Last Updated: November 27th, 2023
MixerBox™ Service End-User License Agreement
Thank you for accessing the MixerBox™ ChatGPT related service (“Service”), as made available on your devices (“Device”) utilizing the services of OpenAI. The Service is owned and operated by MixerBox Inc. (“MixerBox™,” “we,” “our” or “us”).
The Service provides end-user visitors (“Visitors”) 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”) and (b) a means to register as a member (“Member”) through the Services; and together with the Service, and MixerBox™ Content, the “MixerBox™ Offerings”.
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.
1. Scope; Modification of Agreement. The Agreement constitutes the entire and only agreement between End-Users and MixerBox™ with respect to End-Users’ use of the MixerBox™ Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to our End-Users; 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 End-Users should review the Agreement prior to using any MixerBox™ Offerings. By an End-User’s continued use of the MixerBox™ Offerings, that End-User hereby agrees 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; Necessary Equipment; Wireless Charges. 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.
End-Users shall be responsible, at all times, for ensuring that they have an appropriate Device, Internet connection, wireless service plan and/or other equipment necessary to access and use the Service and other MixerBox™ Offerings. MixerBox™ does not guarantee that the Service and associated MixerBox™ Offerings can be accessed: (i) on all Devices; (ii) through all wireless service plans; and/or (iii) in all geographical areas. MixerBox™ does not guarantee the quality, speed or availability of your Device’s Internet connection. Standard messaging, data and wireless access fees may apply to your use of the Service and associated MixerBox™ Offerings. You are fully responsible for all such charges, and MixerBox™ has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
3. Installation/Uninstall of the Program.
Installation. MixerBox™ has made commercially reasonable efforts to provide End-Users with clear, concise and complete disclosure before End-Users download/install the program (“Program”) when you use ChatGPT or access/use the MixerBox™ Offerings, including a description of the primary functions of the Program. The Program requires End-User consent prior to installation.
Uninstall. The Program can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional "add/remove" programs function contained within your Device. Please be advised that in some instances, you may be required to restart your Device before all remnants of the Program are completely uninstalled and removed from your Device.
THE PROGRAM IS NOT SPYWARE OR ADWARE. THE PROGRAM WILL NOT DELIVER ADVERTISEMENTS TO YOUR DEVICE, ALTHOUGH YOU MAY BE SHOWN ADVERTISEMENTS WITHIN THE PROGRAM INTERFACE.
4. Registration; Account Rejection and/or Termination. In order to utilize certain of the MixerBox™ Offerings, End-Users may be required to submit a registration form (each, a “Form”) with information.
The information that End-Users must supply on the applicable Form may include, without limitation: (a) the End-User’s full name; (b) the End-User’s screen name; (c) the End-User’s e-mail address; (d) the End-User’s mailing address; (e) the End-User’s date of birth; (f) the End-User’s gender; and/or (g) any other information requested by MixerBox™ on the applicable Form (collectively, the “Registration Data”).
Each End-User agrees 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 an End-User’s Form and/or terminate an End-User’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 End-User is in any way in breach of the Agreement; (B) MixerBox™ believes that such End-User is engaged in any improper conduct in connection with the MixerBox™ Offerings; and/or (C) MixerBox™ believes that such End-User is, at any time, conducting any unauthorized commercial activity by and/or through the MixerBox™ Offerings.
As part of the registration process, End-Users will be provided with, or must select, a user name. If the user name that an End-User requests is not available, that End-User will be asked to supply another user name. If MixerBox™ provides an End-User with a user name, that End-User can change that user name, or the one that the End-User selected during registration, at any time through her/his Account settings. Each End-User 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 End-User shall be responsible for maintaining the confidentiality of her/his user name and Account. Each End-User 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 End-User, or any entity or person with access to that End-User’s user name and/or Account may be grounds for termination of that End-User’s Account, in MixerBox’s™ sole discretion, and that End-User 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 End-User 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”).
