These Terms of Service (“Terms”) are a binding contract between you, an individual user (“User,” “you” or “your”) and Netmix, LLC (“Netmix,” “we,” “us” or “our”) governing your use of the digital goods and services that Netmix makes available, whether directly or through third parties, specifically Radio Station by Netmix (individually and collectively, “Radio Station ”), the website located at https://www.netmix.com/ and any other online properties owned or controlled by or on behalf of Netmix (each a “Website” and, collectively, the “Websites”) (the Radio Station and any Websites are the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT USE THE SERVICE. TO HAVE A COPY OF THESE TERMS SENT TO YOU, CONTACT NETMIX AT [email protected]. THIS PREAMBLE IS INCORPORATED BY REFERENCE INTO THE TERMS.
Material Terms: As provided in greater detail in these Terms (and without limiting the express language of these Terms), you acknowledge the following:
- the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms;
- the use of the Service may be subject to separate third-party terms of service and fees;
- for all Users (as defined below) of the Service other than those located in the European Economic Area (“EEA”), you consent to the collection, use, and disclosure of your information in accordance with Netmix’s Privacy Policy available at www.netmix.com/privacy-policy (“Privacy Policy”) and for Users located in the EEA, you acknowledge and understand Netmix’s processing activities for the collection, use, and disclosure of your information in accordance with Netmix’s Privacy Policy;
- we provide the Service to you on an “as is” basis without warranties of any kind, and Netmix’s liability to you is limited; and
- disputes arising between you and Netmix will be resolved by binding arbitration. By accepting these Terms, as provided in greater detail in Section 9 below, you and Netmix are each waiving the right to a trial by jury or to participate in a class action.
1. General Terms and Conditions.
a. Changes to these Terms. You understand and agree that we may change these Terms at any time without prior notice. You may read a current, effective copy of these Terms at any time by selecting the appropriate link on the Service. The revised Terms will become effective at the time of posting unless specified otherwise. Any use of the Service after the effective date will constitute your acceptance of such revised Terms. If you find any change to these Terms or the Service unacceptable, then your sole remedy is to stop accessing, browsing, and otherwise using the Service. The terms of these Terms will govern any updates Netmix provides to you that replace and/or supplement any portion of the Service unless the upgrade is accompanied by a separate license or revised Terms, in which case the terms of that license or revised Terms will govern. Notwithstanding the preceding sentences of this Section 1.a, no revisions to these Terms will apply to any dispute between you and Netmix that arose prior to the effective date of such revision.
b. Privacy Policy, Copyright Policy, Cookie Policy and Acceptable Use Policy. Your access to and use of the Service is also subject to Netmix’s Acceptable Use Policy, Cookie Policy, Copyright Policy, and Privacy Policy. For all Users of the Service other than those located in the EEA, the Acceptable Use Policy, Cookie Policy, Copyright Policy, and Privacy Policy are incorporated into these Terms by reference.
c. Jurisdictional Issues. The Service is controlled and operated by Netmix from its offices in the State of North Carolina. Netmix makes no representation that materials on the Service are appropriate, lawful or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
d. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY NETMIX. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least the age of majority in your jurisdiction or you have been authorized to use the Service by your parent or legal guardian who is at least the age of majority in your jurisdiction.
e. Additional Terms. We also may require you to agree to additional terms and/or policies beyond those mentioned in Section 1.b that we make available to you from time to time in connection with your use of the Service (“Additional Terms”). Any such Additional Terms are hereby incorporated into and subject to these Terms, and these Terms will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
2. The Service.
a. Description. Radio Station by Netmix is a WordPress plugin to build and manage show schedules for radio stations or internet broadcasters’ WordPress websites. Certain features of the Service are available to you free of charge (the “Free Service”). Other aspects of the service, currently referred to as “Netmix Pro,” are only available to paying subscribers (the “Subscriptions”). Any end-user who accesses and uses the Free Service is a “Visitor,” and any end-user who pays for a subscription is a “Subscriber.” The term “Users” refers to Visitors and Subscribers, collectively.
b. Consideration.
i. Service. You acknowledge and agree that these Terms are entered into in consideration of your use of the Service pursuant to these Terms and for other good and valuable consideration, the receipt, and sufficiency of which you acknowledge.
ii. Subscriptions. If you are a Subscriber, then you acknowledge and agree that the additional terms in Section 4 below apply to your Subscriptions and that Netmix provides access to Subscriptions in consideration of your payment of the amounts described in that Section.
