MixerBox Terms of Service for Podcasters
Last Updated: January 17th, 2022
MixerBox™ Platform for Podcasters
Terms of Service
Thank you for accessing this service for podcasters (the “Service”) provided by MixerBox™ Platform (the “Platform”). The Service is owned and operated by MixerBox Inc. (“MixerBox™,” “we,” “our” or “us”).
The Service provides podcasters (“Podcasters”, “you” or “your”) with: (a) access to certain text, images, video, audio and other content and information relating to the MixerBox™ Offerings (as defined below) (collectively, “MixerBox™ Content”), (b) a means to register as a member (“Member”, or an “Admin Account”) of the Platform, either through the Service or through your applicable Facebook® account and (c) a means to post, upload or otherwise contribute content (“Your Content”) through the Service; and together with the Service, and MixerBox™ Content, the “MixerBox™ Offerings”.
The following Terms of Service (the “Terms”) is inclusive of the MixerBox™ Service Privacy Policy (“Privacy Policy”) and any and all other applicable MixerBox™ guidelines, operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, and together with this Terms, the “Agreement”). By using and/or accessing the MixerBox™ Offerings, you agree to comply with and be bound by the Agreement in its entirety.
PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO USE THE MIXERBOX™ OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Please be advised that MixerBox™ is not in any way affiliated with Facebook and the MixerBox™ Offerings are not endorsed, administered or sponsored by Facebook.
1. Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between you and MixerBox™ with respect to your use of the MixerBox™ Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to the same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification. The latest Agreement will be posted by and through the Service, and you should review the Agreement prior to using any MixerBox™ Offerings. By your continued use of the MixerBox™ Offerings, you hereby agree to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, which shall be governed by the Dispute Resolution Provisions then in effect at the time of the subject dispute).
2. Requirements. The MixerBox™ Offerings are not intended for use by: (a) individuals who are unable to enter into legally binding contracts under applicable law; and/or (b) individuals under thirteen (13) years of age (or the applicable age of majority, if greater than thirteen (13) years of age). If you are under thirteen (13) years of age (or the applicable age of majority if greater than thirteen (13) years of age) and/or if you are unable to enter into legally binding contracts under applicable law, you do not have permission to use and/or access the MixerBox™ Offerings.
If you are using the MixerBox™ Offerings on behalf of a company or organizationorganisation, you represent that you have authority to act on behalf of that entity, and that such entity accepts the Agreement.
3. Limitation of Service. MixerBox™ has made commercially reasonable efforts to keep the Service operational. However, MixerBox™ does not guarantee that the Service and associated MixerBox™ Offerings will be available continuously on a 24 x 7 x 365 basis. MixerBox™ reserves the right, at any time, to modify or discontinue functions and features of the Service and associated MixerBox™ Offerings, with or without notice, without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Service and associated MixerBox™ Offerings or any function or feature thereof. You understand, agree, and accept that MixerBox™ has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service. You shall preserve backup copies of Your Content. MixerBox™ is not liable for damage to, deletion of, or failure to store any of MixerBox™ Content or Your Content.
We may provide you with some information through your Admin Account, including but not limited to, the likes or comments from your listeners. MixerBox™ does not represent or warrant that such information and other MixerBox™ Content posted by and/or through the MixerBox™ Offerings is accurate, complete, up-to-date or appropriate.
4. Registration; Account Rejection and/or Termination. In order to utilize certain of the MixerBox™ Offerings, you may be required to submit a registration form (each, a “Form”) with information (“Service Registration Data”) that varies depending on whether you are attempting to register via your Facebook® account.