Basic Functionality. For purposes of the Agreement, the term “Service” 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 Service’s functionality. The Service enables End-Users to utilize the platform by and through their Devices. Each End-User acknowledges and agrees that access to, and the functionality of, the Service may be interrupted and limited, and may not be error free. Each End-User understands and agrees that MixerBox™ shall not be liable to any End-User or third-party for any claim in connection with such End-User’s use of, or inability to use, the Service.
Updates/Bug Fixes. MixerBox™ reserves the right (but is not obligated) to add additional features or functions to the existing Service, and to provide bug fixes, error corrections, patches, new releases or any other component not specified within this EULA, from time to time. When installed on an End-User’s Device, the Service periodically communicates with MixerBox™ servers. MixerBox™ may require the updating of the Service residing on an End-User’s Device when MixerBox™ releases a new version of the Service, or when MixerBox™ makes new features available. This update may occur automatically or upon prior notice to the End-User and may occur all at once or over multiple sessions, in MixerBox’s™ sole and absolute discretion. Each End-User understands that we may require that End-User’s review and acceptance of our then-current Agreement before that End-User will be permitted to use any subsequent versions of the Service. Each End-User acknowledges and agrees that MixerBox™ has no obligation to make any subsequent versions of the Service available to that End-User, 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 SERVICE ARE MADE AVAILABLE FOR USE AT EACH END-USER’S SOLE OPTION AND RISK. IF AN END-USER 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 END-USER’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 End-User a personal, non-exclusive, non-transferable, revocable and limited license to access and use the Service on Devices, where such Devices are owned or leased by such End-User. MixerBox™ may terminate the license set forth in this Section 5(b) and/or disable, remove or change the Service and/or any portion thereof in its sole discretion at any time, with or without notice, by remote updates or otherwise. 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 an End-User if that End-User fails to comply with any term or condition of the Agreement. Each End-User agrees upon expiration or termination of this license to immediately un-install the Program.
License/Usage Restrictions. THE SERVICE IS LICENSED TO END-USERS, NOT SOLD. END-USERS MAY NOT SUBLICENSE, ASSIGN, RESELL, SHARE, PLEDGE, RENT OR TRANSFER ANY OF THEIR RIGHTS UNDER THE AGREEMENT IN RELATION TO THE SERVICE OR ANY PORTION THEREOF. EXCEPT AS EXPRESSLY PERMITTED BY COPYRIGHT LAWS, NO COPYING, REDISTRIBUTION, DISPLAYING, PERFORMING, REPRODUCING, LICENSING, TRANSFERRING OR PUBLICATION OF THE SERVICE 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. END-USERS MAY NOT MODIFY, TRANSLATE, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR CREATE DERIVATIVE WORKS OF THE SERVICE OR OTHERWISE ATTEMPT TO: (i) DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE OR OTHERWISE CIRCUMVENT ANY PROTECTION MECHANISMS ASSOCIATED WITH THE SERVICE INCLUDING, WITHOUT LIMITATION, ANY SUCH MECHANISM USED TO RESTRICT OR CONTROL THE FUNCTIONALITY OF THE SERVICE; OR (ii) DERIVE THE SOURCE CODE OR THE UNDERLYING IDEAS, ALGORITHMS, STRUCTURE OR ORGANIZATION FORM OF THE SERVICE. END-USERS SHALL NOT USE THE SERVICE TO DEVELOP ANY PRODUCT AND/OR SERVICE THAT HAS THE SAME OR ANY SIMILAR FUNCTION AS THE SERVICE OR OTHER MIXERBOX™ OFFERINGS.
Export Restrictions. Each End-User agrees that the Service may not be transferred or exported into any other country, or used in any manner prohibited by U.S. or other applicable export laws and/or regulations.