iii. No Rights to Compensation. In return for enjoying the Free Service or Subscriptions, you further acknowledge and agree that Netmix may generate revenues (including from advertising and sponsorships), increase goodwill or otherwise increase the value of Netmix from your use of the Service, and you will have no right to share in any such revenue, goodwill or value whatsoever.
c. Changes to the Service. Netmix may at its sole discretion and from time-to-time change, add or remove features, functionality and content of or available through the Service without any notice to you. Netmix may also terminate or discontinue support for any versions of the Radio Station. Netmix also reserves the right to discontinue some or all of the features of the Service at any time at its sole discretion (including the provision of software updates and support for different devices or platforms). You acknowledge and agree that Netmix will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any specific functionality of the Service or the removal of any features, functionality or content. If you are dissatisfied with any changes to the Service, then your sole remedy is to discontinue or terminate your use of the Service as described herein.
d. Third Party Fees. The Service is currently accessible via computer and some other mobile and other connected devices (collectively, “Third Party Services”). Your mobile carrier’s or ISPs normal messaging, data and other rates and fees will apply to your use of the Third-Party Services. In addition, downloading, installing or using certain Third-Party Services may be prohibited or restricted by your mobile carrier, and not all Third-Party Services may work with all carriers or devices. Therefore, you are solely responsible for checking with your mobile carrier to determine if the Third-Party Services are available for your mobile device(s), what restrictions, if any, may be applicable to your use of the Third-Party Services, and how much they will cost you. Nevertheless, all use of the Radio Station and the related Third-Party Services must be in accordance with these Terms.
e. Service Security. You may not violate, or attempt to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service. Netmix reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, to refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations. This cooperation may include the disclosure of all or your activities on or related to the Service. You agree to promptly notify Netmix if you learn or reasonably suspect that any security breach related to the Service has occurred.
f. Support. Each use grants the User access to the Radio Station’s support service, which covers help with setting up the latest version of the Radio Station and directions on how to use the latest version of Radio Station as advertised. Netmix reserves the right, in its sole discretion, to limit the number of support interactions granted to any User within a specific time period. The support service does not cover help with theme or directory customization beyond the advertised, nor does it cover help on sites that are heavily customized or in situations where the core Radio Station files have been modified. Additionally, if a bug is discovered in any code of Radio Station, we offer no guarantee that we will repair it. Bug fixes, if any, shall be made at Netmix’s sole discretion. All support is provided via our help desk; there is no live chat, phone support, or email support available.
While Company attempts to reply to all support requests promptly, no response time is guaranteed, expressly or implicitly.
Notwithstanding anything herein to the contrary, certain support services may be available only to Users who have an active, paid support license. For such services, support, updates, and plugin downloads are granted for one year after the original purchase. After one year from the date of purchase, the User must renew their license.
Support for Radio Station is provided as long as Radio Station is actively in development. Should any one of the following occur, Netmix, LLC will no longer be responsible for providing support for Radio Station:
- Radio Station is no longer actively developed as a viable product under Netmix, LLC.
- Radio Station or the parent company is purchased or bought out by another company.
- WordPress is no longer actively developed.
While we attempt to provide the best support possible for our plugins, we do not guarantee that any particular support query can or will be answered to the extent that the inquirer is completely satisfied.
3. Registration.
a. Log-In Credentials. While you may access the Free Service and browse the public-facing portions of the Service without registering with us, in order to access Subscriptions and enjoy the full functionality and benefits of the Service, including building and managing a show schedule, you must register an account with us (an “Account”). We may use third parties, such as Patreon, to register User Accounts. In such a case, the terms and conditions of any such third parties shall apply to User Accounts registered through such third parties.
b. Account Security. You are responsible for the security of your Account and are fully responsible for all activities that occur through the use of your Account credentials. You agree to notify Netmix immediately at [email protected] if you suspect or know of any unauthorized use of your Account credentials or any other breach of security with respect to your Account. Netmix will not be liable for any loss or damage arising from unauthorized use of your Account credentials prior to you notifying Netmix of such unauthorized use or loss of your Account credentials.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Netmix requests. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Netmix, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Netmix may terminate your Account immediately without notice to you and without any liability to you or any third party.
