Myxer Terms and Conditions

Welcome to Myxer (“Myxer”, “MyxerTones”, or “we”), which is owned, produced, and operated by Myxer Inc. Myxer is a mobile service provider that allows users to access, create, and send content to their mobile phone. The services offered by Myxer include the Myxer website and any other features, content, or applications offered from time to time by Myxer in connection with the Myxer website (collectively, the "Services").

1. ACCEPTANCE

THIS "MYXER TERMS AND CONDITIONS" (“TERMS” OR "AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN EACH USER (INCLUDING ANY REGISTERED USER, TRIAL USER, VISITOR, PRODUCER, AGGREGATOR, SELLER OF CONTENT, PURCHASER OF CONTENT OR PURCHASER OF ANY MYXER SERVICE)("YOU" AND "YOUR") AND MYXER INC. BY USING THE MYXER WEBSITE OR SERVICES, YOU AGREE THAT YOU UNDERSTAND THE AGREEMANT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR USE OF AND ACCESS TO ANY SERVICE PROVIDED BY MYXER. AS USED HEREIN, "SERVICES" INCLUDES USE OF ANY VERSION OF ANY MYXER SERVICES. IF YOU DO NOT AGREE TO THE TERMS, YOU SHOULD NOT USE THE MYXER WEBSITE OR SERVICES.

2. CONDITIONS

Myxer hereby grants you permission to use the Services as set forth in this Agreement, provided that you agree that (i) you will not copy or distribute any part of the website or Services in any medium without Myxer's prior written authorization; (ii) you will not alter or modify any part of the website or Services other than as may be reasonably necessary to use the website for its intended purpose; and (iii) you will otherwise comply with the these Terms and Conditions.

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. In any case, you affirm that you are over the age of 13, as the Myxer website is not intended for children under 13. If you are less than 13 years of age, then do not use the Myxer website or Services.

Because the Myxer website contains user-contributed content, you acknowledge that by using the Myxer website and Services, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances shall Myxer be liable in any way for the use of such content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed or otherwise transmitted via the Services.

3. TERM, FEES AND PAYMENTS

If you choose to purchase content from Myxer, all payments must be made by you through a charge to your cell phone bill, by a PayPal account, or credit card (VISA, MasterCard, American Express or Discover Card). We do not accept cash, checks or any other payment form. AS BETWEEN YOU AND MYXER, YOU, AND NOT MYXER, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR SERVICES BILLED TO YOUR PHONE, PAYPAL ACCOUNT, OR CREDIT CARD BY A THIRD PARTY WHO HAD ACCESS TO THESE ACCOUNTS, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU. You agree to pay all fees and charges incurred in connection with your services (including any applicable taxes) at the rates in effect when the charges were incurred. If Myxer does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Myxer.

(a) No Warranties
WITHOUT LIMITING ANY PROVISION HEREIN, MYXER MAKES NO WARRANTY THAT ANY PARTICULAR MOBILE PHONE OR OTHER PORTABLE DEVICE, OR OTHER HARDWARE OR SOFTWARE WILL BE COMPATIBLE WITH MYXER'S SERVICES. MYXER MAKES NO WARRANTY THAT ANY PARTICULAR NETWORK OPERATOR, CARRIER OR TEXT MESSAGING AGGREGATOR WILL BE COMPATIBLE WITH MYXER'S SERVICES.

(b) No Refunds
All fees paid and charges made as provided herein, including any advance charges are nonrefundable.

(c) Unauthorized Charges
Unless you notify Myxer of any discrepancies or unauthorized charges within sixty (60) days after they first appear on your credit card statement, PayPal statement or carrier bill, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release Myxer from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Myxer within sixty (60) days of its first appearance on an invoice, credit card statement or carrier bill.

(d) Taxes
You are responsible for paying any governmental taxes imposed on your use of the Services, including, but not limited to, sales, use or value-added taxes.

(e) Modification of Terms
MYXER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY MYXER, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO MYXER TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE MYXER WEBSITE OR SERVICES TO WHICH YOU HAVE PURCHASED OR USED.

4. TERMINATION

You agree that Myxer, in its sole discretion, with or without prior notice, may freeze or terminate your user name, password or use of the Services for any reason, including, without limitation, if Myxer believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Myxer may also in its sole discretion and at any time modify or discontinue providing any part of the Service with or without notice. Further, 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 Myxer Services

5. CUSTOMER SERVICE

You understand and agree that Myxer is solely responsible for all customer service, help, billing and account issues related to your use or subscription. Neither your ISP nor any third party website through which you may have accessed any Service is responsible for customer service, help, billing and account issues related to Myxer. You agree not to direct any questions, requests for assistance, or inquiries about the Myxer website or Service to your ISP or to any third party website through which you may have accessed the Myxer website or any Service. For assistance, please contact support@myxer.com.

