Terms of Service
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PLEASE PRINT A COPY THIS AGREEMENT TO RETAIN FOR YOUR RECORDS.
Acceptance of Terms of Use.
Welcome to the WellMixed.com service. This document (hereinafter the "Agreement") is the legal, binding contract between you (hereinafter "You" or "Your," when the context so requires) and WellMixed.com (hereinafter "WellMixed") that governs Your use of WellMixed's services (hereinafter referred to, in whole and in part, as "Services"). By registering an email address with WellMixed You accept each and every term of this Agreement. You further agree that by using the Services, You accept the terms of this Agreement. You agree that if, at any time, You do not agree to, or cannot comply with, the Agreement, then Your only remedy is to stop using the Services.
You agree and acknowledge that WellMixed reserves its right to modify these terms from time to time, and in its sole discretion, and that unless explicitly stated otherwise, any new features added to the current Services automatically are subject to the then currently effective Agreement.
WellMixed reserves all rights not expressly granted You in this Agreement
You must be at least 18 years of age to agree to and enter into this Agreement and, register to use of the Services. If You are under 18, You must present this Agreement to Your parent or legal guardian, and they must click "Send to Engineer" and agree to and enter into this Agreement on Your behalf.
By accepting this Agreement, You represent that (i) You have read, understand, and agree to be bound by this Agreement; and, (ii) You are at least 18 years old, either entering into this Agreement for Yourself or entering on behalf of Your child or a child in Your legal care. If You are a parent or guardian entering this Agreement for the benefit of a child in Your legal care, You promise, agree, and acknowledge that You are fully responsible for the child's use of the Services, including all financial charges and legal liability that the child may incur. If You do not agree to, or cannot comply with, any of these terms and conditions, do not check the acceptance box, do not attempt to access the Services, and do not allow the child to attempt to access the Services.
In order to use the Service, You must have access to the World Wide Web, either directly or through devices that access web-based content. You agree and acknowledge that it is solely Your responsibility to pay any service fees associated with such access. You must provide all equipment necessary to connect to the World Wide Web. You also agree and acknowledge that the Services may include advertisements, and that these advertisements are necessary for WellMixed to provide the Services. You also understand and agree that the Services may include certain communications from WellMixed (such as service announcements and administrative messages), and You might not be able to opt out of receiving them.
Account Registration, Use, and Termination.
You must access the Services through a valid WellMixed account (which this Agreement refers to as "Account"). You promise and agree not to access the Services by any means other than through the interfaces that WellMixed provides for use in accessing the Services.
To create an Account, You must provide WellMixed with certain information ("Registration Data"). You promise to (i) provide to WellMixed accurate, current, and complete Registration Data, including your legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date), and (ii) diligently maintain and promptly update the Registration Data to keep it accurate, current, and complete. You agree and acknowledge that if You provide any information that either (i) is inaccurate, not current, or incomplete, or (ii) WellMixed has reasonable grounds to believe is inaccurate, not current, or incomplete, then WellMixed can suspend or terminate Your Account and refuse You any and all current or future use of the Services. Registration Data and certain other information about You are subject to our
Privacy Policy, the terms of which are incorporated into this Agreement by reference.
You promise to maintain the confidentiality of Your password and the security of Your Account. You agree and acknowledge that You are solely responsible for maintaining the confidentiality of Your password and the security of Your Account, and You are fully responsible for all activities that occur under the Account and any actions taken in connection with the Account. You promise to immediately notify WellMixed of any unauthorized use of the Account, and any other breach of security for Your, or another user's, Account. You agree and acknowledge that WellMixed cannot be, will not be, and is not liable for any loss or damage resulting from (i) a failure to comply with this security obligation, or (ii) any acts or omissions by You or anyone accessing Your Account, including any damages of any kind incurred as a result of such acts or omissions.