The information that you must supply on the applicable Form may include, without limitation: (a) your full name; (b) your screen name; (c) your email address; (d) your mailing address; (e) your date of birth; (f) your gender; and/or (g) any other information requested by MixerBox™ on the applicable Form (collectively, “MixerBox Registration Data''). Where you access certain of the MixerBox™ Offerings using your Facebook® account, MixerBox™ may collect some or all of the following (depending on your Facebook® account settings and the discretion of Facebook®): (i) your email address; (ii) the information listed in the “About Me” section of your Facebook® account; (iii) the “interests'' associated with your Facebook® account; (iv) your Facebook® account ID and the “likes” associated with your Facebook® account; (v) your Facebook® profile picture; and (vi) any other information collected via the Facebook® account interface, depending on your Facebook® account settings (collectively, “Facebook® Registration Data,” and together with the Service Registration Data and MixerBox Registration Data, the “Registration Data”).
You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion. MixerBox™ may reject a Podcaster’s Form, reject a Podcaster’s attempted Facebook® registration and/or terminate a Podcaster’s MixerBox™ Offerings account (“Account”) at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (A) MixerBox™ believes that such Podcaster is in any way in breach of the Agreement; (B) MixerBox™ believes that such Podcaster is engaged in any improper conduct in connection with the MixerBox™ Offerings; and/or (C) MixerBox™ believes that such Podcaster is, at any time, conducting any unauthorized improper activity by and/or through the MixerBox™ Offerings.
Each Podcaster agrees to notify MixerBox™ of any known or suspected unauthorized use(s) of her/his Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his user name. Each Podcaster shall be responsible for maintaining the confidentiality of her/his user name and Account. Each Podcaster agrees to accept responsibility for all activities that occur through use of her/his user name and Account. Any fraudulent, abusive or otherwise illegal activity engaged in by any Podcaster, or any entity or person with access to that Podcaster’s user name and/or Account may be grounds for termination of that Podcaster’s Account, in MixerBox’s™ sole discretion, and that Podcaster may be reported to appropriate law enforcement agencies.
5. The MixerBox™ Offerings; Legal Compliance.
(a) Compliance with Applicable Law. By accessing and using the MixerBox™ Offerings, each Podcaster agrees to use the MixerBox™ Offerings in accordance with all applicable MixerBox™ guidelines, as well as all applicable local, national and international laws (collectively, “Applicable Law”).
(b) Service.
Basic Functionality. For purposes of the Agreement, the term “Platform” includes all MixerBox™ and third-party software applications, files, associated media, printed materials and/or electronic documentation that may be used in connection with the Platform’s functionality. Each Podcaster acknowledges and agrees that access to, and the functionality of, the Platform may be interrupted and limited, and may not be error free. Each Podcaster understands and agrees that MixerBox™ shall not be liable to any Podcaster or third-party for any claim in connection with such Podcaster’s use of, or inability to use, the Platform.
Updates/Bug Fixes. MixerBox™ reserves the right (but is not obligated) to add additional features or functions to the existing Platform, and to provide bug fixes, error corrections, patches, new releases or any other component not specified within this Terms, from time to time. MixerBox™ may require the updating of the Platform when MixerBox™ makes new features available. This update may occur automatically or upon prior notice to the Podcaster and may occur all at once or over multiple sessions, in MixerBox’s™ sole and absolute discretion. Each Podcaster understands that we may require that Podcaster’s review and acceptance of our then-current Agreement before that Podcaster will be permitted to use any subsequent versions of the Platform. Each Podcaster acknowledges and agrees that MixerBox™ has no obligation to make any subsequent versions of the Platform available to that Podcaster, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement.
Third-party Software. ANY THIRD-PARTY SOFTWARE, AS WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE PLATFORM ARE MADE AVAILABLE FOR USE AT PODCASTER’S SOLE OPTION AND RISK. IF A PODCASTER CHOOSES TO USE SUCH THIRD-PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY'S LICENSING AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. MIXERBOX™ IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY PODCASTER’S USE OF, OR INABILITY TO USE, THIRD-PARTY SOFTWARE.
