Terms & Conditions
THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
BY VISITING THE APPLICATION AND USING ITS SERVICES, YOU AGREE TO THESE TERMS; IF YOU DO NOT AGREE, DO NOT USE THE APPLICATION OR ANY OTHER VIDCARD SERVICES.
Description of Service: VidCard is an online platform to create, send, distribute and receive custom digital messages and videos (collectively “Messages”). Our products and services (“Services”) provide hosts with online tools to create and distribute Messages and provide guests with ability to communicate their response. Our Service may also integrate or otherwise link to products and services offered by third parties. Such third party products and services may be subject to the additional and/or alternate terms and conditions and privacy policies of the third party providers.
Age: Thinkmixer takes a child’s privacy very seriously. If you are under 18 years of age, you may only use the Service, with or without registering, only with the approval of your parent or guardian.
Your registration obligations: You must register with VidCard in order to access certain functions of the Service. Users who register with VidCard (“Member(s)”) may have access to certain Application functions and features. Only a Member may use the Service to create and distribute Messages through the Application.
Member account, password and security: Members are responsible for maintaining the confidentiality of their login credentials and account information, and are fully responsible for any and all activities that occur under their password or account. Members agree to (a) immediately notify VidCard of any suspected or actual unauthorized use of a Member password or account or any other breach of security, and (b) ensure that Members exit from their Member account at the end of each session when accessing the Service. VidCard will not be liable for any loss or damage arising from a Member’s failure to comply with this term.
Modifications to Service: VidCard reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part or feature thereof) with or without notice. Without limiting the generality of the forgoing, VidCard may change its pricing at any time or add new fees and charges from time to time, but will provide notice to you of these changes via information on the Application. You agree that VidCard shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General practices regarding use and storage: You acknowledge that VidCard may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service on VidCard’s servers on your behalf. You agree that VidCard has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that VidCard reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that VidCard reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Conditions of Use
User conduct: You are solely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“content”) that you upload, provide, publish or display (hereinafter, “provide”), or e-mail or otherwise transmit or use via the Service. Without limiting the generality of the foregoing, you expressly agree to not use the Service to:
- provide, e-mail or otherwise transmit any content that:
- is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, or hateful racially, ethnically or otherwise objectionable;
- you do not have a right to transmit under any law or under contractual or fiduciary relationships;
- infringes any intellectual property or other proprietary rights of Thinkmixer or any other party;
- constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, or use any distribution lists including any person who has not given specific permission to be included in such a process (commercial or otherwise);
- contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- In the sole judgment of VidCard, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose VidCard or its users to any harm or liability of any type;
- “stalk”, harass or otherwise violate the legal rights of others;
- harm minors in any way;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
- download any file that you know, or reasonably should know, cannot legally be distributed in such manner;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; or
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any terms which may be applicable for any particular area of the Service; or intentionally or unintentionally violate any applicable local, state, national or international law, or any regulations having the force of law;
- use the Service in any unlawful manner or in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party’s use and enjoyment of the Service; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Notice for International Users: Recognizing the global nature of the Internet, you agree to comply with all applicable laws, rules and regulations regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of data exported from the United States or the country in which you reside.
The Services are subject to United States export controls and economic sanctions laws. In accepting these Terms of Service you represent and warrant that: (a) you are not located in, and you are not a national or resident of, any country or region to which the US, UK, EU, AU or CA has embargoed goods and/or services of the same type as the Services, including without limitation, Crimea, Cuba, Iran, North Korea, Sudan or Syria; and (b) that you and any entity you are acting on behalf of are not named on nor owned or controlled by, any government denied-party list in the US, UK, EU, AU or CA.
No resale of Service: Unless otherwise specified, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Intellectual Property Rights
Service content, software and trademarks:You acknowledge and agree that the Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Think Mixer, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally provide to the Application. Provided that you are eligible for use of the Service, you are granted a limited license to access and use the Application and the Service Content and to download or print a copy of any portion of the Service Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Such license is subject to these Terms and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Application or the Service Content other than as specifically authorized herein, without the prior written permission of Think Mixer, is strictly prohibited and will terminate the license granted herein. The technology and software underlying the Service is the property of Think Mixer, our affiliates and our partners (the “Software”). Except to the extent permitted by the law notwithstanding any contractual prohibition, you agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved.
