Terms of Service
Last Modified: October 2, 2020
1. Acceptance of the Terms of Service.
(a) These terms of service are entered into by and between You and Mixy LLC, a Texas limited liability company (“Company,” “we,” or “us”). The following terms and conditions (collectively, “Terms of Service”) govern your access to and use of https://www.hellomixy.com, including any content, functionality, and services offered on or through https://www.hellomixy.com (the “Website”), whether as a guest or a registered user.
(c) This Website is offered and available to users who are 18 years of age or older, reside in the United States or any of its territories or possessions, and have legal capacity to purchase promotional gift cards from our affiliated brands offered on the Website. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website, and you are not eligible to create an account. If we later determine that you have inaccurately represented your age, then we reserve the right to suspend, cancel, or terminate your account
2. Changes to the Terms of Service
(a) We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website.
(b) Your continued use of the Website following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page each time you access this Website or use our Services so you are aware of any changes, as they are binding on you.
3. Accessing the Website, Creating an Account, and Account Security.
(a) We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
(b) You are responsible for both:
- Making all arrangements necessary for you to have access to the Website.
- Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Service and comply with them.
(d) If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity (other than as permitted by applicable laws). You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You agree not to hold us liable for any unauthorized access of the Website through your account resulting from your acts or omissions, including your negligence.
(e) Your account is non-transferrable. You cannot sell, combine, or otherwise share it with any other person. Any violation of these Terms of Service, including, without limitation, failure to maintain updated and correct information about your account (e.g., valid credit card information) will cause your account to fall out of good standing and we may cancel your account in our sole discretion. If your account is cancelled, you may forfeit any pending, current, or future Mixy Services (defined below) and associated opportunities to claim Promotional Gift Cards (defined below) with Brands (defined below), and any other forms of unredeemed value in your account without notice. Upon termination, the provisions of these Terms of Service that are, by their nature, intended to survive termination (e.g., any disclaimers, all limitations of liability, and all indemnities) shall survive. We also reserve the right to change or discontinue any aspect or feature of our services or the Site, including, without limitation, requirements for use. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
4. Mixy Services, Purchase of a Mixy and Google ReCaptcha, and Claiming Promotional Gift Cards.
(b) Order Acceptance and Cancellation. The purchase price for the Services is subject to change at any time by us without your consent or notice to you. You agree that your order for the Services is an irrevocable offer to buy, under these Terms, the Services listed in your order. All orders must be accepted by us or we will not be obligated to sell Services to you. We may choose not to accept any orders in our sole discretion for any reason. Payment must be made by you to us in an acceptable form indicated by us during the checkout process. By paying with a credit card, you represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are the cardholder or duly authorized to use such credit card for the purchase of the Services, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. Once your order is processed, you will be redirected to a separate page confirming your order was successfully processed. We may also additionally, in our discretion, send an email confirming your order was successfully placed and processed. Acceptance of your order and the formation of the contract of sale between us and you will not take place unless and until you have received your order confirmation through the means identified herein.
(c) When you buy a Mixy Service (and the purchase is verified by us in accordance herein), you will receive the opportunity to select and claim the quantity of $20 promotional gift cards (each, a “Promotional Gift Card”) agreed to in the purchase process each from different brands of your choosing from our network of affiliated merchants (each, a “Brand”), subject to these Terms of Service.
(d) Purchase of the Services will subsequently grant you access to a special page on our Website (the “Brand Catalogue”) which permits you to begin selection of available Promotional Gift Cards with our available Brands. There may be a limited number of Promotional Gift Cards available for each Brand. Accordingly, you acknowledge and understand that purchasing the Services does not guarantee you to claim a Promotional Gift Card with any particular Brands available on or off the Brand Catalogue. The claiming of a Promotional Gift Card with a particular Brand is subject to availability of the limited supply of such Promotional Gift Cards for such Brand, as indicated on the Brand Catalogue, and subject further to these Terms.
(e) To claim a Promotional Gift Card with your purchased Mixy Service, first select a Promotional Gift Card for a Brand by hovering your mouse on the Brand’s icon in the Brand Catalogue and clicking the “CLAIM” button. This action may prompt you to further confirm whether or not you are finalizing your selection to receive a Promotional Gift Card with such Brand. We will notify you whether the desired Promotional Gift Card was successfully claimed. You may only claim a Promotional Gift Card subject to its availability, which may be limited, and provided your purchased Mixy Service still has remaining opportunities. Each claimed Promotional Gift Card shall be considered a single redemption of the purchased Mixy Service and generate a one-time electronic gift card code which is subsequently redeemable with the selected Brand for a $20 value upon checkout with such Brand. We will notify you (either by prompt or made available in your account) how many Promotional Gift Cards you have claimed and how many more opportunities remain to claim additional Promotional Gift Cards.