License Grant/Termination. Subject to the terms and conditions of the Agreement, MixerBox™ hereby grants to each Podcaster a personal, non-exclusive, non-transferable, revocable and limited license to access and use the Platform. MixerBox™ may terminate the license set forth in this Section 5(b) in its sole discretion at any time, with or without notice. The license set forth in this Section 5(b) shall be in effect unless and until this license is terminated by MixerBox™. In addition, this license will terminate immediately with respect to a Podcaster if that Podcaster fails to comply with any term or condition of the Agreement. Each Podcaster agrees upon expiration or termination of this license to immediately stop using the Platform.
License/Usage Restrictions. THE PLATFORM IS LICENSED TO PODCASTERS, NOT SOLD. PODCASTERS MAY NOT SUBLICENSE, ASSIGN, RESELL, SHARE, PLEDGE, RENT OR TRANSFER ANY OF THEIR RIGHTS UNDER THE AGREEMENT IN RELATION TO THE PLATFORM OR ANY PORTION THEREOF. EXCEPT AS EXPRESSLY PERMITTED BY COPYRIGHT LAWS, NO COPYING, REDISTRIBUTION, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING OR PUBLICATION OF THE PLATFORM IS PERMITTED WITHOUT THE EXPRESS PERMISSION OF MIXERBOX™, WHICH CONSENT SHALL BE AT MIXERBOX’S™ SOLE AND ABSOLUTE DISCRETION. ANY SUCH COPY THAT IS MADE IS SUBJECT TO THE PROVISIONS OF THE AGREEMENT, AND ALL TITLES, TRADEMARKS, COPYRIGHT NOTICES AND OTHER LEGENDS SHALL BE REPRODUCED ON SUCH COPY. PODCASTERS MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE PLATFORM OR OTHERWISE ATTEMPT TO: (i) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY PROTECTION MECHANISMS ASSOCIATED WITH THE PLATFORM INCLUDING, WITHOUT LIMITATION, ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE PLATFORM; OR (ii) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE PLATFORM.
(c) General Disclaimers. ALL DETERMINATIONS OF MIXERBOX™ WITH RESPECT TO THE MIXERBOX OFFERINGS WILL BE MADE IN MIXERBOX’S™ SOLE AND ABSOLUTE DISCRETION, AND WILL BE FINAL AND BINDING ON YOU. YOU UNDERSTAND AND AGREE THAT MIXERBOX™ IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER WHATSOEVER FOR YOUR INABILITY TO ACCESS/USE MIXERBOX™ OFFERINGS. MIXERBOX™ IS NOT RESPONSIBLE FOR ATTEMPTED ACCESS/USE THAT ARE LOST, LATE, ILLEGIBLE, MISDIRECTED, DAMAGED, INCOMPLETE OR INCORRECT, OR FOR YOUR FAILURE, AT ANY TIME, TO THE MIXERBOX™ OFFERINGS.
(d) MixerBox™ Content. Subject to the terms and conditions of the Agreement, Podcasters shall have the opportunity to view, download and/or interact with all or some of the MixerBox™ Content made available by and through the Service and/or other MixerBox™ Offerings. The MixerBox™ Content is compiled, distributed and displayed by MixerBox™, as well as third-party content providers, such as advertisers (collectively, “Third-Party Providers”). MixerBox™ does not control the MixerBox™ Content provided by Third-Party Providers that is made available by and through the MixerBox™ Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness, safety and/or usefulness of such MixerBox™ Content. The MixerBox™ Content should not necessarily be relied upon. MixerBox™ does not represent or warrant that the MixerBox™ Content and other information posted by and/or through the MixerBox™ Offerings is accurate, complete, up-to-date or appropriate. Podcasters understand and agree that MixerBox™ will not be responsible for, and MixerBox™ undertakes no responsibility to monitor or otherwise police, MixerBox™ Content provided by Third-Party Providers. Podcasters agree that MixerBox™ shall have no obligation and incur no liability to such Podcasters in connection with any MixerBox™ Content. MixerBox™ reserves the right, at any time in its sole discretion, for any reason or no reason, to delete or move any MixerBox™ Content, in whole or in part, with or without notice. A copyright owner or an agent authorized to act on the owner’s behalf may submit a copyright complaint in case any copyright-protected work was posted in any MixerBox™ Content made available by and through the Service and/or other MixerBox™ Offerings, following the instructions set forth in Section 5(e). Please note that filing a complaint will not guarantee its removal. MixerBox™ will only remove MixerBox™ Content if MixerBox™ believes the measure is necessary, in its sole discretion.