6. YOUR ACCOUNT INFORMATION

Certain products and services offered may require registration. In consideration of the use of such products and services, in registering and providing such data, you represent and warrant that:

(i) the information about yourself is true, accurate, current and complete, and
(ii) you will maintain and update your Account Information as necessary

We shall treat all of your Account Information with the utmost respect for its confidential nature, and in accordance with the Myxer Privacy Policy, which is expressly incorporated herein by reference. To view the Myxer Privacy Policy, please click here.

You are solely and entirely responsible for maintaining the confidentiality of your password and for any and all activities that occur under your account. If you believe someone has accessed any Service using your user name and password without your authorization, it is your responsibility to set up a new password by selecting "My Account" from the Myxer website.

7. USER GUIDELINES AND PROHIBITED CONTENT

You agree that you will not use the Myxer website and Services to:

(a) Use the Services in a manner which is abusive or harassing to any other user.

(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 a person or entity.

(d) Employ misleading email addresses or mobile numbers or falsify information in any part of any communication.

(e) Engage in any activity which may compromise the stability or availability of the Services or use the Services to compromise the availability or stability of any third party site or service.

(f) Use the Service for any unsolicited advertising or promotions.

(g) Use automated means, including spiders, robots, crawlers, or the like to download data from any Service database.

(h) Decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from, or sublicense any software deployed in connection with the Products and Services.

(i) Circumvent any security measures or any payment collection methods employed on any Services, or access the Services after your account or access has been terminated by Myxer.

(j) Upload, post, email, otherwise transmit, or post links to any Content, or select any member or user name or email address, 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 that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights (“Rights”) of any party, or contributing to inducing or facilitating such infringement. This prohibition shall include, without limitation, the following forms of software piracy.

(l) Upload, post, email, otherwise transmit, or post links to any 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 Services or any third party software, site, equipment or service.

(m) Upload, post, email, otherwise transmit, or post links to any material that will violate any law, statute, ordinance, or regulation.

(n) Upload, post, email, otherwise transmit, or post links to any material 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. If you do post such content, you agree to take responsibility for any damages arising from your inclusion of such content.

8. USER SUBMITTED CONTENT FOR SHARING OR SELLING

By uploading or submitting material or content to the Service, you represent and warrant that: Myxer, our customers, and our licensees shall not be required to make any payments with respect to material or content that you submit to our sites under this Agreement, including but not limited to payments to you, third parties, music publishers, mechanical rights agents, performance rights societies, persons who contributed to or appear in your materials or content, your licensors, unions, or guilds;

(a) you have full right and power to enter into and perform under these Terms, and have secured all third-party consents, licenses, and permissions necessary to enter into and perform under these Terms;

(b) you agree that you have the master rights to distribute (free or for payment) the material or content that you submit to Myxer;

(c) the material or content that you submit to our sites does not contain "samples" of any third party’s content; including but not limited to, sound recordings, musical compositions and video recordings, and will not infringe on any third party’s copyright, patent, trademark, or trade secret;

In addition, if you post such material or content, you acknowledge and agree that Myxer, at its sole discretion, may disable your uploading or posting privileges and/or terminate your account. Notwithstanding, you shall remain responsible for such material or content and acknowledge, and agree that you shall indemnify and hold harmless Myxer from any and all damages or losses resulting from your posting of such material or content.

9. LICENSE GRANT FOR SHARED CONTENT

By uploading or submitting material or content to us for the purpose of sharing or selling, you grant us and our "Business Partners" (including, but not limited to wireless service providers) a worldwide, royalty-free, nonexclusive, license to:

(a) host your materials and content on our servers and those of our business partners; display your materials and content to Myxer users on our websites or in the Myxer newsletter, in whole or in part, alone or in compilation with content provided by third parties;

(b) make your material or content accessible to Myxer users and those of our business partners; including, but not limited to, ringtones, audio streams, and video streams;

(c) re-encode your materials and content as needed to be compatible with different mobile phones. (Note: re-encoding may degrade the sound quality of your music and/or video files);

(d) edit your materials and content to ensure that they comply with our policies and guidelines;

(e) use any trademarks, service marks, or trade names incorporated into your material or content and use the likeness of any individual whose performance or image is contained in your material or content.