4. Additional Terms for Subscription.
a. Subscription Process. You may purchase a Subscription through the Website or through such other channels as Netmix may make available from time to time in its sole discretion. Where you purchase a Subscription through the Website or another channel controlled by Netmix your payments are processed by our third-party payment processors. We accept various forms of payment, as specified during sign-up. We do not accept cash or checks.
b. Billing Authorization. BY PROVIDING YOUR PAYMENT METHOD AND OBTAINING A SUBSCRIPTION TO THE SERVICE, YOU AUTHORIZE NETMIX (OR ANY OF ITS SERVICE PROVIDERS), AS APPLICABLE, TO CHARGE TO YOUR DESIGNATED PAYMENT METHOD THE APPLICABLE MONTHLY OR ANNUALLY RECURRING SUBSCRIPTION FEES (“SUBSCRIPTION FEE”), AND ANY APPLICABLE SALES, TELECOMMUNICATION, EXCISE, VALUE-ADDED OR SIMILAR TAXES (“TAXES”). THE SUBSCRIPTION FEE IS EXCLUSIVE OF ANY SUCH TAXES. THE SUBSCRIPTION FEE IS PAYABLE IN THE CURRENCY SPECIFIED DURING SIGN-UP.
c. Subscription Fee Changes. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE RESERVE THE RIGHT TO CHANGE THE SUBSCRIPTION FEE AT ANY TIME IN OUR SOLE DISCRETION. IF WE CHANGE THE SUBSCRIPTION FEE, THEN WE WILL PROVIDE YOU NOTICE OF THE PROPOSED CHANGE AT LEAST 30 DAYS BEFORE THE CHANGE IS TO TAKE EFFECT. SUBSCRIPTION FEE CHANGES WILL TAKE EFFECT AT THE START OF THE NEXT RENEWAL OF YOUR SUBSCRIPTION FOLLOWING THE DATE OF THE PRICE CHANGE. YOU ACCEPT THE NEW PRICE BY CONTINUING TO USE THE SERVICE AFTER THE PRICE CHANGE TAKES EFFECT. IF YOU DO NOT ACCEPT THE PRICE CHANGE, THEN YOU MAY UNSUBSCRIBE FROM THE SERVICE PRIOR TO THE PRICE CHANGE GOING INTO EFFECT.
d. Automatic Renewal. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, BY PURCHASING A SUBSCRIPTION TO THE SERVICE, YOU AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION TERM AT THE THEN-CURRENT SUBSCRIPTION FEE AND FOR THE SAME TERM AS THE IMMEDIATELY PRECEDING SUBSCRIPTION, UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION.
e. Recurring Charges. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UPON EXPIRATION OF YOUR SUBSCRIPTION, YOU WILL AUTOMATICALLY BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION FEE PLUS ANY TAXES. YOUR PAYMENT METHOD WILL BE CHARGED THE SUBSCRIPTION FEE FOR THE RENEWAL TERM OF YOUR SUBSCRIPTION ON YOUR BILLING DATE, BASED ON THE TYPE OF SUBSCRIPTION (E.G., ON A PARTICULAR DATE EACH MONTH FOR A MONTHLY SUBSCRIPTION). IF, HOWEVER, THE BILLING DATE OF YOUR SUBSCRIPTION IS ON THE 29TH, 30TH, OR 31ST DAY OF A MONTH, AND YOUR BILLING DATE DOES NOT EXIST IN A PARTICULAR MONTH BECAUSE THERE ARE FEWER THAN THIRTY-ONE (31) DAYS IN THE MONTH PAYMENT IS DUE, THEN YOUR BILLING DATE FOR THAT PARTICULAR RENEWAL WILL BE ON THE LAST DAY OF THE MONTH IN WHICH YOUR BILLING DATE WOULD OTHERWISE BE.
f. Cancellation and Refunds. YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME BY FOLLOWING THE PROCESS DESCRIBED HERE. IF YOU CANCEL YOUR SUBSCRIPTION, THEN YOU WILL HAVE ACCESS TO THE SUBSCRIPTION UNTIL THE DATE THAT WOULD HAVE BEEN YOUR NEXT BILLING DATE, AFTER WHICH YOU WILL BE DOWNGRADED TO THE FREE SERVICE.
g. Cooling-off Period. If you reside in the European Union (or any other jurisdiction that requires a cooling-off period following the purchase of a Subscription to the Service) and register for a Subscription, then you may cancel your Subscription for any reason or no reason and receive a full refund of your Subscription Fee within 14 days of your payment method being charged (“Cooling-off Period”) unless you have previously accessed your Subscription (i.e., you receive a transmission through the Service). If you have accessed the Service following the date of charge of your payment method pursuant to your Subscription at any time during the Cooling-off Period, however, then we will not refund any Subscription Fees already paid to us.
h. Failure to Pay. If you fail to pay the applicable Subscription Fee when due, then you will be downgraded to the Free Service. If you are downgraded, then Netmix may, but is not obligated to, maintain your Account and/or related content and information, in order to allow you to pay the past-due charges and restore your Subscription.