The “VidCard” name and logo are trademarks and service marks of Think Mixer (collectively the “Think Mixer Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Think Mixer. Nothing in these Terms or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Think Mixer Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Think Mixer Trademarks will inure to our exclusive benefit.
Third party material:Under no circumstances will Thinkmixer be liable in any way for any content provided by third-parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content provided, e-mailed or otherwise transmitted via the Service. You acknowledge that Thinkmixer does not pre-screen content, but that Thinkmixer and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Think Mixer and its designees shall have the right to remove any content that violates the Terms or is deemed by Thinkmixer, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User-provided content:You are solely responsible for the content and other materials you provide through the Service or the Application or transmit to or share with other users or recipients (collectively, “User Content”). You will not provide any User Content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By providing any User Content you hereby grant and will grant Think Mixer and its affiliated companies and agents a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, transmit, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Think Mixer and its designees may, but have no obligation to, remove, edit, block, and/or monitor User Content at any time for any reason, including activity which, in its sole judgment: violates the Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive, illegal, or otherwise objectionable; or violates the rights of, or harms or threatens the safety of users of the Service.
You acknowledge and agree that Think Mixer may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce the Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Thinkmixer, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You acknowledge and agree that upon a request from a Guest, you will remove that Guest’s name from a public guest list on the event page, or Customer Support will remove it, if the Guest e-mails [support e-mail address].
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Application or the Service (“Submissions”), provided by you to VidCard are non-confidential, and Think Mixer shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Copyright complaints:Think Mixer respects the intellectual property of others, and we ask our users to do the same. Thinkmixer will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Application, with enough detail that we may find it on the Application;
- your address, telephone number, and e-mail address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Think Mixer’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Think Mixer Ltd.
Repeat infringer policy: In accordance with the DMCA and other applicable law, VidCard has adopted a policy of terminating, in appropriate circumstances and at VidCard’s sole discretion, Members who are deemed to be repeat infringers. VidCard may also at its sole discretion limit access to the Application and/or terminate the accounts of any Members who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Hyperlinks to Third Party Websites
The Service, our Members, or third parties may provide, links or otherwise direct users to other sites, services and resources on the Internet or otherwise. VidCard has no control over such sites and resources, and VidCard is not responsible for and does not endorse such sites, services and resources. You further acknowledge and agree that VidCard 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 content, events, goods or services available on or through any such hyperlinked site, service or resource.
By using the Service, to send a greeting card via e-mail through the Application or to distribute it through a third party service via a greeting card, or otherwise, and/or attending any such event, you agree to release, discharge and hold harmless Thinkmixer and its subsidiaries and affiliates, from any and all losses, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to the Service or any act or omission by any person, including without limitation, any dispute between you and any other person, any content provided via the Application, and your attendance at any event posted on, or promoted through, the Service or publicly distributed on the web. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes, without limitation, any claim resulting from delay and the criminal acts of others.
You agree to indemnify, defend and hold Think Mixer and its subsidiaries and affiliates, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of or relating to the Services, including without limitation, any event sent , or promoted through, the Service or publicly distributed through a third party service on the web, any content provided or transmitted through the Service, or publicly distributed through a third party service on the web, your use of the Service, your connection to the Service, your violation of the Terms or your violation of any rights of another.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED IN THE FOREGOING SECTION, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THINK MIXER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THINKMIXER MAKES NO WARRANTY THAT (I) ANY EVENT OR THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR EQUIPMENT OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THINKMIXER OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFIABLE INFORMATION ABOUT YOURSELF OR YOUR CHILDREN OR WHEN PROVIDING PHOTOS OR VIDEOS OF YOURSELF OR YOUR CHILDREN. THINK MIXER DOES NOT CONTROL OR ENDORSE THE CONTENT, MESSAGES OR INFORMATION FOUND ON THE SERVICE AND, THEREFORE, THINKMIXER SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO THE SERVICE AND ANY OTHER ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THINKMIXER AND THE THINK MIXER ENTITIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THINKMIXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS, CONTENT OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL THINK MIXER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE GREATER OF THE TOTAL FEES PAID BY YOU FOR THE SERVICES GIVING RISE TO THE CAUSE OF ACTION, OR ONE HUNDRED DOLLARS ($100).
