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Terms Of Service

Published: October 2, 2024

Effective: October 12, 2024

Introduction

Interactive Memories, Inc. (together with its corporate affiliates, “Mixbook,” “we,” “us,” “our”) provides its online, collaborative publishing services to you through its website located at www.mixbook.com (the “Site”), its mobile application (the “App” or “Mixbook App”), and through its related services (collectively, such services, including any new features and applications, the Site and the App, the “Service(s)”), subject to these Terms of Service (“Terms of Service” or “Agreement”). By accessing or using the Service, you (the “User”) agree that you have read, understand and agree to be bound by these Terms of Service (“Terms of Service” or “Agreement”), whether or not you are a registered member ("Member") of the Service and whether or not you submit any content, text, information, photos, video, audio, images or graphics through the Service (collectively the "Member Content"). We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Service at any time without notice. If we do this, we will post the changes to these Terms of Service on our Site and will indicate at the top of the Terms of Service the date they were last revised. Any new Terms of Service are effective upon posting and your continued use of the Service after such posting constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service. It is your responsibility to regularly review the Terms of Service to determine if there have been changes.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IN PARTICULAR, THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MIXBOOK ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

Eligibility

By using the Service, you represent and warrant that you are thirteen (13) years old or older. You must be thirteen (13) years of age or older to register as a member of the Service or access or use the Service. If you are under the age of 13, you must use an account created by a parent, guardian or teacher, and you must have the explicit permission of a parent or guardian to use the Service. Membership in and access to the Service is void where prohibited.

Term

This Agreement shall remain in full force and effect while you use the Services or are a Member. You may delete your account and end your membership at any time, for any reason by contacting support@mixbook.com. Mixbook may terminate your membership for any reason, at any time. Even after termination, your obligations under this Agreement will remain in effect. You understand that termination of this Agreement and your account may involve deletion of your Mixbook information from our live databases as well as any Member Content that you have uploaded to the Service or created on the Service using your account. You agree that Mixbook will not have liability whatsoever to you for any termination of your account or related deletion of your information or Member Content.

Fees

You acknowledge that Mixbook reserves the right to charge for Services and to change our fees from time to time in its discretion, upon posting such policy on the Service. Thereafter, upon using our Services, you will be responsible for the payment of any applicable fees as set forth on the Service.

Conditions Of Sale

Eligibility And Credit Card Terms

To order any books or other products, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction. You will be required to give us a valid credit card number (VISA, MasterCard, American Express or any other issuer then accepted by us) and associated payment information at the time you order books or any other products hereunder, including all of the following:

  • Your name as it appears on the card
  • The credit card type
  • The date of expiration of your credit card
  • Billing address
  • Any activation numbers or codes needed to charge your credit card.

Mixbook does not accept cash, checks or any other payment form, although it reserves the right to change this policy in the future. Your credit card issuer agreement governs your use of your designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. You agree that no additional notice or consent is required before Mixbook invoices the credit card for all amounts due and payable. By providing Mixbook with your credit card number and associated payment information, you agree that Mixbook is authorized to immediately invoice your account for all fees and charges due and payable to Mixbook as a result of your purchase of any books or other products. You agree to immediately notify Mixbook of any change in the credit card used for payment hereunder or in any associated information. Mixbook reserves the right, at any time, to change its prices and billing methods for books and other products sold, either immediately upon posting on the Service or by e-mail delivery to you.

Mixbook Credit

Any credit issued to you by Mixbook has no cash value and is not exchangeable as cash. Mixbook credit may be redeemed towards future purchases using your Mixbook account, and your Mixbook credit will be automatically applied in the checkout process. You can view your Mixbook credit under your My Account section.

Fees And Charges

You agree to pay all fees and charges incurred in connection with your orders and purchases (including any taxes imposed on your orders and purchases, including, but not limited to, applicable shipping fees, sales, use, custom or value-added taxes) at the rates in effect when the charges were incurred. Fees charged for goods and services may change at any time without advance notice. Mixbook may automatically charge and withhold such fees and charges for orders to be delivered to addresses within any jurisdictions that it deems is required. When you order books or other products for overseas delivery, shipments may be subject to import duties and taxes, which are levied when the package with the books or products arrives at the destination that you specified. Any charges for customs clearance shall be borne by you, as Mixbook has no control over such charges and cannot foresee the amount charged (if any). You agree that you are the importer of record for goods and services you order and you shall comply with all laws and regulations of the destination country.

Disputes

You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Such notification shall be sent to the following address: Mixbook Customer Service, 2000 Broadway St., Redwood City, CA 94063, or to support@mixbook.com.

Returns

All sales are subject to Mixbook’s then-current return policies, as posted on the Returns page.