5. Registration.
a. Log-In Credentials. While you may access the Service and browse the public-facing portions of the Service without registering with us, in order to access and enjoy the full functionality and benefits of the Service you must register an account with us (an “Account”).
b. Account Security. You are responsible for the security of your Account and are fully responsible for all activities that occur through the use of your Account credentials. You agree to notify Netmix immediately at [email protected] if you suspect or know of any unauthorized use of your Account credentials or any other breach of security with respect to your Account. Netmix will not be liable for any loss or damage arising from unauthorized use of your Account credentials prior to you notifying Netmix of such unauthorized use or loss of your Account credentials.
c. Accuracy of Information. When creating an Account, you will provide true, accurate, current and complete information as Netmix requests. You will update the information about yourself and/or your broadcast radio and/or webcast station or podcast promptly, and as necessary, to keep it current and accurate. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third party rights, damage or bring into disrepute the reputation of Netmix, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then Netmix may terminate your Account immediately without notice to you and without any liability to you or any third party.
d. License Holders. Only a license holder is permitted to request support or access support resources. If any attempt is made by another party other than the license holder to access support in a manner not specified, we reserve the right to suspend indefinitely the license key without notice or consent. Re-posting content from any portion of this site, including support forum and documentation materials, is strictly prohibited. If any attempt is made to re-post content in a manner specified above, we reserve the right to suspend indefinitely the license key without notice or consent.
Sharing or reselling your license key is not allowed. If we discover a violation of this rule, we reserve the right to immediately suspend the account without notice, indefinitely.
e. Inactive License
If your license becomes inactive and is otherwise no longer valid, (a) Netmix will no longer be obligated to provide you the Services, (b) your account will no longer be accessible by you to download plugin files, (c) you will immediately stop using Services, and (c) all licenses and other rights granted to you under the Agreement will immediately cease. Netmix will not be liable to you or any third party for termination of this Agreement or any termination or suspension of your use of the Services.
YOU ACKNOWLEDGE THAT YOUR CONTENT MAY BE DELETED FROM YOUR ACCOUNT UPON YOUR LICENSE BECOMING INACTIVE. THIS CONTENT CANNOT BE RECOVERED ONCE DELETED. IF YOUR LICENSE IS NOT ACTIVE, NETMIX WILL NOT STORE CONTENT ON YOUR BEHALF.
6. Intellectual Property Rights.
a. Service. Subject to your complete and ongoing compliance with these Terms, Netmix hereby grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license to receive upgrades, support and access to Radio Station for your own use on a number of websites, subject to the limitations set forth herein solely for your personal, non-commercial entertainment use as intended through the provided functionality of the Service and solely in strict compliance with the provisions of these Terms. You may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service.