In addition to any other remedy available to WellMixed, whether at law or under this Agreement, You agree that WellMixed may, for good cause and without prior notice, immediately suspend or terminate Your Account and Your access to the Services. Good cause includes, without limitation, (a) breaches or violations of this Agreement, (b) requests by law enforcement or other government agencies, (c) request by You, (d) discontinuance or material modification to the Services, or (e) unexpected technical issues or problems. Termination of Your Account includes (a) removing of Your access to the Services, (b) deleting all related information, files, and content associated with Your Account, and (c) barring Your further use of the Services. You agree that WellMixed, in its sole discretion, determines what constitutes good cause, and that WellMixed is not and will not be liable to You or any third-party for any termination of Your account or access to the Services. In the event Your Account is terminated and You have any monies then being held in Your Account by WellMixed, such monies shall first be applied toward payment of any unpaid fees or costs that You may owe to WellMixed, and the remaining balance of such monies, if any, shall be remitted to You.
Payment for Services
You agree and acknowledge that payment for services must be made before services are rendered. Furthermore, you acknowledge that payment does not guarantee services be rendered. You also agree and acknowledge that WellMixed reserves the right to refund the payment for services to you minus a five percent transaction fee charge without rendering services.
Acceptable Use Policy
WellMixed does not actively monitor, censor, directly control, or exercise any editorial control whatsoever over any content that is uploaded, downloaded, stored, transmitted, or otherwise made available through the Services, except for its proprietary content. WellMixed does not exercise any control whatsoever over any use of the Services, except as expressly provided in this Agreement. You agree and acknowledge that all content is the sole responsibility of the person who uploads, downloads, stores, transmits, or otherwise makes available such content.
You agree and acknowledge that WellMixed reserves and has the right, at its sole discretion, to delete any information that may be illegal, subjects WellMixed to liability, or violates this Agreement or any other agreement made pursuant to the use of these Services. You agree and acknowledge that Your violation of this section, specifically, or this Agreement, generally, may result, in addition to any other available remedy, in WellMixed to terminating Your Account and access the Services. In addition to any remedy provided hereunder, WellMixed expressly reserves its rights under the law to take any other lawful action it deems necessary.
You promise and agree that You will be solely liable for Your use of the Services and any liability for any information that You upload, download, store, transmit, or otherwise make available through use of the Services. You agree to use Your best efforts to ensure the security and integrity of Your network or systems used to access the Services.
You agree and acknowledge that the following uses of the Services are expressly prohibited, and You promise not to use the Services to:
a.Upload, post, store, transmit, or otherwise make available any content that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations;
b.Upload, post, store, transmit, or otherwise make available, intentionally or otherwise, any harmful content including, without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, secretly intercept or seize any system, program, data or personal information;
c.Impersonate any person or entity, including, but not limited to, an WellMixed employee or other WellMixed representative, or misrepresent Your affiliation with WellMixed or any other person or entity;
d.Forge any TCP/IP, or other protocol, packet header, e-mail header, any part of any message header, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
e.Access, or attempt to access, (or otherwise compromise) the accounts of others, or to penetrate, or attempt to penetrate, (or otherwise compromise) the security of WellMixed's or another entity's computer hardware or software, electronic communications system, or telecommunications system, whether or not the intrusion results in, or would result in, the corruption or loss of data;
f.Upload, post, store, transmit, or otherwise make available any content that You do not have a right to copy, upload, post, store, transmit or otherwise make available under any law or under contractual or fiduciary relationships (including, without limitation, proprietary and confidential content);
g.Infringe any intellectual property rights or other proprietary rights including, without limitation, information protected by copyright, trademark, patent, trade secret, right of publicity, or other proprietary rights of any third party;
h.Invade the privacy of third parties or collect, or attempt to collect, personal information about third parties without the third party's knowledge or consent;
i.Transmit abusive, profane, libelous, slanderous, threatening or otherwise harassing material;
j.Upload, post, store, transmit, or otherwise make available any unsolicited commercial email or "spam." This includes unethical marketing, advertising, or any other practice, such as (i) sending mass email to recipients who haven't requested email from You or with a fake return address, or (ii) promoting a site with inappropriate links, titles or descriptions. You agree and acknowledge that WellMixed, in its sole discretion, will determine what constitutes an "unethical marketing, advertising, or any other practice;"
k."Stalk" or otherwise harass another person or entity;
l.Resell the Services without WellMixed's consent; and,
m.Engage in any activity that adversely affects the ability of other people or systems to use the Services, including, without limitation, any interference with or disruption of other users, whether or not intentional. Such activities include interfering with or disrupting the Services or servers or networks connected to the Services, and disobeying any requirements, procedures, policies, or regulations of networks connected to the Services.
