Welcome to MobBase!
Please carefully read the following important terms and conditions ("Terms of Service"). MixMatchMusic, Inc. ("MixMatchMusic") provides the website located at www.mobbase.com (the "Site") through which it develops mobile, desktop, and web-based applications (including, but not limited to any consulting services provided in connection therewith) ("Development Services") for Registered Users and through which such users can administer and maintain their Developed Applications (any and all of the foregoing, the "MobBase Services").
These Terms of Service govern your access to and use of the Site and MobBase Services, unless you have entered into a separate agreement with MixMatchMusic regarding mobile, desktop, or web-based applications. If you have entered into such an agreement, that agreement governs your access to and use of the Site and MobBase Services. These Terms of Service are a legal agreement between you and MixMatchMusic and apply to you whether you are a Registered User (defined below) or a visitor just browsing the Site (either, a "MobBase User"). These Terms of Service limit MixMatchMusic's liability and obligations to you, grant MobBase certain rights and allow MobBase to change, suspend, or terminate your access to and use of the Site and MobBase Services. "Developed Application" means any mobile, desktop, or web-based application developed as a result of the Development Services which includes the User Materials (defined below).
Please note that these Terms of Service do not govern your use of the websites MixMatchMusic.com and remixwizard.mixmatchmusic.com. Please see the separate terms and conditions which apply to use of those services and websites available at http://community.mixmatchmusic.com/terms and http://remixwizard.mixmatchmusic.com/terms
PLEASE NOTE THE FOLLOWING REGARDING THE MOBBASE SERVICES:
- Your use of the MobBase Services or submission of User Materials (defined below) does not mean that the Developed Application will be accepted and/or made available via the iTunes App Store or other application platform providers or stores (each a "Provider" and collectively the "Providers").
- If your Developed Application is rejected by Apple Inc. or another Provider, MobBase will assist you with changing the Developed Application subject to certain limitations. We do not guarantee a Provider will ever accept it. (See Section 4 below for further information).
- As part of the MobBase Services, you can choose to distribute your Developed Application through various Providers and/or through the mobile web. If you choose to distribute your Developed Application solely through the mobile web, it will not be available for download via the iTunes App Store, the Android Market, or other Providers, unless MobBase partners with a Provider that distributes Developed Applications via the mobile web.
- The Activation Fee (i.e., the fee you pay when you submit your User Materials) is non-refundable.
- You may not engage MobBase Services using content that you do not own or otherwise have the right to use.
- Do not use the Site or MobBase Services if you are uncomfortable with these possibilities or any other terms and conditions in these Terms of Service. Please see the MobBase FAQs for further information about the Development Services.
YOU UNDERSTAND THAT BY CLICKING THE "I AGREE" BUTTON, BY USING THE SITE, MOBBASE SERVICES OR YOUR ACCOUNT YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR MOBBASE SERVICES. IF YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF A BUSINESS, INDIVIDUAL OR GROUP OF INDIVIDUALS (EACH A "REPRESENTEE") YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT REPRESENTEE TO THESE TERMS OF SERVICE AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF SUCH REPRESENTEE. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO THAT REPRESENTEE ON WHOSE BEHALF YOU ARE ENGAGING THE MOBBASE SERVICES
- Eligibility and Registration.
- Registered Users. In order to access certain features of the Site and MobBase Services, you must be a "Registered User". To become a Registered User you must create a MobBase account and be at least 18 years of age.
- Account Information.
- When you register you will be asked to choose a username and a password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party.
- You agree that you will be solely responsible for any activities or actions taken under your password, whether or not you have authorized such activities or actions. You will immediately notify MixMatchMusic of any unauthorized use of your password. You agree that the information that you provide upon registration, and at all other times will be true, accurate, current and complete and you will keep all contact information up to date.
- End Users and Usage Data.
- On your behalf and in connection with your use of the Services, MixMatchMusic will collect certain tracking and usage data generated or provided by End Users, including but not limited to the personally identifiable information of End Users ("Usage Data"). An "End User" means a user of a Developed Application.