IN NO EVENT WILL THINK MIXER OR ANY THINK MIXER ENTITY BE LIABLE OR RESPONSIBLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ANY OF OUR OBLIGATIONS THAT IS CAUSED BY EVENTS OUTSIDE OUR REASONABLE CONTROL.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Dispute Resolution By Binding Arbitration
Agreement to Arbitrate:This section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Thinkmixer, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Thinkmixer are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief :YOU AND THINK MIXER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THINKMIXER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: Think Mixer is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by e-mailing Customer Support at [support e-mail]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Thinkmixer should be sent to Thinkmixer Ltd., Attn: [corporate address or attorney address] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Thinkmixer and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Think Mixer may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Think Mixer or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Think Mixer is entitled.
Arbitration Procedures:Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Think Mixer and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Think Mixer agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration:Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Thinkmixer will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Think Mixer will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Confidentiality:All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Sever-ability:Without limiting the sever-ability provision in this section of the Terms of Service, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than the Prohibition of Class and Representative Actions and Non-Individualized Relief section above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the Prohibition of Class and Representative Actions and Non-Individualized Relief section is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement:Notwithstanding any provision in this Terms of Service to the contrary, Thinkmixer agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Think Mixer written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
You agree that Think Mixer, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Think Mixer believes that you have violated or acted inconsistently with the letter or spirit of the Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Think Mixer may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Thinkmixer may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Thinkmixer shall not be liable to you or any third-party for any termination of your access to the Service.
The Terms constitute the entire agreement between you and Think Mixer and govern your use of the Service, superseding any prior agreements between you and Think Mixer with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software, and you represent and warrant that you will comply with all such additional terms and conditions. If you reside in the U.S., the Terms shall be governed by the laws of the State of California without regard to its conflict of law provisions. If you are a U.S. resident, then, except as provided for in the Dispute Resolution By Binding Arbitration section above, You and Thinkmixer agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within [location for Thinkmixer]. TO THE EXTENT THE DISPUTE RESOLUTION BY BINDING ARBITRATION SECTION ABOVE IS INAPPLICABLE TO A CLAIM OR ACTION, AND WITHOUT PREJUDICE TO SECTION, EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT; EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION; AND EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THESE TERMS.. The failure of Think Mixer to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. If you are the U.S. resident, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in the Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either e-mail or regular mail. The Service may also provide notices to you of changes to the Terms or other matters by displaying notices or links to notices generally on the Service.
Additional Terms From Third Party Platform Providers
Apple-Enabled Software Applications: As part of the Service, we may offer mobile applications that are intended to be made commercially available by Apple Inc. (“Apple”, and such apps, “Apple-Enabled Software”). With respect to the Apple- Enabled Software, in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
- Think Mixer and you acknowledge that these Terms are concluded between Thinkmixer and you only, and not with Apple, and that as between Think Mixer and Apple, Think Mixer, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the usage rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the applicable Apple terms of service (the “App Store Terms of Service”).
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product, as applicable, that you own or control, as permitted by the usage rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Think Mixer’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Think Mixer and you acknowledge that Think Mixer, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Think Mixer and Apple, Think Mixer, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple- Enabled Software, they should be directed to Think Mixer at the contact information listed in these Terms.
- Think Mixer and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to any Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Contact Us: Questions? Concerns? Suggestions?
Please contact us to report any violations of the Terms or to pose any questions regarding these Terms or the Service.
Think Mixer Ltd.