1.Acceptance.Welcome to Myxer Social Radio which is owned and operated by or on behalf of Myxer Radio LLC ("Myxer", "we", or "us"). These Terms and Conditions of Use ("Terms") constitute a binding agreement between Myxer and you ("you" or "your") and govern your use of Myxer Social Radio (together with any other Myxer branded websites or urls designated by Myxer from time to time which reference these Terms, the "Website"), and any software applications, products and others services available through the Website, including but not limited to, the Myxer Social Radio Service (collectively, the "Myxer Services"). Upon our request, you agree to sign a non-electronic version of these Terms.
BY (A) VISITING OR USING THE WEBSITE; (B) ACCESSING, ACTIVATING OR USING ANY MYXER SERVICES; OR (C) CREATING AN ACCOUNT (WHETHER THROUGH MYXER OR A THIRD PARTY SUCH AS FACEBOOK, INC.), YOU AGREE TO BE BOUND BY THESE TERMS. If you do not agree to these Terms, you should immediately leave this page and not access or use the Website or any other Myxer Services.
YOU REPRESENT AND WARRANT TO MYXER THAT (A) YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) YOU ARE AT LEAST 13 YEARS OF AGE; AND (C) YOU ARE A RESIDENT OF THE UNITED STATES. Additionally, if you are thirteen (13) years of age or older, but under eighteen (18), you represent that your parent or legal guardian has reviewed and agrees to these Terms on your behalf. For persons accessing the Website or Myxer Services through a third party web site, social network or service, you also agree to comply with such third party's terms of service or use as applicable.
If Myxer provides you with a translation of the English language version of these Terms, you agree that the translation is provided for your convenience only and that the English language versions of these Terms shall govern your relationship with Myxer. If there is any contradiction between the English language version of these Terms and any translation, the English language version shall take precedence.
2. Changes to Terms and Conditions of Use and Myxer Services. THESE TERMS MAY BE AMENDED OR CHANGED BY US IN OUR DISCRETION, WITH OR WITHOUT NOTICE, AT ANY TIME. We indicate at the top of the page when these Terms were last updated. Be sure to return to this page periodically to ensure familiarity with the most current version of these Terms. Your continued access or use of the Website or any other Myxer Services following such changes will be deemed acceptance of such changes. In addition, we reserve the right to modify or cease providing all or any portion of the Website or Myxer Services at any time, with or without notice.
4. Accounts. In order to participate in or receive certain Myxer Services (including, but not limited to, the Myxer Social Radio Service), you will be required to create an account with us or with a third party such as Facebook, Inc. (an "Account"), and you may be subject to additional contractual terms and conditions applicable to such Myxer Services ("Additional Terms"), which Additional Terms will be accessible to you on the Website or presented to you when you sign up for or access such Myxer Services. Any such Additional Terms shall be incorporated into and form a part of these Terms. Your Account is for your individual, personal and non-commercial use only, and you may not authorize others to use your Account for any purpose. In creating your Account, you certify that all information you provide is complete and accurate. You agree to update your information when required or requested, and you further agree not to use another person's account without permission. You are responsible for maintaining the confidentiality of, and restricting access to, your Account and password, and you agree to accept sole responsibility for all activities that occur under your Account or password. You agree to notify us immediately at firstname.lastname@example.org of any breach of security or unauthorized use of your Account or any violation of these Terms by others of which you are aware.
5. Use of Website and Myxer Services; Assumption of Risk. The Website and Myxer Services may not be accessed or used outside the United States. You understand that by accessing or using the Website or Myxer Services, you may encounter content that may be deemed mature, offensive, indecent or objectionable, which content may or may not be identified as having explicit language or adult themes, and which in certain circumstances may be due to your interactions with other users or members in the course of accessing or using the Myxer Services. You fully assume all risk of loss arising out of your use of the WEBSITE OR ANY OTHER MYXER Services.
6. Conditions.Subject to your full compliance with these Terms and any applicable Additional Terms, Myxer hereby grants you a limited, non-exclusive, personal and non-transferable license to access and use the Myxer Services for your personal, non-commercial use; provided that (a) you do not copy or distribute any part of the Website or Myxer Services in any medium without Myxer's prior written authorization; (b) you do not alter or modify any part of the Website or Myxer Services except as expressly permitted under applicable law; and (c) you are in full compliance with the these Terms and any applicable Additional Terms. Myxer reserves all right, title and interest in and to the Website and Myxer Services, subject only to the limited license granted to you above.