- You agree to comply with all applicable laws with regard to your use of Usage Data, including but not limited to the CAN-SPAM Act of 2003. You will not transfer or disclose any Usage Data to any third party, except to your employees and subcontractors provided that each such employee and subcontractor is subject to a written agreement that includes binding confidentiality restrictions.
- You are solely responsible for your interactions (including any disputes) with End Users and MixMatchMusic does not in any way screen End Users. MixMatchMusic may, but is under no obligation to, monitor or censor Usage Data, any comments made by End Users, or content provided by End Users and MixMatchMusic is not responsible for the accuracy, completeness, appropriateness, legality of Usage Data, or anything said, depicted, or written by End Users, and disclaims any and all liability relating thereto.
- Fees and Payments. While you can use the MobBase Services to distribute your Developed Application for free via the mobile web, you also have the option, as a Registered User, of purchasing a "Premium Developed Application" in order to distribute your Developed Application via a Provider and/or distribute a premium mobile web-based Developed Application. If you choose to distribute a Premium Developed Application, you will be subject to the following:
- Fees. Please see pricing for the rates at which the MobBase Services can be purchased which are incorporated herein by reference and are subject to change from time to time.
- Registered Users must pay (i) a monthly hosting fee to administer and maintain the Premium Developed Application via the MobBase Services ("Hosting Fee"), and (ii) a one-time non-refundable development fee for the submission of a Developed Application to a Provider and/or the activation of a premium mobile web-based Developed Application ("Activation Fee"). See Section 4 below for further information regarding the submission process to a Provider.
- Other Fees. If you wish to sell your Developed Application via a Provider, you will be required to pay a monthly "Commerce Enabling Fee". Additionally, if an End-User purchases a Developed Application and requests a refund for that purchase through a Provider, you will be required to pay a "Refund Fee"; in the event of a refund request by an End-User, MixMatchMusic will issue the End-User a full refund, if required by a Provider, and will add the total fees paid for such End-User refunds to your monthly bill as "Refund Fees". If you would like a MobBase consultant to assist you in building your Developed Application, you may purchase "Premium Support". If you would like to resubmit your Developed Application more frequently than once every two (2) months, you will need to pay a "Priority Resubmission Fee" of $50.00. Please see pricing for the rates at which additional MobBase Services and features can be purchased.
- Payment. Except as otherwise stated in the price list/FAQs, all monthly fees are billed on a monthly basis starting from the date a Premium Developed Application is made available by a Provider or via the mobile web ("Launch Date"). On the first day of every month, you will be billed for total fees incurred for your use of the MobBase Services in the previous month, which you agree to pay within twenty-one (21) days. Hosting Fees will be calculated daily, based on the aggregate number of installs your Premium Developed Application has, and charged monthly as described herein. If you terminate your use of the MobBase Services prior to the end a month, you will be sent an invoice for fees incurred prior to termination of MobBase Services.
- All fees are non-refundable. No prorated refunds or credits will be provided under any circumstances. You agree to pay MixMatchMusic for all charges at the prices then in effect for use of the MobBase Services by you or other persons (including your agents) using your MobBase account within twenty-one (21) days of being billed, and you hereby authorize MobBase to collect fees by charging the credit card you provide as part of your MobBase account information, either directly or indirectly, via a third party online payment service such as PayPal or otherwise. In the event that you select other payment options that MobBase may offer in the future, you agree to pay MixMatchMusic for all charges within twenty-one (21) days of being billed. In the event that you fail to pay an invoice in full within twenty-one (21) days of receipt, you will be charged a "Late Fee" of $5.00 per Premium Developed Application that contributed to the delinquent balance, which will be added to your next invoice.
- The MobBase Services may include sales tax based on the bill-to address and the sales tax rate in effect at the time your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with your receipt or use of the MobBase Services.
- Fees. Please see pricing for the rates at which the MobBase Services can be purchased which are incorporated herein by reference and are subject to change from time to time.
- Developed Applications.