Password And Account Security

When you sign up to become a Member, you will be asked to choose a unique password. It is your responsibility to maintain the confidentiality of your password. You agree not to use or attempt to use the account, email address or password of any other Member at any time. You are solely responsible for all activity by anyone using your account and/or password. If you suspect unauthorized use of your account or your password, please contact us at support@mixbook.com.

Member Conduct

You understand that the Service is available for your personal, non-commercial use only. You represent and warrant that:

  • no Member Content of any kind submitted by your or through your account will violate or infringe upon the safety or rights of any third party, including but not limited to copyright, trademark, privacy or other personal or proprietary rights or contain libelous, defamatory or otherwise unlawful or illegal material; and
  • you have obtained the written consent, release and/or permission of every identifiable individual who appears in Member Content such individual’s likeness, for purposes of using and otherwise exploiting the Member Content in the manner contemplated by this Agreement, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request).

You further agree not to scrape, harvest or collect email addresses or other contact information of Members from the Service by electronic or other means for any commercial purpose, for sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Service or for any purpose. You further agree that you may not use the Service in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Service. In addition, you agree not to use the Service to:

  • upload, post, email, transmit or otherwise make available any Member Content that we deem, in our sole discretion, to be harmful, threatening, abusive, deceitful, misleading, harassing, vulgar, offensive, obscene, hateful, or racially, ethnically or otherwise objectionable;
  • impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
  • upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, bulk email, advertisements, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
  • upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • intimidate or harass another; or
  • create a false identity on this Service.

Proprietary Rights

All content on the Service, including but not limited to design, text, graphics, templates, layouts, tools, other files, and their selection and arrangement (the "Content"), and all associated patent, trademark, service mark, trade dress, trade secret, copyright, and other intellectual property rights, are the property of Mixbook or its licensors. All rights reserved. The Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without Mixbook's prior written permission under a separate agreement. You may download or print a copy of any portion of the Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. You may not republish Content on any Internet, Intranet or Extranet site or incorporate any of the Content in any other database or compilation other than Content with share features offered on our website. Any other use of the Content is strictly prohibited.

All trademarks, logos, trade dress and service marks on the Service are the sole property of Mixbook or its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Mixbook under a separate agreement.

The technology and software underlying the Service or distributed in connection therewith is the property of Mixbook (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Mixbook.

Member Content

You are solely responsible for Member Content you submit. You understand and agree that Mixbook may, but is not obligated to, review and delete or remove or filter any Member Content that in the sole judgment of Mixbook violates this Agreement or for any other reason. You are solely responsible for your Member Content and continue to own and retain all rights in your Member Content. You hereby grant, and you represent and warrant that you have the right to grant, Mixbook and its designees a fully paid, worldwide, non-exclusive right and license to use, reproduce and otherwise engage in any other actions with respect to your Member Content for the purpose of providing the Services to you. For example, when you place an order for a book, product, digital representation of a book, short-form content or film, we will prepare, manipulate (if necessary), and transmit the Member Content for production, packaging and shipment - or, as applicable, online delivery - of such book or product.

You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in Member Content you submit to use such individual’s likeness, for purposes of using and otherwise exploiting the Member Content you submit in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such Member Content.

Copyright Policy

We respect the intellectual property rights of others. If you are a copyright owner or an agent thereof and believe that any Content or any material on the Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. §512(c)(3) for further detail):

  • A physical or electronic signature of the owner of the right that is allegedly infringed or a person authorized to act on their behalf;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of the copyrighted works;
  • Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material on the Service;
  • Information reasonably sufficient to permit us to contact the owner or agent, such as an address, telephone number, and email address;
  • A statement that the owner or agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is:

Copyright Claims Mixbook 2000 Broadway St. Redwood City, CA 94063 Email: copyright@mixbook.com Telephone: +1 (855) 649-2665

Links To Other Web Sites and Services

The Service may contain links to other websites. Mixbook is not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by us. In addition, the Service may allow you to connect to third-party services (for example, to transmit Member Content from the third-party service to the Mixbook Service). Inclusion of any linked website or third-party service on the Service does not imply approval or endorsement of the linked website or service by Mixbook. If you decide to access these third-party websites or services, you do so at your own risk, and you may be subject to third-party terms and conditions (“Third-Party Terms”). For example, if you choose to transmit Member Content from Google Photos to the Service, you agree to Third-Party Terms such as the Google APIs Terms of Service, the current version of which is available at https://developers.google.com/terms/.