Of course, you retain ownership of your materials and content. We do not have the right to sublicense your audio-visual materials or content other than as necessary to syndicate our sites to our business partners.

10. COPYRIGHT INFRINGEMENT

It is the policy of Myxer to respond expeditiously to claims of intellectual property infringement that comply with the Digital Millennium Copyright Act. For directions and more information, please click here.

11. INTELLECTUAL PROPERTY RIGHTS

Myxer and its licensors retain exclusive ownership of the Myxer website and Services, and all intellectual property rights associated therewith. Myxer and its licensors retain exclusive ownership of any data that is collected by Myxer during its operation including, but not limited to, all ringtone and video start times and lengths that are created during operation of the Myxer service. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Services or their contents. 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 Services (or their contents) or any patent, copyright, trade secret, trademarks or other intellectual property rights of Myxer or its licensors. The 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 service immediately for your failure to comply with any such local, state or federal law.

12. THIRD PARTY LINKS

This Agreement applies to all users of the Myxer website, including users who are also contributors of materials or content, information, and other materials or services on the website. The Myxer website may contain links to third party websites that are not owned or controlled by Myxer. Myxer has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Myxer will not and cannot censor or edit the content of any third-party site. By using the website, you expressly relieve Myxer from any and all liability arising from your use of any third-party website. Accordingly, we encourage you to be aware when you leave the Myxer website and to read the terms and conditions and privacy policy of each other website that you visit.

13. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE

Myxer will make reasonable efforts to keep your account and the 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 Service 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 Services.

14. DISCLAIMER OF WARRANTY

WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE INCLUDING BUT NOT LIMITED TO ANY PRODUCTS OR SERVICES PROVIDED THROUGH MYXER BY ANY OF MYXER’S THIRD-PARTY PARTNERS, SUPPLIERS, OR SERVICE PROVIDERS.

15. LIMITATION OF LIABILITY

THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICES IS WITH YOU. IN NO EVENT SHALL MYXER OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF MYXER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

16. MODIFICATION OF AGREEMENT

Myxer may modify this Agreement at any time in its sole discretion. If we make a material change to the Agreement, a "change of terms" notice will be posted and we will use reasonable efforts to notify you by email at the email address on file for your account. If any modification is unacceptable to you, you agree that your only recourse is to terminate using the Services. Your continued use of any Service following a change to this agreement whether or not a posting of a change of terms notice is completed, constitutes your binding acceptance of the change, until such time as you terminate using the services.

17. INDEMNIFICATION

You hereby agree to indemnify, defend, and hold Myxer and all of our officers, directors, owners, agents, information providers, affiliates, and licensors (collectively, the "Myxer Parties") harmless from and against any and all liability, losses, costs, and expenses (including attorneys' fees) incurred by any Myxer Party in connection with any claim arising out of (1) any use or alleged use of your account or password by any person, whether or not authorized by you, (2) any claim arising out of the material you submit to the Service, including but not limited to claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, trademark infringement, and any claim or liability relating to the content, quality, or performance of materials you submit to the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case you agree to cooperate with our defense of such claim.

18. SMS TERMS OF USE

Myxer does not charge for this service, but standard or other charges may apply from your carrier. Please check your plan or with your carrier to make sure. Myxer sends SMS text messages from three shortcodes, 69937 (MYXER), 44636 (4INFO), or 67664 (MSNAP).

• 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 support@myxer.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 support@4info.net.
• To stop receiving text messages sent via short code 67664 (MSNAP) at anytime, text STOP to 67664. For help, text HELP to 67664 or email support@msnap.com.

19. GOVERNING LAW

This Agreement 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. These Agreement together with the Privacy Policy and any other legal notices published by Myxer on the website constitute the entire agreement between you and Myxer with respect to the Service, and supersedes all previous written or oral agreements.

You consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Florida. 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.

19. GENERAL

No delay or failure to take action under this Agreement shall constitute any waiver by Myxer of any provision of this Agreement. If any provision of this Agreement 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. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. This Agreement (including all documents expressly incorporated herein by reference including but not limited to the Myxer Desktop Agent End User License Agreement) constitutes the complete and exclusive agreement between Myxer and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.

NOTE: mVisible®, Myxer®, MyxerTones®, MyxerTags™, MyxerCodes™, and MyxerPix™ are trademarks of Myxer Inc.
Last modified: May 9th, 2008