- No Warranty. If you choose to distribute your Developed Application via a Provider, MixMatchMusic does not affect whether it will be made available via the Provider. Such availability is subject to an approval process entirely outside of MixMatchMusic's control. As such, MixMatchMusic does not warrant or guarantee that any Developed Application will be accepted or made available by a Provider. MixMatchMusic does not review or police the content of your User Materials or User Materials in general, nor does MixMatchMusic make editorial or managerial decisions related to your User Materials. You acknowledge and agree any that any assistance we provide to you via the Development Services or otherwise is at your direction.
- iOS Developer Account. If you desire to distribute your Developed Application via the iTunes App Store, Apple Inc. requires that you first set up your own iOS Developer Account with Apple Inc. Because of this, you will need to create your own Company iOS Developer Account with Apple Inc. before we can submit your Developed Application to the iTunes App Store. You will have the sole responsibility of paying any fees charged by Apple Inc. for the creation and maintenance of your iOS Developer Account, as these fees are not part of the MobBase Activation Fee. You agree to grant MixMatchMusic any and all access necessary to administer and maintain the Developed Application through your iOS Developer Account. In the event that you terminate or disrupt this access in any way, MixMatchMusic will have the right to suspend or disable your MobBase account or terminate these Terms of Service, at its sole discretion and without prior notice to you.
- Resubmission of Developed Applications to a Provider. In the event that your Developed Application is rejected by a Provider, we will resubmit your Developed Application up to three (3) times at no additional charge; any resubmission thereafter will require the payment of an additional Activation Fee for the Developed Application. In the event that you make changes to your Developed Application after its Launch Date that require resubmission to a Provider, we will resubmit your Developed Application up to two (2) times per year (from the Launch Date) at no additional charge; any resubmission thereafter will require the payment of an additional Activation Fee for the Developed Application. Resubmission of Developed Applications can be done once every two (2) months, and if you would like to resubmit your Developed Application more frequently, you will be charged a Priority Resubmission Fee.
- Affiliate Codes. If you choose to sell any of your User Materials through the Developed Application by requiring End-Users to click from the Developed Application to a third party retailer, you will be required to use MixMatchMusic's affiliate codes for such transactions with third party retailers. You agree not to modify, replace, or delete any MixMatchMusic affiliate codes in connection with the purchase of User Materials by End-Users through third party retailers.
- Sale of Developed Applications. In the event that you choose to sell your Developed Application through a Provider, the revenue that you earn from such sale will be credited against your monthly account balance, once MixMatchMusic receives financial statements for the sale of your Developed Application from the appropriate Provider(s). If in a given month you have accrued, after payment of your monthly account balance, at least $100.00 (USD) from the sale of your Developed Application(s), MixMatchMusic will render payment to you via check or PayPal, provided that MixMatchMusic has been paid by the appropriate Provider(s) for the sale of your Developed Application(s). If you terminate your MobBase account, and pay your entire account balance as of the date of termination, MixMatchMusic will pay you any revenue that you are owed from the sale of your Developed Application(s) within a reasonable time period after receiving payment from the appropriate Provider(s).
- Representative Entities. Without limiting any other terms of this Terms of Service, if you are an entity representing a Representee you acknowledge and agree that you are jointly and severally liable for all obligations of the Representee under this Agreement. You agree to defend, indemnify, and hold MixMatchMusic and its affiliates, subsidiaries, and distribution partners and their respective officers, directors, employees, and agents harmless from and against any third party claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with an alleged or actual breach by Representee of any of Representee's representations or warranties made under this Agreement.
- Obligations under Third Party Agreements. If you have obligations to any third party, as non limiting examples, such as under the terms, conditions or policies of a multi-media online merchant or a social networking service, in either case that you choose to link to through your User Content or to provide User Materials, you and not MixMatchMusic are responsible for your compliance with those requirements. By allowing you to showcase and promote User Content via the Site or MobBase Services, MixMatchMusic does not suggest, warrant, or guaranty that your use of any content in connection with the Site or MobBase Services is allowed by that merchant, nor that your use complies with any laws or regulations that may apply to your use, provision or purchase of any content. MixMatchMusic is not liable for your failure to comply with any applicable local, state, national and foreign laws, treaties and regulations, or any contracts, rules, policies, or procedures applicable to your activities.