(f) The purchase of one Mixy Service entitles you to claim up to a maximum of the quantity of Promotional Gift Cards specified in your order (subject to availability and within the expiration period described herein). Once all Promotional Gift Cards have been claimed: (i) you may not claim any more Promotional Gift Cards with that Mixy Service, (ii) the purchased Mixy Service shall be considered complete and terminated, and (iii) our obligations to you with respect to such purchased Mixy Service shall immediately cease thereby. You may only claim a maximum of one (1) Promotional Gift Card from each Brand, regardless of how many times you purchase the Services. For avoidance of doubt, after claiming a Promotional Gift Card with Brand X, you cannot then claim a second Promotional Gift Card with Brand X with the purchase of a second Mixy Service.
(g) You have ninety (90) days from the date of purchase of the Services to claim all Promotional Gift Cards associated with that purchased Mixy Service. A Promotional Gift Card, once claimed, is final. Claimed Promotional Gift Cards are not returnable, non-exchangeable, and non-refundable for any reason.
(h) Expiration of a Purchased Mixy Service. You agree that any unused portion of a purchased Mixy Service shall expire and become null and void upon expiration of ninety (90) days from the date of original purchase of the Mixy Service. Accordingly, you acknowledge and agree that upon expiration of a Mixy Service, you will lose any unclaimed or unused portion and further not be entitled to any refund, credits, exchanges, or other deferment of any unused and expired portion of a purchased Mixy Service.
5. Brand Availability.
(a) Our vision is to partner with select brands and merchants to promote them for consumer shopping. Accordingly, we frequently rotate Brands within our Brand Catalogue, as often as on a weekly basis, to present a variety of Brands to you and to promote our purposes. You acknowledge and agree that we reserve the right to change, alter, modify, and remove Brands from our network and Brand Catalogue at any time without your consent or prior notice to you. We reserve the right to determine and change the number of Brands in our Brand Catalogue at any time, which may have the unintentional, incidental consequence of limiting the number of Brands available for claiming Promotional Gift Cards. A rotation of a Brand resulting in its removal from our Brand Catalogue does not affect a Promotional Gift Card that you have already claimed from that Brand prior to its removal from the Brand Catalogue.
(b) Any attempt, direct or indirect, by you to create multiple accounts for the purpose of exploiting the limitations of Promotional Gift Cards described herein shall constitute an immediate and material breach of these Terms of Service.
6. Our Role in the Promotional Gift Cards.
(a) A Mixy Service is not a “gift card” itself, as that term is defined under the federal Credit Card Accountability Responsibility and Disclosure Act of 2009 (as amended and modified, along with its corresponding rules and regulations, collectively the “CARD Act”) or any state law counterpart. Mixy is merely a platform and a Mixy Service is merely an opportunity to obtain “promotional gift cards” (as defined by the CARD Act) from Brands. Accordingly, we are not an “issuer” as that term is defined under the federal CARD Act and any state law counterpart, of any of the Promotional Gift Cards presented on the Website or obtainable as part of the Services. The Brands associated with offered Promotional Gift Cards are the issuers of such Promotional Gift Cards, and consequently are responsible to comply with all requirements of the CARD Act. The Company does not create, issue, or own any of the Promotional Gift Cards. Instead, the Company merely facilitates the Brand’s issuance of a Brand’s Promotional Gift Cards—that the Brands make available to us through the Website—from the Brand to you. All Promotional Gift Cards are created and issued to you directly by the Brand, and the electronic code generated by a Promotional Gift Card is generated, maintained, and redeemable by and through the respective Brands, not by us. The Brands have represented and warranted to us that the Promotional Gift Cards are deemed as “promotional gift cards” under the CARD Act, and we are offering the Promotional Gift Cards under that presumption.
(b) We do not make any representations or warranties with respect to usability, accuracy, or expiration of the Promotional Gift Cards once claimed from our Website. We further disclaim any representations and warranties with regard to compliance of the Promotional Gift Cards or by the Brands with the CARD Act or any state law counterpart, including whether or not the Promotional Gift Cards are classified as “promotional gift cards.” We are not responsible for the quality of goods or services you acquire from a Brand or otherwise procure using a Promotional Gift Card claimed through a Mixy Service. Any issues with the Promotional Gift Cards, including inaccuracy in stated value, usability, or expiration, and any issues with the good or services subsequently acquired from use of a Promotional Gift Card, must be addressed with the respective Brand directly and not with us.