(c) YouTube Products. MixerBox™ may, in its sole discretion, offer End-Users to access/use YouTube products through YouTube API Services. Each End-User agrees to use the MixerBox™ Offerings in accordance with YouTube's Terms of Service (https://www.youtube.com/t/terms).
(d) 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.
(e) MixerBox™ Content. Subject to the terms and conditions of the Agreement, End-Users that possess the requisite technology 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. End-Users 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. End-Users agree that MixerBox™ shall have no obligation and incur no liability to such End-Users in connection with any MixerBox™ Content. End-Users may find certain MixerBox™ Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the 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.
(f) Your Content. Some of the Service allow you to upload, submit, store or send certain text or images relating to the MixerBox™ Offerings (collectively, “Your Content”), including user comments. You understand that we do not guarantee any confidentiality with respect to 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 EULA. The above licenses granted by you in user comments you submit 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.
We reserve the right in our sole discretion to remove any of Your Content without prior notice.
(g) Paid Service. We enable access to certain premium features or content in exchange for one-time or recurring fees (each a "Paid Service"). Please review this section carefully. If you do not agree to the terms of this section, please do not use the Paid Service.
License of Paid Service
After completing a transaction or paying the applicable fees for a Paid Service, you may access and use that Paid Service, for your personal and non-commercial use only. Your license to the Paid Services (including any content offered through the Paid Services) is non-exclusive and all rights, title and interest in the Paid Services not expressly granted to you in the Agreement are reserved by MixerBox™ and its licensors.
We accept payment via the payment method indicated prior to your purchase. You must have a valid, accepted payment method on file in order to purchase Paid Services. You agree to pay for any Paid Service that you order. We will charge your payment method for the price listed for the relevant Paid Service along with any additional amounts relating to applicable taxes, bank fees and currency fluctuations. If you purchase any automatically renewing Paid Service subscription, you agree that we will charge the payment method on file on the first day of each billing period for the subscription, and if the payment method on file becomes invalid due to an expired credit card or other reason, and we are unable to charge you on the next billing period, you may not be able to access the applicable Paid Service until you update your payment method. If you fail to update your payment method within a reasonable period, we may cancel your subscription. In some cases, you may transact with a third-party or affiliate platform when you purchase a Paid Service. In these cases, such platform will charge your payment method and be responsible for managing any issues with your payment, including refunds.
We may offer free trials for a Paid Service to subscribers from time to time. If you purchase a subscription to a Paid Service that includes a trial, you will receive access to that Paid Service for the duration of the trial period. At the end of the trial period, you will be automatically charged the price of the subscription and will continue to be charged until you cancel your subscription. To avoid any charges, you must cancel your subscription before the end of the trial period.
Cancellation of Subscriptions
If you purchase a subscription to a Paid Service that automatically renews, you may cancel the subscription any time before the end of the current billing period. The cancellation will take effect at the end of that billing period. You will retain access to the Paid Service from the time you cancel until the start of the next billing period and, unless otherwise indicated, you will not receive a refund or credit for any remaining days in your current billing period.
Changes to Pricing
Prices for Paid Services may change from time to time. We do not provide price protection or refunds in the event of a price reduction or promotional offering. Any changes to pricing for Paid Services with recurring payments will only apply following reasonable notice to you. If we notify you of a price change for a Paid Service with a recurring payment and you want to continue that Paid Service at the new price, you may Purchase the Paid Service for the next subscription period in which the new price applies.
6. Representations and Warranties. Each End-User hereby represents and warrants to MixerBox™ as follows: (a) the Agreement constitutes such End-User’s legal, valid and binding obligation which is fully enforceable against such End-User in accordance with its terms; (b) such End-User understands and agrees that such End-User has independently evaluated the desirability of utilizing the MixerBox™ Offerings and that such End-User has not relied on any representation and/or warranty other than those set forth in the Agreement; and (c) such End-User’s performance under the Agreement and such End-User’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 End-User 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) End-User’s breach of the Agreement and/or any representation or warranty contained herein; (b) any allegation that End-User has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third-party; and/or (c) End-User’s unauthorized and/or improper use of the MixerBox™ Offerings.