- Proprietary Rights and Licenses.
- Certain Definitions.
"MixMatchMusic Materials" means (i) any text, data, graphics, images, photos, audio or video files, MixMatchMusic trademarks and logos and any other content made available via the Site and MobBase Services and (ii) any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by MixMatchMusic in connection with performing the Development Services, including all worldwide patent rights, copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein.
"User Materials" means any text, data, graphics, images, photos, audio, or video and any other content that Registered Users post or upload through the Site or MobBase Services and any other materials required by MixMatchMusic to perform the MobBase Services, excluding any MixMatchMusic Materials.
- License Grant to Registered Users. Subject to your compliance with the terms and conditions of these Terms of Service, MixMatchMusic grants you a limited, non-exclusive, and non-transferable license, without the right to sublicense, to access the MobBase Services, during the term of these Terms of Service, solely in connection with your use thereof. You will not remove, alter, or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, MobBase Services, MixMatchMusic Materials, or any other content made available through the Site or MobBase Services or related products and services and, except as explicitly permitted herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, MobBase Services, MixMatchMusic Materials or any other content made available through the Site or MobBase Services (other than your User Materials). No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by MixMatchMusic, except for the licenses and rights expressly granted in these Terms of Service.
- License Grant to MixMatchMusic.
- You retain all ownership of your User Materials. By uploading, posting, submitting, or otherwise transmitting any User Materials on or via the Site or MobBase Services you hereby grant to MixMatchMusic a non-exclusive, worldwide, royalty-free, and sublicensable right and license to use, reproduce, modify, distribute, prepare derivative works of, display, publish, perform, transmit and access such User Materials in connection with the MobBase Services and MixMatchMusic's business including, without limitation, for promotion and redistributing part or all of the MobBase Services (and derivative works thereof), in any media formats, through any media channels or otherwise. For example, you grant MixMatchMusic the right to package your User Materials with the MixMatchMusic Materials to create the Developed Application, to make your User Materials available in connection with the Developed Application and to promote and market your Developed Application.
- You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to MixMatchMusic. You acknowledge and agree that posting of or linking to your User Materials will comply with the MixMatchMusic Copyright and IP Policy as set forth in Section 8 below.
- You acknowledge and agree that MixMatchMusic may, at its option, reclassify or recategorize any User Materials and establish or change limits concerning User Materials, including, without limitation, the maximum number of days that User Materials will remain available via the MobBase Services or on the Site, the maximum size of any files that may be stored on or uploaded to the Site or MobBase Services and the maximum disk space that may be allotted to you for the storage of User Materials on MixMatchMusic's servers. MixMatchMusic will have no responsibility or liability for maintaining (or failing to maintain) copies of User Materials on its servers, and you are solely responsible for creating back-ups of your User Materials.
- Ownership. MixMatchMusic owns all right, title, and interest, including all worldwide intellectual property rights in the Site, MobBase Services, MixMatchMusic Materials, and any other content made available through the Site or MobBase Services contained therein, other than your User Materials.
- Certain Definitions. "MixMatchMusic Materials" means (i) any text, data, graphics, images, photos, audio or video files, MixMatchMusic trademarks and logos and any other content made available via the Site and MobBase Services and (ii) any software programs or tools, utilities, technology, processes, inventions, devices, methodologies, specifications, documentation, techniques and materials of any kind used or developed by MixMatchMusic in connection with performing the Development Services, including all worldwide patent rights, copyright rights, moral rights, trade secret rights, know-how and any other intellectual property rights therein.
- Copyrighted Materials: No Infringing Use. You will not use the Site or MobBase Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. MixMatchMusic will terminate in appropriate circumstances the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see the MobBase Copyright and IP Policy for further information.