7. User Guidelines and Restrictions; Prohibited Content.You agree that you will not in connection with your use of the Website or any Myxer Services:
(a) Abuse or harass any other user or person;
(b) Collect or store personally identifying information about other users for commercial or unlawful purposes;
(c) Impersonate any person or entity, including, but not limited to, a Myxer employee or forum leader, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(d) Employ misleading email addresses or mobile numbers or falsify information in any part of any communication related to the Website or Myxer Services;
(e) Engage in any activity which may compromise the stability or availability of the Website or Myxer Services or use the Website or Myxer Services to compromise the availability or stability of any third party site or service;
(f) Use the Website or Myxer Services for any unsolicited advertising or promotions;
(g) Use automated means, including spiders, robots, crawlers, or the like to download data from the Website or Myxer Service or any related server or database;
(h) Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Website, Myxer Services or any portion thereof;
(i) Circumvent any security measures or any payment collection methods employed on or through the Website or any Myxer Services, or access or use the Website or any Myxer Services after your Account, these Terms or your access has been terminated or suspended by Myxer;
(j) Upload, post, email, otherwise transmit or post links to any content or material, or select any member or user name or email address, in a manner that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable;
(k) Upload, post, email, otherwise transmit or post links to any content or material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party, or that contributes to, induces or facilitates such infringement;
(l) Upload, post, email, otherwise transmit or post links to any content or material that contains software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Website, Myxer Services or any third party software, site, equipment or service;
(m) Upload, post, email, otherwise transmit or post links to any content or material that violates any applicable law, statute, ordinance or regulation; or
(n) Upload, post, email, otherwise transmit or post links to any material or content that contains nudity or any other material that may be considered "adult", obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or is otherwise inappropriate;
(o) Use the Website or Myxer Services to reproduce copyrighted materials;
(p) Copy, store, edit, change, prepare derivative works of or alter in any way tracks streamed through the Website or Myxer Services; or
(r) Rent, lease or sublicense the Website or Myxer Services.
8. Fees and Payments; Taxes.The Myxer Social Radio Service and certain other Myxer Services are currently provided at no cost to you. MYXER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS BILLING METHODS OR CHARGE FOR THE MYXER SERVICES, INCLUDING BUT NOT LIMITED TO, THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT OR ANY MYXER SERVICES UPON NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. Your continued use of such Myxer Services following such notice Services will constitute your consent to such changes. You are responsible for paying any governmental taxes imposed on your use of the Myxer Services, including, but not limited to, sales, use or value-added taxes.
Although Myxer does not currently charge for the Myxer Social Radio Service, certain messaging, service and other standard fees and charges may be applied by your carrier. Please check your plan or with your carrier to ensure that you are aware of any such fees or charges. Myxer sends SMS text messages from three shortcodes, 69937 (MYXER), 44636 (4INFO), and 446361 (4INFO).
To stop receiving fan or friend list messages sent via Myxer at anytime, text STOP to 69937. For help, text HELP to 69937 or email email@example.com.
To stop receiving text messages sent via short code 44636 (4INFO) at anytime, text STOP to 44636. For help, text HELP to 44636 or email firstname.lastname@example.org.
To stop receiving text messages sent via short code 446361 (4INFO) at anytime, text STOP to 446361. For help, text HELP to 446361 or email email@example.com.
9. Advertising and Use of Computational Resources. As consideration for the limited license and rights granted to you under these Terms, you agree that (a) Myxer and its business partners shall have the right to provide ads, promotions, offers and other information to you by email or other means of communication; and (b) Myxer may allow the Myxer Services to utilize the processor, bandwidth and storage hardware on your computer or other relevant device for the purposes of facilitating (i) the communication and transmission of content and other data or features to you and other users of the Myxer Services; and (ii) the operation of the network(s) on which the Myxer Services run. You may opt out of receiving promotional messages from Myxer and its business partners at any time by changing your account settings or by hitting the "unsubscribe" link in any of your emails.
10. Termination.Myxer reserves the right without liability to terminate or restrict these Terms, or your access to or use of the Website or Myxer Services, with or without notice, for any reason, including but not limited to, if Myxer believes that you have violated or acted inconsistently with the letter or spirit of these Terms. You agree that Myxer shall not be liable to you or any third-party for any interference with or termination of your access to the Website or Myxer Services. Upon termination of these Terms or your Account, you will not be entitled to any refund of any unused fees, charges or other prepaid amounts. All decisions regarding the termination of these Terms or your Account shall be made Myxer in its sole discretion. We are not required, and may be prohibited, from disclosing to you the reason for termination of these Terms or your Account. Upon termination of these Terms for any reason, those provisions which, by their nature survive termination (including, but not limited to, Sections 5, 9, 10, 12, 13, 15, 17 and18) shall survive termination in accordance with their respective terms.
