request from Mixupload the statistics (such as, number of downloads, number of times the tracks was listened to, etc.) concerning the Masters uploaded by the Owner to the Mixupload Service.
General Terms. All other General Terms and Conditions to the extent not inconsistent shall apply.