b. Netmix Content. Except for User Content (defined below) and third-party content owned or controlled by third party transmitting entities over whom Netmix does not exercise a right and ability to control and where such content is made available through the Service when Netmix is providing a tool, index or directory service (“Third Party Content”), the content that Netmix itself provides to Users on or through the Service, including without limitation, any visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, text, scripts, photos, methods, sounds, music, animations, videos and the like and the trademarks, service marks, brand names, logos, contained therein, may be protected by copyright or other intellectual property rights and is owned by Netmix or its third-party licensors (collectively, the “Netmix Content”). You may not reproduce, modify, distribute, display, publish, transmit, communicate to the public, make available, broadcast, create derivative works from, publicly perform (including on a through-to-the-audience basis), and otherwise use and exploit (collectively, “Use”) any Netmix Content without Netmix’s prior authorization. You may not use any User Content or Third-Party Content without the prior authorization of the owners of such content, notwithstanding any functionalities of the Service. Netmix does not guarantee access to any particular User Content, Netmix Content, or Third-Party Content. Netmix or its licensors, and the owners of User Content and Third-Party Content, may change, delete, or prohibit access to Netmix Content, User Content or Third-Party Content, as the case may be, or schedules of any of the foregoing, at any time with or without notice. You understand that by using the Service, you may encounter User Content, Third Party Content, and Netmix Content that you may find offensive or objectionable and that might constitute Objectionable Content as defined in our Acceptable Use Policy. Netmix is not the publisher of, nor responsible for, any Objectionable Content made available in User Content or Third-Party Content, and to the fullest extent permitted by law, Netmix will have no liability to you with respect to Objectionable Content you access via the Service. User Content, Third Party Content, and Netmix Content may be transmitted with a variety of copy protection mechanisms. These copy protection mechanisms may be designed to protect the copyright interests of Netmix or its licensors or third-party transmitting entities, as applicable. These copy protection mechanisms may limit or prevent the ability of the Service to play Netmix Content, User Content, or Third-Party Content. You agree that Netmix will have no liability to you or any third party with regard to your ability to access, listen to, or otherwise use, any Netmix Content, User Content, or Third-Party Content due to a copy protection mechanism. You may not remove or attempt to circumvent any copyright protection mechanisms in any Netmix Content, User Content, or Third-Party Content without express authorization of the owner of such content or their authorized agent, or as otherwise permitted by law, and any attempts to do so may subject you to liability.
c. Marks. Netmix trademarks, service marks, and logos (the “Netmix Trademarks”) used and displayed on the Service are Netmix’s registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Netmix Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage Netmix or the applicable third-party, Netmix’s or a third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without Netmix’s prior express written consent. All goodwill generated from the use of any Netmix Trademark will inure solely to Netmix’s benefit.
d. Restrictions. The Service, Netmix Content, and Netmix Trademarks, including all intellectual property rights therein, are the sole and exclusive property of Netmix, its licensors, or third parties. Netmix hereby reserves all rights not expressly granted to you in this Section 4. Accordingly, nothing in these Terms or on the Service will be construed as granting to you, by implication, estoppel or otherwise, any additional license rights in and to the Service or any Netmix Content or Netmix Trademarks located or displayed therein. Except for the right to access Third Party Content through the Service, no rights are hereby granted to you with respect to such Third-Party Content or Third-Party Trademarks.
7. User Content and Other Content.
a. Definition. This Section governs any material that you post, send or transmit (collectively, “Post”) through the Service, to the extent allowed by Netmix, including, by way of example and not limitation, photographs, graphics, images, and text (collectively, “User Content”) and other activities that Netmix may take with respect to materials accessed through the Service.
b. Licenses to User Content. By posting User Content to or through the Service, you hereby grant to Netmix (and Netmix’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, perpetual, assignable, sublicensable, revocable, royalty-free, fully paid-up license throughout the world to Use all User Content you Post to or through the Service, through any media and formats now known or hereafter developed, in connection with the Service or our business.
c. You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the owner of or are not fully authorized to grant rights throughout the universe in all elements of the User Content you intend to Post to the Service. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms; (ii) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights or any other rights of any party in any territory throughout the universe; (iii) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
d. Acceptable Uses and Objectionable Content. We want Users to have an enjoyable experience when they use the Service. To facilitate that, we have adopted an Acceptable Use Policy, which is hereby incorporated by reference into these Terms. You are required to comply with the Acceptable Use Policy when Posting any User Content to the Service. The Posting of any Objectionable Content, as defined in the Acceptable Use Policy, may subject you to third party claims and none of the rights granted to you in these Terms may be raised as a defense against any third-party claims arising from your Posting of Objectionable Content. If you encounter any Objectionable Content on the Service, then please immediately email Netmix at [email protected]. You acknowledge and agree that Netmix provides you with the ability to report Objectionable Content as a courtesy, and Netmix has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to us. However, Netmix in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content on the Service, including, but not limited to, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content Posted on the Service, and/or reporting the User to law enforcement or other governmental authorities, either directly or indirectly.
e. Monitoring. Netmix has the right, but not the obligation, to monitor the Service, and may remove or restrict access to any User Content, Third Party Content or Netmix Content from the Service for any reason in its sole discretion at any time, without notice and without any liability to you. You acknowledge that Netmix may establish general practices and limits concerning use of the Service without notice to you, including, without limitation, the maximum period of time that User Content or Netmix Content will be retained by the Service and the maximum storage space that will be allotted on Netmix’s servers on your behalf. You acknowledge and agree that Netmix may preserve any content and may also disclose any content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process, applicable laws or government requests; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Netmix, its Users and the public. You understand that Netmix does not guarantee any confidentiality with respect to User Content and will have no responsibility or liability for User Content that is deleted from the Service.
