Mixercast - Create. Mix. Network

Mixercast Terms Of Use

1. ACCEPTANCE OF TERMS

The services available at Mixercast.com and all linked pages ("Site" or "Mixercast") owned or operated by Mixercast, Inc. ("Mixercast") may be accessed only by you and only if you fully comply with the Terms of Use described below ("Terms of Use").

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES (AS DEFINED BELOW). BY ACCESSING THIS SITE OR USING ANY PART OF THE SITE OR ANY CONTENT OR SERVICES (EACH AS DEFINED BELOW), YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS HEREUNDER, THEN YOU MAY NOT ACCESS THE SITE OR USE THE CONTENT OR ANY SERVICES. MIXERCAST'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS AND CONDITIONS, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY MIXERCAST, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

ELIGIBILITY

To register and receive Services you must be at least 18 years old. If you are not 18 years old but you are at least 13 years old, you may still receive Services, but only if your account was created and registered by your parent or guardian. Further, you may only become a registered user if you live in a country and political division (e.g., state or province) that permits membership. If you do not so qualify, do not attempt to register for or use the Services. This Agreement will be void and without effect, and you will not be entitled to any Services, if you do not satisfy these age and jurisdiction requirements.

MODIFICATIONS OF TERMS OF USE

Mixercast reserves the right, at its sole discretion, to modify or replace the Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, Mixercast will notify you via email. What constitutes a "material change" will be determined at Mixercast's sole discretion, in good faith and using common sense and reasonable judgment. You shall be responsible for regularly reviewing these terms and becoming familiar with any such modifications. Your use of the Services following any modification (and, if material, the applicable notification) constitutes your acceptance of the terms and conditions of the Terms of Use as modified. There may be additional terms and conditions if you use affiliate services, other Mixercast services or products, or third-party software and/or services.

2. DESCRIPTION OF SERVICE

Subject to full compliance with the Terms of Use, Mixercast shall provide you certain services, as described more fully on the Site ("Services"). Services may include, but not be limited to, the storage, management, sharing and linking of personal media and document files (including, but not limited to text, user comments, messages, information, data, graphics, photographs, images, illustrations, software, audio and video, also collectively known as the "Content"). Mixercast may change, suspend or discontinue the Services or any Content for any reason, at any time, including the availability of any feature or part of the Content. Mixercast may also impose limits on the Services or restrict your access to parts or all of the Services without notice or liability.

3. YOUR REGISTRATION OBLIGATIONS

As a condition to using Services, you are required to register with Mixercast and provide a valid email address, select a password and personalized site name. You shall provide Mixercast with accurate, complete, and updated registration information. You may not (i) select or use as a personalized site name a name of another person with the intent to impersonate that person; (ii) use as a personalized site name a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a personalized site name a name that is otherwise offensive, vulgar or obscene. Mixercast reserves the right to refuse registration of, or cancel a personalized site name in its sole discretion. You shall be responsible for maintaining the confidentiality of your Mixercast password.

4. USER CONDUCT

As a condition of use, you promise not to use the Services for any purpose that is unlawful or prohibited by these Terms of Use, or any other purpose not reasonably intended by Mixercast.

By way of example, and not as a limitation, you agree not to use the Services:

1. to abuse, harass, threaten, impersonate or intimidate any person;
2. to access, download, reproduce, display, perform or distribute any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or that is libelous, defamatory, obscene, pornographic, abusive, or offensive;
3. to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Mixercast user;
4. to create or submit unwanted email ("Spam") to any other Mixercast user or any URL;
5. to violate any laws in your jurisdiction (including but not limited to copyright laws);
6. after Mixercast has refused registration of, or canceled your account, whether by attempting to register using a different email address, personalized site name or otherwise circumventing the account registration process; or
7. for the benefit of any third party (which shall include, without limitation, allowing more than one person to use a Mixercast account when not expressly authorized by Mixercast).

Additionally, you agree that you will not: (i) take any action that imposes, or may impose in Mixercast's sole discretion an unreasonable or disproportionately large load on Mixercast's infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (iii) bypass any measures Mixercast may use to prevent or restrict access to the Service.

You may not harvest or collect information about other members or users of the Services. The use of any information learned through the Services or while in the Site is limited to the express purposes set forth in these Terms of Use; all other uses, including, without limitation, sending unsolicited bulk e-mail, are strictly prohibited.

You understand and agree that Mixercast and its representatives may monitor your use of the Service and the Content you submit, post and display through the Service. Mixercast may remove any Content and Mixercast accounts at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all. To report Terms of Use abuse, please email: abuse@mixercast.com.

5. PROPRIETARY RIGHTS

Digital Millennium Copyright Act Mixercast respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow Mixercast's Notice and Procedure for Making Claims of Copyright Infringement, available at http://mixercast.com/dmca.