(c) We are not a party to any transaction that you may enter into with a Brand as a result of your claiming a Promotional Gift Card on the Website. If a Brand were to go out of business or go into bankruptcy prior to your use of all the value on their Promotional Gift Card, you understand that your sole and exclusive recourse with respect to the unused value of the Promotional Gift Card for that particular Brand is with the Brand in question (and not us).
(d) You agree to indemnify, defend, and hold harmless the Company from any claims, demands, suits, causes of action, losses, penalties, fines, judgments, expenses, costs, fees (including attorney’s fees and costs) asserted by you or a third party resulting from the use of a Promotional Gift Card (including, but not limited to, the inactivity or expiration of the Promotional Gift Card) after a Promotional Gift Card is claimed from our Website.
7. Intellectual Property Rights and Trademarks.
(a) The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
(b) These Terms of Service permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
- If we provide social media features with certain content, including of Brands, you may take such actions as are enabled by such features.
(c) You must not:
- Modify copies of any materials from this Website.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
(d) You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website. If you wish to make any use of material on the Website other than that set out in this section, please address your request to: [email protected]
(e) If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Service, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
(f) The Company name, the terms “Mixy,” “Mixy Service,” the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company.
(g) All other names, logos, product and service names, designs, and slogans that appear on this Website, including the Brands and the Promotional Gift Cards, are the trademarks of their respective owners. Reference to any products, services, Brands or other merchants or retailers available on our Website does not constitute or imply any endorsement, sponsorship, or recommendation of such by the Company.
8. Prohibited Uses.
(a) You may use and access the Website, and purchase and use the Services, only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Website:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.
(b) Additionally, you agree not to:
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Service, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Website.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Website.
9. Monitoring and Enforcement; Termination.
(a) We have the right to:
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
- Terminate or suspend your access to all or part of the Website for [any or no reason, including without limitation,] any violation of these Terms of Service.
(b) Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
(c) However, we do not undertake to review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
10. Copyright Infringement. If you believe that anything displayed on our Website violates your intellectual property rights, please contact us to provide a notice of copyright infringement. It is the policy of the Company to terminate the user accounts engaging in infringement of a third party’s intellectual property rights.
11. Reliance on Information Posted.
(a) The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
(b) This Website includes content provided by third parties, including materials provided by Brands, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not reflect the opinion of or operate as an endorsement by the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
12. Changes to the Website. We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
14. Linking to the Website and Social Media Features.
(a) You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
(b) This Website may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain content on this Website.
- Send emails or other communications with certain content, or links to certain content, on this Website.
- Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
(c) You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Website other than the homepage.
- Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Service.
(d) You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
(e) We may disable all or any social media features and any links at any time without notice in our discretion.
15. Links from the Website. If the Website contains links to other sites and resources provided by third parties, including by Brands, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
16. Geographic Restrictions.
The owner of the Website is based in the State of Texas in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website, or purchase of the Services, may not be legal by certain persons or in certain countries. If you access the Website or purchase the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws of the governing jurisdiction.
17. Disclaimer of Warranties.
(a) You understand that we cannot and do not guarantee or warrant that links displayed on our Website directed to third party websites (including, without limitation, websites of the Brands or social media pages) will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OBTAINED THROUGH THE WEBSITE, OR ON ANY WEBSITE LINKED TO IT.
(b) YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
(c) TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
(d) THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. Limitation on Liability.
(a) TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, THE SERVICES, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
(b) The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct.
(c) THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
19. Indemnification. You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Service or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Service, or your use of any information obtained from the Website.
20. Governing Law and Jurisdiction.
(a) All matters relating to the Website and these Terms of Service, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
(b) Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the Website shall be instituted exclusively in the federal courts of the United States or the state district courts of the State of Texas, in each case located in Collin County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
21. Waiver and Severability.
(a) No waiver by the Company of any term or condition set out in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
(b) If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
23. Force Majeure. The Company shall be excused from performance under these Terms of Service to the extent it is delayed or prevented from performing, as a result of any event or series of events caused beyond the Company’s reasonable control (as determined by the Company in its sole discretion), including, but not limited to: (i) weather conditions or elements of nature or acts of god, (ii) acts of war, terrorism, insurrection, riot, political unrest, (iii) labor strikes, (iv) embargoes, (v) error or disruption to computer hardware, networks or software failures or of third party providers, (vi) governmental orders or regulations, declarations of disaster or emergency, (vii) outbreaks, pandemics, or epidemics, or (viii) any other causes beyond the Company’s reasonable control.
24. Your Comments and Concerns. This website is operated by Mixy LLC. All notices of copyright infringement claims should be sent to [email protected] All other feedback, comments, requests for technical support, and other communications relating to the Website or the Services should be directed to: [email protected]