8. Special Notice for International Use; Export Controls.
Plugins and other services available in connection with the Service and the transmission of applicable data, if any, may be subject to United States export controls. No plugins or other services may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. You download and use the software at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. Netmix makes no representation that the Service is appropriate or available for use in any particular location.
9. Advertisements and External Sites.
a. Advertisements. Netmix may display advertisements for the goods and services of third parties or other promotional materials on the Service. Your dealings with, or participation in, promotions of any third-party advertisers on the Service, are solely between you and such third party, and your participation is subject to any terms and conditions associated with that advertisement or promotion. Netmix does not endorse or represent such third parties, and by using the Service, you agree that Netmix is not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or the presence of such third parties on the Service.
b. External Sites. The Service may contain links to or the ability to share information with or by third-party websites (“External Sites”). Netmix does not endorse any External Sites or the content made available on such External Sites. All External Sites and any content thereon is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such content located on such External Sites. Netmix is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer and connected devices from viruses and other destructive programs. If you decide to access any External Sites, purchase any content from External Sites or subscribe to services offered by such External Site, then you do so at your own risk. You agree that Netmix will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.1
0. Feedback.
While we are continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to your interests, feedback, comments, and suggestions. If you choose to contribute by sending Netmix or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, audiovisual, games, or other types of content), promotions, strategies or product/feature names or any related documentation, artwork, computer code, diagrams or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstanding can be avoided. Accordingly, by sending Feedback to Netmix, you agree that:
a. Netmix has no obligation to review, consider or implement your Feedback, or to return to you all or part of any Feedback for any reason;
b. Feedback is provided on a non-confidential basis, and Netmix is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
c. You irrevocably grant Netmix and its successors and assigns perpetual and unlimited permission to Use the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
11. Dispute Resolution.
a. General. In the interest of resolving disputes between you and Netmix in the most expedient and cost-effective manner, you and Netmix agree that any dispute arising out of or in any way related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NETMIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
b. Exceptions. Notwithstanding Section 9.a above, nothing in these Terms will be deemed to waive, preclude or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue enforcement action through the applicable federal, state or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Netmix will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Netmix. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail (“Notice”) or, if a postal address is not available, to the last known email address for such party. Netmix’s address for Notice is: Netmix, LLC, 310 Roxbury Place, Arden, NC 28704 Attn: Disputes. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Netmix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Netmix must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by Netmix prior to the selection of an arbitrator, then Netmix will pay you the highest of the following: (A) the amount awarded by the arbitrator, if any; or (B) the last written settlement amount offered by Netmix in settlement of the dispute prior to the arbitrator’s award. Notwithstanding anything in this Agreement to the contrary, and for the avoidance of doubt, the arbitrator can award injunctive relief as a remedy in any arbitration arising under this Section 11.
e. No Class Actions. YOU AND NETMIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Netmix agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
f. Enforceability. If any part of this Section 10 is found to be unenforceable or if the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 will be null and void.
12. Limitation of Liability and Disclaimer of Warranties.
THE FOLLOWING TERMS IN THIS SECTION 10 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:
a. NETMIX, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS (COLLECTIVELY, THE “NETMIX PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS OR RELIABILITY THEREOF. THE NETMIX PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
b. THE NETMIX PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO NETMIX PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
c. THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE NETMIX PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
d. IN NO EVENT WILL ANY NETMIX PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT THEREON, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH NETMIX PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETMIX’S LIABILITY, AND THE LIABILITY OF ANY OTHER NETMIX PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US AND U.S. $100.
13. Third Party Disputes.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY RADIO STATION, WORDPRESS OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE NETMIX PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
14. Indemnification
To the fullest extent permitted by law, you agree to indemnify and hold Netmix, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Netmix Content; (b) your User Content; or (c) your violation of these Terms. Netmix will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks indemnification from you upon becoming aware of it, but if Netmix is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding Netmix’s inability to contact you in a timely manner. Netmix reserves the right, in its sole discretion, to assume the exclusive defense and control of any matter that is subject to indemnification under this Section at your sole expense. In such case, you agree to cooperate with any reasonable requests to assist Netmix’s defense of such matter.