(e) Procedure for Making Claim of Copyright Infringement. A copyright owner or an agent authorized to act on the owner’s behalf may submit a copyright complaint following the instructions set forth herewith in case any copyright-protected work was posted in any MixerBox™ Content, in accordance with the provisions of the Digital Millennium Copyright Act, to our Designated Agent, who can be reached as follows:
By mail:
DMCA Designated Agent
MixerBox Inc.
530 Lytton Ave, 2nd Floor #210,
Palo Alto, CA 94301
By Email: dmca-agent@mixerbox.com.
The Notification must be a written communication that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the 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 MixerBox™ to locate the material.
(iv) Information reasonably sufficient to permit MixerBox™ to contact the complaining party, such as an address, telephone number, and, if available, an email address.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process.
(f) Your Content.
You shall be solely responsible for Your Content and the consequences of submitting and publishing Your Content on the MixerBox™ Offerings. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Your Content; and you license to us all patent, trademark, trade secret, copyright or other proprietary rights in and to such Your Content for publication on the MixerBox™ Offerings.
By submitting Your Content to the MixerBox™ Offerings, you hereby grant us a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform Your Content in connection with the MixerBox™ Offerings, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the MixerBox™ Offerings a non-exclusive license to access Your Content through the MixerBox™ Offerings, and to use, reproduce, distribute, display and perform such Your Content as permitted through the functionality of the MixerBox™ Offerings and under this Terms. The above licenses granted by you are perpetual and irrevocable.
You further agree that Your Content will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein.
You further agree that you will not submit any Your Content or other material that is contrary to applicable local, national, and international laws and regulations.
We reserve the right in our sole discretion to remove any of Your Content without prior notice.
6. Representations and Warranties. Each Podcaster hereby represents and warrants to MixerBox™ as follows: (a) the Agreement constitutes such Podcaster’s legal, valid and binding obligation which is fully enforceable against such Podcaster in accordance with its terms; (b) such Podcaster understands and agrees that such Podcaster has independently evaluated the desirability of utilizing the MixerBox™ Offerings and that such Podcaster has not relied on any representation and/or warranty other than those set forth in the Agreement; and (c) such Podcaster’s performance under the Agreement and such Podcaster’s use of the MixerBox™ Offerings will not: (i) violate any Applicable Law; and/or (ii) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
7. Indemnification. Each Podcaster agrees to indemnify, defend and hold MixerBox™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, contractors, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) Podcaster’s breach of the Agreement and/or any representation or warranty contained herein; (b) any allegation that Podcaster has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third-party; and/or (c) Podcaster’s unauthorized and/or improper use of the MixerBox™ Offerings.
8. License Grant. Each Podcaster is granted a non-exclusive, non-transferable, revocable and limited license to access and use the MixerBox™ Offerings. MixerBox™ may terminate this license at any time for any reason. No part of the MixerBox™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No Podcaster or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the MixerBox™ Offerings except as expressly permitted by MixerBox™. No Podcaster or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the MixerBox™ Offerings, or any portion thereof. No Podcaster or other third-party may create any “derivative works” by altering any aspect of the MixerBox™ Offerings. No Podcaster or other third-party may use the MixerBox™ Offerings in conjunction with any other third-party content. No Podcaster or other third-party may exploit any aspect of the MixerBox™ Offerings for any commercial purposes not expressly permitted by MixerBox™. Each Podcaster further agrees to indemnify and hold MixerBox™ harmless for that Podcaster’s failure to comply with this Section 8. MixerBox™ reserves any rights not explicitly granted in the Agreement.