- Termination or Suspension of the Site or MobBase Services & Modification of these Terms of Service.
- MixMatchMusic reserves the right in its sole discretion, at any time, to modify, discontinue, or terminate the Site or MobBase Services or to modify or terminate these Terms of Service without advance notice. If we modify these Terms of Service, we will post the modification on the Site or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of the page. If any modification is not acceptable to you, your only recourse is to cease using the Site and MobBase Services, and if applicable, cancel your MobBase account. By continuing to use the Site or MobBase Services after MixMatchMusic has posted any modifications on the Site or provided any required notices, you are indicating that you agree to be bound by the modified Terms of Service.
- If you breach these Terms of Service, MixMatchMusic will have the right to suspend or disable your MobBase account or terminate these Terms of Service, at its sole discretion and without prior notice to you. In addition, MixMatchMusic may notify authorities or take any actions it deems appropriate, without notice to you, if MixMatchMusic suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Service or any policies or rules established by MixMatchMusic (including, without limitation, if you infringe the copyrights of third parties via the Site or MobBase Services); or (ii) engaged in actions relating to or in the course of using the Site or MobBase Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse, or disruption for you, MobBase Users, MixMatchMusic, or any other third parties or the Site or MobBase Services.
- You may terminate your MobBase account at any time and for any reason. Upon any termination by you, the related account will no longer be accessible and in the event that a Developed Application has been made available via a Provider or the mobile web, such application will be removed. After any termination, you understand and acknowledge that all licenses and other rights granted to you by these Terms of Service will immediately cease. MixMatchMusic will not be liable to you or any third party for termination of the Site or MobBase Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION THAT YOU HAVE SUBMITTED VIA THE SITE OR SERVICE OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, MixMatchMusic will have no obligation to maintain any information stored in its database related to your account or to forward any information to you or any third party.
- The following provisions will survive any termination of these Terms of Services or suspension or cancellation of your MobBase account: Section 2, 3, 4, 5, 6, 7(a), 7(c)(ii), 7(d), 9(d), 10, and 12 through 21. Notwithstanding the forgoing, after any termination of these Terms of Service or suspension or cancellation of your MobBase account the license you grant to MixMatchMusic under Section 7(c)(i) only survives for a reasonable amount of time to allow MixMatchMusic to remove your User Materials that are in its possession and control from its systems.
- MobBase User Conduct.
The Site and MobBase Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and MobBase Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site, MobBase Services, MixMatchMusic Materials, or User Materials:
- Post, publish, or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another's privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred, or harm against any individual or group; (vi) infringes another's rights, including any intellectual property rights; or (vii) violates or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- Access, tamper with or use non-public areas of the Site, MixMatchMusic's computer systems or the technical delivery systems of MixMatchMusic's providers;
- Modify, replace, or delete any MixMatchMusic affiliate codes in connection with the purchase of User Materials by End-Users through the Developed Application;
- Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
- Attempt to access or search the Site, MixMatchMusic Materials, or MobBase Services with any engine, software, tool, agent, device, or mechanism other than the software or search agents provided by MixMatchMusic or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tools.
- Send unsolicited email, junk mail, "spam", chain letters, promotions, or advertisements for products or services;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, MixMatchMusic Materials, MobBase Services or User Materials to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Site, MixMatchMusic Materials, MobBase Services or User Materials;
- Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on MixMatchMusic's computer system, those systems of MixMatchMusic's providers, or otherwise use the Site, MixMatchMusic Materials, MobBase Services, or User Materials to attempt to distribute malware;
- Impersonate or misrepresent your affiliation with any person or entity; or
- Encourage or authorize any third party to engage in any of the forgoing prohibited activities.