Social Networking Services

We may permit you to log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter ("Social Networking Services"), and we may ask you to authenticate, register for or log into Social Networking Services through their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with these Terms of Service. For more information about the implications of activating these Social Networking Services and Mixbook’s use, storage and disclosure of information related to you and your use of such services within Mixbook (including your friend lists and the like), please see our Privacy Policy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Mixbook shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Mixbook is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Mixbook is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Mixbook enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

Service-Specific Additional Terms - The Mixbook App

Before using the Mixbook App, we may require you to install the latest version of the App on your mobile device, create an account, provide your account details as requested, and meet certain hardware and connectivity requirements that may change over time. You are responsible for any internet fees or mobile carrier charges incurred when accessing or using an App. If you uninstall the App from your device, you may lose access to some or all of its features. While we make reasonable efforts to accurately represent the attributes of any product images you order through an App - including their colors - the actual colors you see depend on your mobile device, and we cannot guarantee that your device will display these colors correctly.

Member Disputes

You are solely responsible for your interactions with other Mixbook Members. Mixbook reserves the right, but has no obligation, to monitor disputes between you and other Members.

Privacy

Mixbook cares about the privacy of its Members. View Our Privacy Policy, which is incorporated into this Terms of Service.

Disclaimers

MIXBOOK IS NOT RESPONSIBLE FOR ANY MEMBER CONTENT, INCLUDING MEMBER CONTENT THAT VIOLATES THIS TERMS OF SERVICE OR IS OFFENSIVE, INCORRECT OR INACCURATE, WHETHER SUCH CONDITION IS CAUSED BY USERS OF THE SERVICE, MEMBERS OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. MIXBOOK IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OR MEMBER OF THE SERVICE. YOU UNDERSTAND THAT THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME. MIXBOOK DOES NOT ENDORSE, GUARANTEE, REPRESENT OR WARRANT THE BOOKS, PRODUCTS, CONTENT, ADVERTISEMENTS, OR ANY MEMBER CONTENT ON THE SERVICE. MIXBOOK ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, UNAVAILABILITY, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER OR MEMBER COMMUNICATIONS. MIXBOOK IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEB SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS AND/OR MEMBERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE INTERNET AND/OR IN CONNECTION WITH THE SERVICE. UNDER NO CIRCUMSTANCES WILL MIXBOOK BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE'S USE OF THE SERVICE, ANY CONTENT POSTED ON THE SERVICE OR TRANSMITTED TO MEMBERS, OR ANY INTERACTIONS BETWEEN USERS OF THE SERVICE, WHETHER ONLINE OR OFFLINE. THE SERVICE AND THE CONTENT ARE PROVIDED "AS-IS" AND "AS AVAILABLE," AND MIXBOOK DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MIXBOOK CANNOT GUARANTEE AND DOES NOT PROMISE AVAILABILITY OF THE SERVICE OR ANY SPECIFIC RESULTS FROM USE OF THE SERVICE. THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

Limitation On Liability

TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL MIXBOOK BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST DATA OR PROFITS, ARISING FROM YOUR PURCHASE AND USE OF BOOKS OR PRODUCTS OR YOUR USE OF THE SERVICE, EVEN IF MIXBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MIXBOOK’S LIABILITY TO YOU FOR ANY CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF THE AMOUNT PAID, IF ANY, BY YOU TO MIXBOOK FOR THE SERVICE DURING THE TERM OF MEMBERSHIP OR ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU.

IF YOU ARE A MEMBER OR USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

a. Agreement to Arbitrate

This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Mixbook, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Mixbook are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND MIXBOOK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MIXBOOK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

c. Pre-Arbitration Dispute Resolution

Mixbook is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@mixbook.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Mixbook should be sent to Mixbook Legal, 2000 Broadway St., Redwood City, CA 94063 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Mixbook and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Mixbook may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Mixbook or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Mixbook is entitled.

d. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Mixbook and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Mixbook agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Mixbook will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Mixbook will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Mixbook will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.

h. Future Changes to Arbitration Agreement

Notwithstanding any provision in this Terms of Service to the contrary, Mixbook agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Mixbook written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

Governing Law And Venue

The Terms of Service and any dispute about or involving the Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you also agree to the exclusive jurisdiction and venue of the courts of the state and federal courts of Santa Clara County, California and waive all claims of lack of personal jurisdiction and forum non conveniens. Any cause of action by you with respect to the Service must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

Indemnity

You agree to indemnify and hold harmless Mixbook, its subsidiaries, affiliates, officers, agents, partners and employees, from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your Member Content, your use of the Service in violation of this Agreement or any Third-Party Terms, or your violation of any law or the rights of a third party.

Other

These Terms of Service constitute the entire agreement between you and Mixbook regarding the use of the Service, superseding any prior agreements between you and Mixbook relating to your use of the Service. The failure of Mixbook to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. Mixbook may assign its rights under this Agreement to any third party without notice or consent. By using the Service, you consent to us contacting you via email or other electronic means. To opt out receiving electronic communications, mail us at Opt-Out, Mixbook Customer Service, 2000 Broadway St., Redwood City, CA 94063.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Mixbook Customer Service, 2000 Broadway St., Redwood City, CA 94063.

Questions

Please visit our Help page for more information.

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