11. Customer Service.If you have questions about your Account or the Myxer Services please contact firstname.lastname@example.org. Myxer will use commercially reasonable efforts to keep your Account and the Website and Myxer Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Myxer also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Website and Myxer Services with or without notice. Myxer shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to any of the Website or Myxer Services. You understand and agree that neither your ISP nor any third party website through which you may have accessed the Website or Myxer Services is responsible for customer service, help, billing or account issues related to the Website or Myxer Services. You agree not to direct any questions, requests for assistance, or inquiries about the Website or Myxer Services to your ISP or to any third party website through which you may have accessed the Website or any Myxer Services. Please note that use of any mobile application provided in connection with the Myxer Services may only be used on supported devices and requires your use of the latest version of such mobile application. You are responsible for any third party devices, hardware or software that are required to use the Myxer Services.
12. User Submitted Content for Sharing or Selling.You acknowledge and agree that your communications with other users or members via chats, conferences, bulletin boards, blogs, posts and any other publicly accessible avenues of communication through the Website or Myxer Services are public and not private communications. Therefore, we strongly encourage you to use caution before disclosing any personal information about yourself in your public communications. We are not responsible for information that you choose to communicate to other users or members, or for the actions of other users or members, and you agree to indemnify us and hold us harmless from any losses, liabilities, damages or expenses you may incur due to such communications or actions.
By uploading, making available or submitting material or content ("Personal Content") to the Website or Myxer Services, you represent and warrant that:
(a) None of Myxer, its customers, licensees or business partners shall be required to make any payments with respect to such Personal Content you submit, including but not limited to, payments to you, third parties, music publishers, mechanical rights agents, performance rights societies, union guilds or your licensors or any persons who contributed to or appear in your Personal Content;
(b) You have full right, power and authority to upload or submit such Personal Content and have secured all third-party consents, licenses and permissions necessary to upload or submit such Personal Content and grant to Myxer the rights and licenses set forth below; and
(c) Such Personal Content (i) is not defamatory; (ii) does not infringe upon, misappropriate or violate the rights of any third party, including but not limited to, any intellectual property rights, rights of publicity or any other privacy or proprietary rights; and (iii) does not violate any law, rule, regulation or ordinance.
13. License Grant to Personal Content. By uploading, making available or submitting Personal Content, you grant Myxer and its business partners and affiliates (including, but not limited to, wireless service providers) a perpetual, irrevocable, world-wide, assignable, and transferable right and license to quote, re-post, use, copy, reproduce, modify, create derivative works of, incorporate into other works, distribute, transmit, broadcast, communicate, publicly display, publicly perform and otherwise exploit such Personal Content in any form or media, anywhere, and without any notice or compensation to you of any kind. You hereby grant us all consents, rights and clearances to enable us to use such Personal Content for such purposes. Without limiting the foregoing, Myxer may:
(a) Host your Personal Content on our servers and those of our business partners and display your Personal Content, in whole or in part, alone or in compilation with content provided by third parties, to other users of the Website or Myxer Services, including but not limited to, through the Myxer newsletters, ringtones, downloads, audio streams and video streams;
(b) Re-encode your Personal Content as needed to be compatible with different mobile phones which may degrade the sound quality of your music and/or video files;
(c) Edit your Personal Content to ensure that it complies with our policies and guidelines; and
(d) Use any trademarks, service marks, or trade names incorporated into your Personal Content and the likeness of any individual whose performance or image is contained in your Personal Content.
We reserve the right to refuse to transmit or post, and to disclose, block or remove any content or materials, including but not limited to, Personal Content, in whole or in part, that we in our discretion deem to be in violation of these Terms or otherwise harmful to persons using the Website or Myxer Services, regardless of whether the material or its dissemination is unlawful. We retain the right, but shall have no obligation, to monitor all transmissions and postings of Personal Content and other materials from time to time to investigate or prevent violations of these Terms. In addition, we may also take reasonable steps, including but not limited to, the limiting or filtering of the number of emails, chat messages or posts sent or received by a user or member.
14. Copyright Infringement.We strive to comply with the Digital Millennium Copyright Act of 1998, as amended ("DMCA"), at all times and maintain an offender policy which may result in the termination of your right to use the Website or Myxer Services if you violate such policy. If you believe that your work has been copied, posted or otherwise made available through the Website or Myxer Services in a way that constitutes copyright infringement, please notify our DMCA Copyright Agent of your complaint, as set forth in the DMCA. Please consult the DMCA to confirm these requirements. You must provide our DMCA Copyright Agent with the following information in writing, to the extent required by the DMCA: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright owner that is allegedly infringed; (b) a description of the copyrighted work that you claim has been infringed (or, if multiple copyrighted works on a site are covered by a single complaint, a representative list of the allegedly infringing works on the site); (c) identification of the material that is claimed to be infringing and to be removed, and information reasonably sufficient to permit us to locate the material; (d) information reasonably sufficient to permit us to contact you, such as your address, telephone number and e-mail address; (e) a written statement by you that you have 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; and (f) a statement by you, made under penalty of perjury, that the above information in your notice and complaint is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Please be aware that the foregoing information in your complaint may be forwarded to the person who provided the allegedly infringing content. The foregoing information must be submitted to Myxer’s DMCA Copyright Agent as follows:
Myxer Radio LLC
Attn: Privacy & Security
245 N. Ocean Blvd.
Deerfield Beach, FL 33441
Pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
If you believe that your material has been mistakenly removed or disabled pursuant to this Section, you may submit a counter notice by notifying our DMCA Copyright Agent at the address provided above. Pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
15. Intellectual Property Rights. Myxer and its licensors retain exclusive ownership of the Website and Myxer Services and all content and materials provided in connection with the foregoing (other than Personal Content), and all intellectual property rights associated therewith. Myxer and its licensors retain exclusive ownership of any data that is collected by Myxer through the operation of the Website or Myxer Services including, but not limited to, all ringtone and video start times and lengths that are created during operation of the Myxer Services. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Website or Myxer Services or any material or content provided in connection therewith. Myxer reserves all rights not expressly granted hereunder. You shall promptly notify Myxer in writing upon your discovery of any unauthorized use or infringement of the Website of Myxer Services (or any materials or content provided in connection therewith) or any patent, copyright, trade secret, trademarks or other intellectual property rights of Myxer or its licensors. The Website and Myxer Services contain proprietary information that is protected by copyright laws and international treaty provisions. Myxer expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your Account, these Terms and/or your use of the Myxer Website or Services if you fail to comply with any such local, state or federal law.
18. Limitation of Liability.in no event will we be liable to you or any other person for any indirect, consequential, exemplary, incidental, special or punitive damages, including but not limited to, lost profits arising out of your use, or inability to use, the website or myxer Services, even IF we have been advised of the possibility of such damages. You further agree to indemnify us and hold us harmless for any and all claims, damages, liabilities and expenses in the event that you find other users' or MEMBERS' Content to be offensive, harmful, obscene, inaccurate or deceptive. UNDER NO CIRCUMSTANCES SHALL our liability to you for any claim or cause of action whatsoever, and regardless of the form of action, whether arising in contract, tort or otherwise, exceed the amount paid by you to us, if any, during the 90 day period immediately preceding the date on which you first assert any such claim. the foregoing limitations sHall apply to the fullest extent permitted by applicable law.
19. Indemnification. You agree to indemnify and hold us, our parent, subsidiaries and affiliates, and ours and their shareholders, directors, officers, employees, agents, contractors, licensors and licensees harmless from any loss, liability, claim, demand or expense, including but not limited to, reasonable attorney's fees, made by any third party due to or arising out of your use of the Website or Myxer Services, or any breach or violation of these Terms.
20. Governing Law.These Terms shall be construed in accordance with the laws of the State of Florida, conflict of laws principles excluded, and the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Ft. Lauderdale, Florida. You consent to the exclusive jurisdiction of the such federal or state courts. If either Myxer or you employs any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
21. Export Controls. The Website and Myxer Services, and any material or content provided through the Website or Myxer Services , are subject to United States export controls. No such materials or content may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any such material or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
22. Electronic Communications. By using the Website or Myxer Services, you consent to receiving electronic communications (e.g., email) from us or our affiliates or business partners. These communications may include notices about your Account and these Terms and information concerning or related to the Website or Myxer Services. You agree that any notice, agreement, disclosure or other communication that we send to you electronically will satisfy any legal communication requirements, including but not limited to, any requirements that such communications be in writing.
23. Force Majeure. We shall not be held responsible or liable for any delay or failure in performance hereunder caused by acts of God (or natural disasters), terrorism, strikes, embargoes, fires, war, or any other cause beyond our reasonable control.
24. Notices. Except as explicitly stated otherwise, legal and other notices (including but not limited to notices of legal proceedings) shall be delivered to us by U.S. mail at [provide address], or to you at the email address you provided us (a) at the time you registered; (b) through a subsequent notice of an address change; or (c) through a posting through the Website of Myxer Services. Physical notices shall be effective when received. Email notices allowed hereunder shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. In addition, we may provide notice by certified mail, postage prepaid and return receipt requested. In such case, notice shall be deemed given when received.
25. General.No delay or failure to take action under these Terms shall constitute any waiver by Myxer of any provision of this Agreement. If any provision of these Terms is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. These Terms are personal to you and may not be transferred, assigned or delegated by you to any other person or entity. Any attempt by you to assign, transfer or delegate these Terms shall be null and void. These Terms will bind and inure to the benefit of each party's permitted successors and assigns. These Terms (including all terms and conditions incorporated herein by reference) constitute the complete and exclusive agreement between Myxer and you with respect to the subject matter hereof and supersede all prior oral or written understandings, communications or agreements not specifically incorporated herein.
NOTE: mVisible®, Myxer®, MyxerTones®, MyxerTags™, MyxerCodes™, MyxerPix™, and MobileStage™ are trademarks of Myxer.