- MobBase Affiliate Program. As a Registered User, you are eligible to participate in the MobBase Affiliate Program (the "Program"), whereby you can receive referral fees for Premium Developed Applications purchased and launched by Registered Users that you refer. By choosing to be an affiliate in the Program you are agreeing to be bound by the following terms and conditions. Violation of any of the terms below will result in the termination of your account and forfeiture of any outstanding affiliate commission payments earned during the violation:
- Account Terms. You must be a Registered User to be a part of the Program and you may not use the Program to earn money on your own MobBase accounts by purchasing Premium Developed Applications for your own use through your affiliate links. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of your ability to participate in the Program.
- Referral Fees and Commissions.
- The referral fee that you are eligible to earn is $20.00 (USD) for every Premium Developed Application that you refer that is to be distributed by a Provider, or $5.00 (USD) for every Premium Developed Application that you refer that is to be distributed via the mobile web, unless you have entered into a separate referral agreement with MixMatchMusic regarding Developed Applications.
- In order to be eligible to earn referral fees, Registered Users that you refer must sign up for the MobBase Services using your referral code in the appropriate field upon sign up. If they sign up without using your referral code you will not receive commission. Sign-up commissions are earned once a Registered User signs up and pays the MobBase Activation Fee and commissions are only earned if a Registered User makes a payment.
- The commission structure is subject to change at our discretion. We will notify you 30 days prior to a commission structure change. Commissions earned under the previous structure will be paid under the previous structure. We will only pay commissions on signups that are automatically tracked and reported by our systems. We will not pay commissions if someone says they signed up or someone says they entered a referral code if it was not tracked by our system. We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive and questionable sales or marketing methods.
- Payments. Payments only begin once you have earned more than $100.00 (USD) in affiliate income. If your affiliate account never crosses the $100.00 threshold, your commissions will not be realized or paid, as we are only responsible for paying accounts that have crossed the $100.00 threshold. As long as your current affiliate earnings are over $100, you'll be paid roughly every 120 days. If you haven't earned $100.00 since your last payment, we'll pay you roughly 120 days after you've crossed the threshold. Payments are only made via PayPal. We cannot send checks, apply funds to credit cards, or send cash. You are required to have a PayPal account to receive commissions. If you don't have a PayPal account you can sign up for one at any time, but you will not be paid until you have one.
- Identifying Yourself as a MobBase Affiliate. You may not issue any press release with respect to your participation in the Program; such action may result in your termination from the Program. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, say you develop our products, say you are part of MixMatchMusic or MobBase, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Terms of Service (including by expressing or implying that we support, sponsor, endorse, or contribute money to any charity or other cause).
- Customer Definition. Registered Users who buy Developed Applications through the Program will be deemed to be our customers. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Developed Applications and other MobBase Services sold under the Program in accordance with our own pricing policies. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of Developed Applications or any particular part of the MobBase Services.
- Termination of the Program. MixMatchMusic reserves the right to end the Program at any time, upon which, MixMatchMusic will pay any outstanding earnings accrued through the Program above $100.00.
- Independent Investigation. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Terms of Service or operate web sites that are similar to or compete with your web site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than set forth in this Terms of Service.
- Indemnification. You agree to defend, indemnify and hold MixMatchMusic and its affiliates, subsidiaries and distribution partners and their respective officers, directors, employees and agents harmless from and against any third party claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with: (i) your access to or use of the Site, MobBase Services, MixMatchMusic Materials, User Materials; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including, without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any claim that User Materials caused damage to a third party, including, without limitation, claims that your User Materials is infringing; or (v) your use of the Usage Data.
