Please read this Agreement carefully before accessing or using the Website & Mobile Application. By accessing or using any part of the Website and/or Mobile Application, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website and/or Mobile Application or use any services. If these terms and conditions are considered an offer by MCD, acceptance is expressly limited to these terms. The Website & Mobile Applications is available only to individuals who are at least 13 years old. By accepting these terms and conditions and accessing the website and/or Mobile Application, the user certifies that he or she is age 13 or older.
Your Mixsee Account and Site. If you create a Mixsee guide on the Website or Mobile Application, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the guide. You must not describe or assign keywords or assets to your guide in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and MCD may change or remove any description, asset or keyword that it considers inappropriate or unlawful, or otherwise likely to cause MCD liability at MCD’s sole discretion. By accepting these terms and conditions and accessing the Website and/or Mobile Application, you expressly grant MCD the right to change or remove any description, asset or keyword and agree to release and hold harmless MCD from any liability arising therefrom. You must immediately notify MCD of any unauthorized use of your guide, your account or any other breaches of security in writing via electronic mail or written communication. MCD will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions and, by accepting these terms and conditions, You agree to release and hold harmless MCD from any liability arising therefrom.
Responsibility of Contributors. If you create a guide, comment on a guide, post material to the Website and/or Mobile Application, post links on the Website and/or Mobile Application, or otherwise make (or allow any third party to make) material available by means of the Website and/or Mobile Application (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:
- the uploading, downloading, copying and use of Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- the Content is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other guides and web sites, and similar unsolicited promotional methods;
- the Content is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your guide’s URL or name is not the name of a person other than yourself or company other than your own; and
By submitting Content to MCD for inclusion on our Website and/or Mobile Application, you grant MCD a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your Content. If you delete Content, MCD will use reasonable efforts to remove it from the Website & Mobile Application, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
Without limiting any of those representations or warranties, MCD has the right (though not the obligation) to, in MCD’s sole discretion (i) refuse or remove any content that, in MCD’s reasonable opinion, violates any MCD policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website & Mobile Application to any individual or entity for any reason, in MCD’s sole discretion and, by accepting these terms and conditions, You agree to release hold MCD harmless from any liability arising therefrom.
Responsibility of Website & Mobile Application Visitors. MCD has not reviewed, and cannot review, all of the material posted to the Website & Mobile Application, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website & Mobile Application, MCD does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website & Mobile Application may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website & Mobile Application may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. MCD disclaims any responsibility for any harm resulting from the use by visitors of the Website and/or Mobile Application, or from anything downloaded by those visitors of content there posted and, by accepting these terms and conditions, You agree to release and hold harmless MCD from any liability arising therefrom. MCD, however, will investigate any “flagged” posting within two business days.
Content Posted on Other Websites & Mobile Applications. We have not reviewed, and cannot review, all of the material, made available through the websites and webpages to which Mixsee links, and that link to Mixsee. MCD does not have any control over non-Mixsee websites and applications, and is not responsible for their contents or their use. By linking to a non-Mixsee website or appication, MCD does not represent or imply that it endorses the website or application. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. MCD disclaims any responsibility for any harm resulting from your use of non-Mixsee websites and applications and, by accepting these terms and conditions, You agree to release hold MCD harmless from any liability arising therefrom.
Copyright Infringement and DMCA Policy. As MCD asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Mixsee violates your copyright, you are encouraged to notify MCD in accordance with MCD’s Digital Millennium Copyright Act (“DMCA”) Policy. MCD will respond to all such written or electronic notices within five business days, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. MCD will terminate a visitor’s access to and use of the Website & Mobile Application if, under appropriate circumstances, and at MCD’s sole discretion, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of MCD or others. In the case of such termination, MCD will have no obligation to provide a refund of any amounts previously paid to MCD.
Intellectual Property. This Agreement does not transfer from MCD to You any MCD or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with MCD. MCD, Mixsee, the Mixsee logo, and all other trademarks, service marks, graphics and logos used in connection with Mixsee, or the Website & Mobile Application are trademarks or registered trademarks of MCD or MCD’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website & Mobile Application may be the trademarks of other third parties. Your use of the Website & Mobile Application grants you no right or license to reproduce or otherwise use any MCD or third-party trademarks.
Advertisements. MCD reserves the right to display advertisements on your guide unless you have purchased an Ad-free Upgrade or a VIP Services account.
Attribution. MCD reserves the right to display attribution links such as ‘guide at Mixsee,’ theme author, and font attribution in your guide footer or toolbar. Footer credits and the Mixsee toolbar may not be removed regardless of upgrades purchased.
Changes. MCD reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website & Mobile Application following the posting of any changes to this Agreement constitutes acceptance of those changes. MCD may also, in the future, offer new services and/or features through the Website & Mobile Application (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
Termination. MCD may terminate your access to all or any part of the Website & Mobile Application at any time, with or without cause, with or without notice, at MCD’s sole discretion, effective immediately. If you wish to terminate this Agreement or your Mixsee account (if you have one), you may simply discontinue using the Website and/or Mobile Application. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Disclaimer of Warranties. The Website & Mobile Application is provided “as is”. MCD and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither MCD nor its suppliers and licensors, makes any warranty that the Website & Mobile Application will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Website & Mobile Application at your own discretion and risk.
Limitation of Liability. In no event will MCD, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to MCD under this agreement during the twelve (12) month period prior to the cause of action. MCD shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
Indemnification. You agree to indemnify and hold harmless MCD, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website and/or Mobile Application, including but not limited to your violation of this Agreement.
Miscellaneous. This Agreement constitutes the entire agreement between MCD and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of MCD, or by the posting by MCD of a revised version. Except to the extent that applicable law, if any provides otherwise, this Agreement and any access to or use of the Website and/or Mobile Application will be governed by the laws of the state of New York, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in New York County, New York. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the American Arbitration Association (AAA) pursuant to its commercial arbitration rules on an expedited basis. The arbitration shall take place in New York, New York, in the English language and the arbitral decision may be enforced in any court. All claims against Mixsee or MCD in relation to this service must be resolved in accordance with this section. Those claims brought in opposition to this section shall be construed as having been improperly filed. In these cases, MCD may, in accordance to all applicable law, be entitled to claim attorney's fees for the adjudication of such claims. MCD shall be required to notify the user of any improperly file claim, in these instances. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; MCD may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
Granting of Rights. By agreeing to these Terms and Conditions, the user grants Mixsee and its affiliated entities (“Mixsee entities”) a non-exclusive, royalty-free, worldwide license in connection with the Mixsee website and application to: (i) use, copy, adapt, reformat, recompile, communicate by telecommunication, truncate, edit, and/or modify any part of the Information (“user information”) you provide for public performance, public display, and distribution, (ii) access, index, and cache the website(s) to which the user information links or any portion thereof, by any means, including web spiders and/or crawlers, (iii) create and display in connection with your user information copies of any text, images, graphics, audio, or video on the websites to which your user information links, and (iv) distribute your user information to third parties. None of the Mixsee entities will have any liability for your user information. A Mixsee entity may refuse, reject, cancel, or remove any user information at its discretion at any time. Your posts of user information may be subject to space availability, and the final decision as to user information relevancy is at our discretion. We do not guarantee that your user information will be placed in, or available through, any part of the Mixsee website or application, nor do we guarantee that your user information will appear in a particular position or rank.
Disclosure/Acknowledgement. This Terms and Condition Agreement was based upon a format and language originally produced by WordPress.com. MCD has made original amendments and additions to this Agreement beyond that of the WordPress.com model terms and conditions Agreement but would like to attribute the basis for this Agreement form to WordPress.com.