Moreover, Mixercast may take any action it deems appropriate (in its sole and exclusive discretion), including, without limitation, removing, terminating or suspending any Content provided by you or any third party, if Mixercast believes for any reason that you or any third party possesses insufficient rights in the Content to permit full use or access through the Site.

Mixercast's Rights As between Mixercast and you, Mixercast and its affiliates and licensors own and retain all rights in the Service, which contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Mixercast and except to the limited extent expressly prohibited by applicable law, you may not (nor permit others to) reverse engineer, copy, modify, publish, transmit, distribute, perform, display or sell any of Mixercast's proprietary information.

Your Rights It is your responsibility to ensure that you obtain all consents, authorizations and clearances in any Content owned or controlled by third parties that you access or communicate to others in connection with the Service. Any copying, downloading, burning or distribution capabilities with respect to the Content shall not constitute a grant or waiver of any rights of the copyright owners of any Content. The availability of any Content does not transfer to you any commercial or promotional use rights in the Content.

Mixercast claims no ownership or control over any Content submitted, posted or displayed by you on or through the Service. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through the Service, you grant Mixercast a worldwide, non-exclusive, royalty-free license to reproduce, adapt and publish such Content on the Service for the purpose of displaying, distributing and promoting the Service or any other Mixercast services. This license terminates when such Content is deleted from the Service.

6. MIXERCAST PRIVACY POLICY

Mixercast's current privacy policy is available at http://mixercast.com/privacy (the "Privacy Policy"), which is incorporated by this reference.

7. INDEMNITY

You will indemnify and hold harmless Mixercast, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damages, expenses, and costs (including reasonable attorneys' fees) arising from (i) any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services, or violation of the Terms of Use, or (ii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Mixercast will provide you with written notice of such claims or demands.

8. WARRANTY DISCLAIMERS

Third Party Content. Much of the Content displayed in connection with the Service is developed by people over whom Mixercast exercises no control. Accordingly, the Service may include (or direct you to sites containing) Content that some people find objectionable, inappropriate, or offensive. Mixercast cannot guarantee that your use of the Service will not expose you to unintended or objectionable Content and Mixercast assumes no responsibility for what effects the Content may have on you, how you may interpret or use the Content, or what actions you may take as a result of having been exposed to the Content. You hereby release Mixercast from all liability for you having acquired or not acquired Content through the Service. Mixercast makes no representations concerning any content contained in or accessed through the Service, and Mixercast will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.

General Disclaimer. THE SERVICE, CONTENT, AND SITE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

9. LINKS

The Services may provide, or third parties may provide, links to other World Wide Web sites, virtual worlds, or other resources. Because Mixercast has no control over such sites and resources, you acknowledge and agree that Mixercast is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Mixercast shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL MIXERCAST OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SITE, THE SERVICES OR ANY CONTENT (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) [TEN DOLLARS ($10)] U.S. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

YOU AGREE THAT MIXERCAST HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY CONTENT MAINTAINED OR POSTED BY OR THROUGH THE SERVICE.

11. TERMINATION

Mixercast offers the Mixercast service on a free subscription basis. Mixercast may terminate or suspend any and all Services and your Mixercast account immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms of Use.

Mixercast also reserves the right to terminate your account for any or no reason upon one day notice to you.

Upon termination of your account, your right to use the Services will immediately cease. Mixercast's proprietary rights, disclaimer of warranties, indemnities, limitations of liability and miscellaneous provisions shall survive any such termination.

12. MISCELLANEOUS

No agency, partnership, joint venture, or employment is created as a result of the Terms of Use and you do not have any authority of any kind to bind Mixercast in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Mixercast shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Mixercast's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of the Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Use shall otherwise remain in full force and effect and enforceable. The Terms of Use is not assignable, transferable or sublicensable by you except with Mixercast's prior written consent. Mixercast may transfer, assign or delegate the Terms of Use and its rights and obligations without consent. The Terms of Use shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction of the Superior Court of San Francisco County and the United States District Court for the Northern District of California. Notwithstanding the foregoing sentence, (but without limiting, and you hereby acknowledge and agree to, Mixercast's right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising from or relating to these Terms of Use (including the enforceability of this arbitration provision) shall be referred to and administered by a single arbitrator in accordance with the Judicial Arbitration and Mediation Service, Inc. ("JAMS") Streamlined Arbitration Rules and Procedures. The arbitrator shall be affiliated with JAMS and selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in San Francisco, California using the English language and pursuant to the rules of (and administered by) JAMS. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys' fees. Both parties agree that the Terms of Use is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Terms of Use and that all modifications, except as otherwise provided herein, must be in a writing signed by both parties.