You agree and authorize WellMixed to access, use, and disclose information regarding Your use of the Services, including, without limitation, Your Registration Data, to (1) comply with the law; (2) enforce or perform any user agreements to which WellMixed is a party; (3) initiate, render, bill, and collect for the Services and any other service; (4) protect the property or personal safety of WellMixed, its employees, its users, and the public, or (5) protect WellMixed's users from fraudulent, abusive, or unlawful use of the Services.
You agree and acknowledge that WellMixed may preserve content and may also disclose content if it is required to do so by law, or it has a good faith belief that such preservation or disclosure is reasonably necessary to (1) comply with the law; (2) enforce or perform any user agreements to which WellMixed is a party; (3) initiate, render, bill, and collect for the Services and any other service; (4) protect the property or personal safety of WellMixed, its employees, its users, and the public, or (5) protect WellMixed's users from fraudulent, abusive, or unlawful use of the Services.
You agree and acknowledge that You, and not WellMixed, are solely responsible for all content that You upload, post, store, transmit, or otherwise make available. You understand that by using the Services, You may be exposed to content that is offensive, indecent, or objectionable. You agree and acknowledge that under no circumstances will WellMixed be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, stored, transmitted, or otherwise made available. You agree and acknowledge that You must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. You agree that You will not rely on any content created by WellMixed or posted, stored, transmitted, or otherwise made available to WellMixed.
WellMixed has the right to monitor the content which you or other users make by means of the Services, but shall have no obligation to do so. You agree that if WellMixed in its sole discretion deems any content made available by You to be unlawful, fraudulent, unacceptable, offensive, obscene or otherwise objectionable, WellMixed has the right, but not the obligation, to remove or deny access to such content. You expressly agree that WellMixed shall not be liable to You for any action WellMixed takes to remove or restrict access to such material, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. WellMixed has the right to take all reasonable actions to remove or restrict access to any such material, including restriction, suspension or termination of Your access privileges and/or deletion of the objectionable material.
Additional Software
With respect to any additional software that may be made available by WellMixed in connection with the Services, if You elect to download or execute such software, You agree and acknowledge that You may have to agree to additional terms and conditions before You use such software, and that those terms and conditions are incorporated in this Agreement by reference.
International Use
Recognizing the global nature of the Internet, You promise to comply with any and all local rules regarding online conduct and acceptable content. You promise to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which You reside. You promise to comply with all applicable laws protecting content uploaded, downloaded, posted, stored, transmitted, or otherwise made available through the Services.
Submitted Content
WellMixed does not claim ownership of the content You upload, post, store, transmit, or otherwise make available using the Services. By using the Services, You grant WellMixed a worldwide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the content for the purposes of providing the Services. This license exists only as long as necessary to provide the Services.
Third Parties
With respect to any agreement between You and any third party, You agree and acknowledge that WellMixed does not intend to interfere with any contractual agreement between You and a third party, and You promise to perform fully Your obligations under any such contract. You agree and acknowledge that it is Your sole responsibility to perform such obligations. You promise not to use the Services if such use would breach any term, material or otherwise, of any such agreement.
Your correspondence or business dealings with, or participation in promotions of, any third party found on or through the Services, including, without limitation, payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such third party. You agree and acknowledge that WellMixed is not, and will not be, responsible or liable for any loss or damage of any sort incurred as a result of any such dealings, and You promise to indemnify WellMixed from any liability asserted against it as a result of any such dealings.
Hyperlink Disclaimer
As part of the Services, WellMixed, or a third party, may provide links to other World Wide Web content, sites, services, or resources. You acknowledge that WellMixed has no editorial control over such content, sites, services, or resources, and You agree and acknowledge that such links are not express or implied endorsements or approvals by WellMixed of any such content, sites, services, or resources. You agree and acknowledge that WellMixed (i) is not responsible for the availability of such external content, sites, services, or resources, and (ii) does not endorse, and is not responsible or liable for, any content available from such sites, services, or resources. You agree and acknowledge that WellMixed is not, and will not be liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with use of or reliance on any such content, sites, services, or resources.