- Disclaimer. THE SITE, MOBBASE SERVICES, MIXMATCHMUSIC MATERIALS AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR MOBBASE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH NO WARRANTY OF ANY KIND. MIXMATCHMUSIC EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, MOBBASE SERVICES, MIXMATCHMUSIC MATERIALS AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR MOBBASE SERVICES, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN ADDITION, MIXMATCHMUSIC MAKES NO REPRESENTATION OR WARRANTY THAT: (I) THE SITE, MOBBASE SERVICES, MIXMATCHMUSIC MATERIALS, USER MATERIALS OR ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR MOBBASE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (II) YOU WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM YOUR USE OF THE SITE OR MOBBASE SERVICES; OR (III) A DEVELOPED APPLICATION WILL BE ACCEPTED AND/OR MADE AVAILABLE BY A PROVIDER IF YOU CHOOSE TO DISTRIBUTE YOUR DEVELOPED APPLICATION THROUGH A PROVIDER. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. UNDER NO CIRCUMSTANCES WILL MIXMATCHMUSIC OR ITS OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE, MOBBASE SERVICES, MIXMATCHMUSIC MATERIALS AND ANY OTHER CONTENT MADE AVAILABLE THROUGH THE SITE OR MOBBASE SERVICES, INCLUDING, WITHOUT LIMITATION, INJURY, OR DAMAGES RESULTING FROM THE CONDUCT OF ANY END USER, ONLINE OR OFFLINE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY WHETHER OR NOT MIXMATCHMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MIXMATCHMUSIC WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY ERRORS RELATING TO THE SITE, MOBBASE SERVICES, MIXMATCHMUSIC MATERIALS, OR SCHEDULED OR UNSCHEDULED SERVICE INTERRUPTIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MIXMATCHMUSIC'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF SERVICE WILL NOT EXCEED THE GREATER OF (I) TWENTY FIVE DOLLARS ($25.00 USD) OR (II) THE TOTAL AMOUNT OF FEES PAID BY YOU TO MIXMATCHMUSIC IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
- Force Majeure. MixMatchMusic will not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, failure of the internet, or extraordinary connectivity issues experienced by telecommunications providers or connectivity to the internet or failure at a MixMatchMusic co-location facility (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, MixMatchMusic will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and for such further period of time that MixMatchMusic may reasonably require to recover from the effects of such Force Majeure Event.
- Relationship of the Parties; No Third Party Beneficiary. Notwithstanding any provision hereof, for all purposes of these Terms of Service each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind nor attempt to bind the other to any contract. You acknowledge and agree you are not a third party beneficiary of these Terms of Service or any other any agreement between MixMatchMusic and a third party and MixMatchMusic is under no obligation to enforce any such agreement and disclaims any and all liability relating thereto.
- Notice; Consent to Electronic Notice. You consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service (including notices regarding the security of your data); and (b) electronic records to store information related to these Terms of Service and your use of the Site and MobBase Services. Any notice or other communication to be given hereunder will be in writing and given (i) by MixMatchMusic via email (in each case to the address that you provide), (ii) a posting on the Site, or (iii) by you via email to email@example.com or to such other addresses as MixMatchMusic may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
- Links to other Websites. The Site or MobBase Services may provide links to websites other than www.mobbase.com. Such links are provided for reference only, and MixMatchMusic neither controls such websites nor endorses any of the material on any such websites or any association with their operators. MixMatchMusic is not responsible for the activities or such sites, and has no liability to you for any harms, injuries, or losses you might suffer as a result of using or accessing such websites.
- Non-Solicitation. During the term of these Terms of Services and for a period of twelve (12) months thereafter, Registered User will not recruit or otherwise solicit for employment any MixMatchMusic employees or subcontractors who participated in the performance of Development Services.
- Assignment. You may not assign or transfer these Terms of Service (by operation of law or otherwise) without the prior written consent of MixMatchMusic and any prohibited assignment will be null and void. MixMatchMusic may assign these Terms of Service or any rights hereunder without your consent. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties' permitted successors and assigns.
- Miscellaneous. In the event that any provision in these Terms of Service is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision. These Terms of Service will be governed by and interpreted in accordance with the laws of the State of California excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under these Terms of Service will be brought exclusively in courts located in Northern California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. You agree that these Terms of Service and the rules, restrictions and policies contained herein, and MixMatchMusic's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and MixMatchMusic. These Terms of Service together with the rules and policies of MixMatchMusic incorporated herein by reference constitute the entire agreement between MixMatchMusic and you with respect to the subject matter of these Terms of Service.
- Questions. If you have questions about these Terms of Service please contact MixMatchMusic by emailing us at firstname.lastname@example.org.