9. Proprietary Rights. The MixerBox™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to the same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. No Podcaster or other third-party acquires ownership rights in or to any content, document, software, services or other materials viewed by or through the MixerBox™ Offerings. The posting of information or material by and through the MixerBox™ Offerings does not constitute a waiver of any right in or to such information and/or materials. The “MixerBox” name and logo are trademarks of MixerBox. All other trademarks are the property of their respective owners. The use of any trademark without the applicable trademark owner's express written consent is strictly prohibited.
10. Disclaimer of Warranties. THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO PODCASTERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, MIXERBOX™ MAKES NO WARRANTY THAT THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL MEET ANY PODCASTER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY ECONOMIC BENEFIT; AND/OR (E) WILL BE ACCURATE OR RELIABLE. THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MIXERBOX™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET AND/OR MOBILE CONNECTION ASSOCIATED WITH THE MIXERBOX™ OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY PODCASTER FROM MIXERBOX™ OR OTHERWISE THROUGH OR FROM THE MIXERBOX™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
11. Limitation of Liability. EACH PODCASTER EXPRESSLY UNDERSTANDS AND AGREES THAT MIXERBOX™ SHALL NOT BE LIABLE TO THAT PODCASTER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MIXERBOX™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE PLATFORM, THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE MIXERBOX™ OFFERINGS; (C) ANY DISPUTE BETWEEN ANY PODCASTERS AND/OR THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY PODCASTER’S REGISTRATION DATA; AND (E) ANY OTHER MATTER RELATING TO THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH PODCASTER HEREBY RELEASES MIXERBOX™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY PODCASTER OR MIXERBOX™ MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH PODCASTER AND MIXERBOX™. ACCESS TO THE MIXERBOX™ OFFERINGS WOULD NOT BE PROVIDED TO ANY PODCASTERS WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF MIXERBOX™ SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Editing, Deleting and Modification. We reserve the right in our sole discretion to edit and/or delete any documents, information or other content appearing by and/or through the Service and/or other MixerBox™ Offerings.
13. Registration Data and other Podcaster Information. All material submitted by Podcasters through or in association with the MixerBox™ Offerings including, without limitation, the Registration Data, shall be subject to the Privacy Policy, as shown below.
14. Dispute Resolution Provisions. To the extent permitted by law, the Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of law principles). Should a dispute arise concerning the MixerBox™ Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) each Podcaster agrees to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found Here. We may choose to provide petitioning Podcasters with a final written settlement offer after receiving such Podcaster’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning Podcaster with a Final Settlement Offer and that Podcaster does not accept it, or we cannot otherwise satisfactorily resolve that Podcaster’s dispute and that Podcaster wishes to proceed, that Podcaster must submit its dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties by filing a separate Demand for Arbitration, which is available Here. If the arbitrator awards a Podcaster relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if that Podcaster retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such Podcaster’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from any Podcaster unless the arbitrator determines that such Podcaster’s claim was frivolous.
To the extent permitted by law, each Podcaster agrees that it will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that it may have against MixerBox™ and/or its employees, officers, directors, members, representatives and/or assigns. Each Podcaster agrees to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Each Podcaster agrees to pay the attorney’s fees and court costs that MixerBox™ incurs in seeking such relief. This provision prevents Podcasters from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any Podcaster’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. Any Podcaster may opt-out of these dispute resolution provisions by providing written notice of her/his decision within thirty (30) days of the date that it first accesses the Service.
15. Miscellaneous. To the extent that anything in or associated with the MixerBox™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. MixerBox’s™ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. MixerBox™ may assign its rights and obligations under the Agreement, in whole or in part, to any party at any time without notice to you. The Agreement may not, however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
16. Contact Us. If any Podcaster has any questions about the Agreement, MixerBox™ Offerings or the practices of MixerBox™, that Podcaster can email us as at: creators@mixerbox.com. If any Podcaster prefers to mail us, please send us mail to: 555 Bryant St., Suite 218, Palo Alto, California 94301; provided, however, that there may be delays in responding to inquiries/notices sent via mail.