Indemnity
You agree to indemnify and hold harmless WellMixed, its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Your content, Your use of or connection to the Services, Your violation of this Agreement, Your use of any content You acquire through use of the Services, or Your violation of any rights of another.
Modifications to the Services
WellMixed reserves the right at any time to modify or discontinue, whether temporarily or permanently, the Services or any part thereof with or without notice. You agree that WellMixed shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Service.
WellMixed's Proprietary Rights
You agree and acknowledge that the Services and any necessary software used in connection with the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further agree and acknowledge that content presented to You through the Services or advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws, and that in particular (but not in limitation of the foregoing) the term "WellMixed" and all logos embodying such terms are trademarks of WellMixed.com, LLC (the "WellMixed Marks"). Except as expressly authorized by WellMixed, You promise not to use, display, modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services or WellMixed's proprietary content, including, but not limited to, the WellMixed Marks.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOU USE THE SERVICES AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WellMixed EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WellMixed is not liable for any indirect, special, incidental, loss of business, loss of profits, or consequential damages, whether based on breach of warranty, breach of contract, tort, negligence, product liability, or other legal theory, even if WellMixed is advised of such damages or potential for damages.
(b) WellMixed WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, WellMixed IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF CONTENT, OR OTHER HARM ARISING OUT OF (i) DELAYS, MISDELIVERY, OR NONDELIVERY OF CONTENT, (ii) RESTRICTION OR LOSS OF ACCESS TO THE SERVICES, (iii) BUGS OR OTHER ERRORS, (iv) UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR (v) OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION UPLOADED, POSTED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON THE SERVICES.
(c) The CONTENT provided THROUGH the use of the Services is provided "as is." WellMixed EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, accuracy of informational content, AND NON-INFRINGEMENT. WellMixed is not liable for any indirect, special, incidental, loss of business, loss of profits, or consequential damages, whether based on breach of warranty, breach of contract, tort, negligence, product liability, or other legal theory, even if WellMixed is advised of such damages or potential for damages.
(d) WellMixed DOES NOT WARRANT THAT (i) THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THE QUALITY OF ANY CONTENT, PRODUCT, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL SATISFY YOU OR YOUR NEEDS, OR MEET YOUR EXPECTATIONS; AND (iv) ANY ERRORS IN THE SERVICES OR SOFTWARE WILL BE CORRECTED.
(e) YOUR USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SERVICES.
(f) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
(g) YOU EXPRESSLY UNDERSTAND AND AGREE THAT WellMixed WILL NOT BE AND IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WellMixed HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) YOUR USE OR INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT UPLOADED, DOWNLOADED, POSTED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (v) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICES.
Choice of Law
You expressly agree that the laws of the State of Missouri, without regard to its conflict of law provisions, govern this Agreement and the relationship between You and WellMixed. You and WellMixed agree that this Agreement is to be performed in Jackson County, Missouri, and You submit to the personal and exclusive jurisdiction of the courts located within Jackson County, Missouri.
Incorporation by Reference and Entire Agreement
This Agreement incorporates by reference any other agreement with respect to use of the Services between You and WellMixed to which (i) You have already agreed, or (ii) WellMixed requires You agree, whether or not such agreement is expressly incorporated elsewhere in this Agreement. You agree and acknowledge that this Agreement and the incorporated agreements constitute the entire agreement between You and WellMixed with respect to the Services, and supersede any previous agreements, written or otherwise, between You and WellMixed.
General
You agree that WellMixed may send notices to You via either email or regular mail. WellMixed may also provide notices of changes to this Agreement, any incorporated agreement, or any other matter by generally displaying notices or links to notices to You on the Services. WellMixed respects the intellectual property and proprietary rights of others and insists You do the same. You promise not to use the Services if You cannot, or will not, respect the intellectual property and proprietary rights of others.
You agree and acknowledge that the failure of WellMixed to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
You and WellMixed agree that if any provision of this Agreement or incorporated documents are found to be invalid by a court or other tribunal of competent jurisdiction, then (i) the other provisions of this Agreement remain in full force and effect, and (ii) the court or other tribunal construing this Agreement should, to the fullest extent of the law, give effect to the parties' intentions as reflected in the provision.
You agree and acknowledge that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one year after such claim or cause of action arose or be forever waived and barred.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