8. License Grant. Each End-User 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. Unless otherwise expressly authorized by MixerBox™ in writing in each instance, End-Users may only use the MixerBox™ Offerings for their own personal, non-commercial use. No part of the MixerBox™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No End-User 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 End-User 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 End-User or other third-party may create any “derivative works” by altering any aspect of the MixerBox™ Offerings. No End-User or other third-party may use the MixerBox™ Offerings in conjunction with any other third-party content. No End-User or other third-party may exploit any aspect of the MixerBox™ Offerings for any commercial purposes not expressly permitted by MixerBox™. Each End-User further agrees to indemnify and hold MixerBox™ harmless for that End-User’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 same, are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The copying, redistribution or publication by any End-User or other third-party of any part of the MixerBox™ Offerings is strictly prohibited. No End-User 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, including those associated with the YouTube products, 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. Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the MixerBox™ Offerings is a violation of criminal and civil law and MixerBox™ will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
11. Disclaimer of Warranties. THE MIXERBOX™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO END-USERS 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 END-USER’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 END-USER FROM MIXERBOX™ OR OTHERWISE THROUGH OR FROM THE MIXERBOX™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
12. Limitation of Liability. EACH END-USER EXPRESSLY UNDERSTANDS AND AGREES THAT MIXERBOX™ SHALL NOT BE LIABLE TO THAT END-USER 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 SERVICE, 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 END-USERS AND/OR THIRD PARTIES; (D) ANY MATTER RELATING TO ANY END-USER CONTENT, PERKS AND/OR CAMPAIGNS; (E) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY END-USER’S REGISTRATION DATA; (F) END-USER’S FAILURE TO REALIZE ANY ECONOMIC BENEFIT; AND (G) 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 END-USER 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 END-USER 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 END-USER AND MIXERBOX™. ACCESS TO THE MIXERBOX™ OFFERINGS WOULD NOT BE PROVIDED TO ANY END-USERS 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.
13. Third-party Websites. The MixerBox™ Offerings contain links to other websites on the Internet that are owned and operated by third parties. MixerBox™ does not control the information, products or services available on or through these third-party websites. The inclusion of any link does not imply endorsement by MixerBox™ of the applicable website or any association with the website’s operators. Because MixerBox™ has no control over such websites or resources, each End-User agrees that MixerBox™ is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any End-User’s data privacy by third parties. Each End-User further agrees that MixerBox™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such site or any such dealings.
14. 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.
16. Dispute Resolution Provisions. To the maximum extent permitted by law, the Agreement shall be governed by and construed in accordance with the laws of the State of California, USA (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 End-User 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 End-Users with a final written settlement offer after receiving such End-User’s Initial Dispute Notice (“Final Settlement Offer”). If we provide a petitioning End-User with a Final Settlement Offer and that End-User does not accept it, or we cannot otherwise satisfactorily resolve that End-User’s dispute and that End-User wishes to proceed, that End-User must submit its dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties, in that End-User’s county of residence, by filing a separate Demand for Arbitration, which is available Here. If the arbitrator awards an End-User 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 End-User retained an attorney to represent it in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that such End-User’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 End-User unless the arbitrator determines that such End-User’s claim was frivolous.
To the extent permitted by law, each End-User 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 End-User agrees to the entry of injunctive relief to stop such a lawsuit or to remove it as a participant in the suit. Each End-User agrees to pay the attorney’s fees and court costs that MixerBox™ incurs in seeking such relief. This provision preventing End-Users from bringing, joining or participating in class action lawsuits: (A) does not constitute a waiver of any End-User’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 End-User 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.
17. 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.
18. Contact Us. If any End-User has any questions about the Agreement, MixerBox™ Offerings or the practices of MixerBox™, that End-User can email us as at: email@example.com. If any End-User 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.