15. Term and Termination of these Terms.
a. Term. As between you and Netmix, the Term of these Terms commences as of your first use of the Service and continues until the termination of these Terms by Netmix or until you stop using the Services.
b. Termination. Netmix reserves the right, in its sole discretion, to restrict, suspend or terminate these Terms and your access to all or any part of the Service at any time without prior notice or liability if you breach any provision of these Terms or violate the rights of any third party. Netmix may further terminate these Terms immediately for any other reason with or without notice to you, using the email address associated with your Account credentials. Netmix reserves the right to change, suspend or discontinue all or any part of the Service at any time without prior notice or liability.
c. You understand and acknowledge that, after any termination of these Terms, (i) we will have no further obligation to provide the Service to you; and (ii) all licenses and other rights granted to you in these Terms will immediately cease. Netmix is not liable to you or any third party for termination of the Service or termination of your use of the Service. Upon any termination or suspension, you may no longer access any information (including your User Content) that you have Posted to the Service or that is related to your Account. Furthermore, Netmix will have no obligation to maintain any information stored in our database related to your Account or to forward any information to you or any third party. You acknowledge and agree that Netmix will not be required to delete any of your User Content that may be stored on any servers or other backup media owned or controlled by or on behalf of Netmix following the termination of your Account. Sections 1.a, 1.b.,1.c, 1.d, 1.e, 2.b, 2.c, 2.d, 2.e, 3, 4, 5.b, 6.b, 6.c, 6.d, 7, 8, 9, 10, 11, 12, 13, 14, 15.b, 15.c, 16, 17, 18, 19, 20, and all defined terms used therein will survive the termination of these Terms indefinitely.
16. Consent to Electronic Communications.
By using the Service, you consent to receive certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
17. Miscellaneous.
The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. These Terms, the Copyright Policy and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Netmix regarding your use of and access to the Service, and, except as expressly permitted in Section 1.a above, may be amended only by a written agreement signed by you and an authorized representative of Netmix. In addition to the foregoing, for Users located in the EEA, you acknowledge that certain aspects of your use of the Service may be governed by additional policies, including Netmix’s Cookie Policy and Privacy Policy. The failure to require performance of any provision of these Terms will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms are for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of these Terms are held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Netmix as a result of these Terms or use of the Service. You acknowledge and agree that Apple, Inc. (“Apple”), Apple’s subsidiaries, and certain other third parties with whom Netmix does business, are third party beneficiaries of these Terms and that Apple and/or such third parties will have the right to enforce these Terms against you as a third-party beneficiary thereof. The English language version of these Terms is the version that governs your use of the Service and in the event of any conflict between the English language version and a translated version, the English language version will control. You expressly agree that these Terms and all ancillary documents be drafted solely in English.
18. Contact Us.
If you have any comments, complaints, suggestions about these Terms or the Service or otherwise would like to contact us, then you can contact Netmix by email at [email protected], or by U.S. post at Netmix c/o 310 Roxbury Pl, Arden, NC 28704.
19. Copyright, Takedown Requests, & the DMCA
Netmix respects the intellectual property of others and requires that users of our Services do the same. We have a policy that includes the removal of any infringing materials from the Services and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers. If you believe that anything on our Services infringes a copyright that you own or control, you may notify by contacting [email protected] with the subject line: Copyright Claim or sending your request by mail to:
Netmix LLC, 310 Roxbury Pl, Arden, NC 28704 Attn: Copyright Claims
Please note that if you knowingly misrepresent that any activity or material on our Service is infringing, you may be liable to Netmix for certain costs and damages.
If we remove user-generated content in response to a copyright or trademark notice, we will notify the user via their registered email. If you are a user who believes your user-generated content was wrongly removed due to a mistake or misidentification, you can send a counter-notification to our Copyright Compliance Manager (contact details above). Counter notifications must adhere to the requirements as specified under 17 U.S.C. §512(g)(3).
20. Open-Source Software.
The App contains certain open-source software. Each item of open source software is subject to its own applicable license terms, which can be found at http://Netmix.com/support/licensing/ios/ and http://Netmix.com/support/licensing/android/.
NOTICE REGARDING WORDPRESS.
You acknowledge that these Terms are between you and Netmix only, not with WordPress, and WordPress is not responsible for Radio Station or the content thereof. You agree to comply with any applicable third-party terms, when using Radio Station.
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