Last updated October 14, 2021
Welcome to Mixie, an invite- only subscription based social mobile app, operated by Mercova, LLC (“us,” “we,” the “Company” or “Mixie”).
Mixie is an invite-only lifestyle app that connects its members with a curated choice of nearby local bars and restaurants, featuring selections from the city’s top chefs, where they are rewarded with 1 complimentary welcome drink or appetizer on every visit. Mixie is an invite-only network, which means that the only way to gain access is by getting an invitation from existing members.
1.2 We may make changes to this Agreement and to the products and Services offered from time to time. We may do this for a variety of reasons including to reflect changes in or requirements of the law, new features, or changes in business practices. The most recent version of this Agreement will be posted on Mixie’s mobile app or on the web page Mixie.io, and you should regularly check for the most recent version. The most recent version is the version that applies. If the changes include material changes that affect your rights or obligations (by decreasing your rights or increasing your responsibilities), we will notify you in advance of the changes by reasonable means, which could include notification through the Services or via email. If you continue to use the Services after the changes become effective, then you agree to the revised Agreement. If you do not delete your Mixie account you will be deemed to have accepted the revised Agreement.
2.1 YOU MUST BE 21 YEARS OF AGE OR OLDER TO USE THIS SERVICE. IT IS A VIOLATION PUNISHABLE UNDER LAW FOR ANY PERSON UNDER THE AGE OF 21 TO PRESENT ANY WRITTEN EVIDENCE OF AGE WHICH IS FALSE, FRAUDULENT OR NOT ACTUALLY HIS OR HER OWN FOR THE PURPOSE OF ATTEMPTING TO PURCHASE ANY ALCOHOLIC BEVERAGE. IF YOU ARE NOT 21 YEARS OF AGE OR OLDER OR IF YOU ARE A MINOR, YOU MAY NOT USE THE SITE.
2.2 You represent and warrant that (a) you are 21 years of age or older, (b) you can form a binding legal obligation, (c) you will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations and (d) you are not barred from receiving products or services under applicable law.
2.3 User verification on the internet is difficult and we do not assume any responsibility for the confirmation of any member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (a) ask you to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of users, (b) screen users against third party databases or other sources and request reports from service providers, and (c) where we have sufficient information to identify a user, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
3. Your Account.
3.3 You are responsible for maintaining the confidentiality of your login credentials you use to sign up for Mixie, and you are solely responsible for all activities that occur under those credentials. If you think someone has gained access to your account, please immediately contact us.
3.4 While we use reasonable efforts to keep the Service and your account accessible, the Service and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions in Service or Events, site or app access, or access to your account due to circumstances both within our control (e.g., routine maintenance) and outside of our control (including without limitation force majeure or acts of third parties).
This Agreement is effective from the date you download the Mixie app and create a Mixie account and you will continue to be billed for the Service until the termination of this Agreement as set forth herein. You may terminate your account at any time, for any reason, by following the instructions in the home menu; provided, however, that you will be solely responsible to manage your In App purchases through your mobile device platform and App Store (e.g., iTunes, Google Play) and that such termination will be effective 72 hours after the account is deleted; provided further, however, that notwithstanding anything contained herein to the contrary, Mixie shall not be responsible and you hereby waive and release Mixie from any claim or loss arising out of your failure to cancel the automatic purchase of the Subscription Fee (as defined below) and you agree and understand that you will not have the right to a refund of any Subscription Fee that is paid by you following the termination of this Agreement. Mixie may terminate your account at any time without notice if we believe that you have violated this Agreement, you fail to pay the monthly Subscription Fee or with 30-days prior written notice for any reason with or without cause. Upon such termination, you will not be entitled to any refund for any purchase or Subscription Fee. After your account is terminated, this Agreement will terminate, except that the following provisions will still apply to you and Mixie: Section 4, and Sections 11 through 21.
5. Rights Mixie Grants You.
5.1 Subject to this Agreement and as long as you comply with the terms hereof, Mixie grants you a personal, worldwide, royalty-free, non-assignable, nonexclusive, revocable, and non-sublicensable, limited right to access and use the Services. This right is for the sole purpose of letting you use and enjoy the Services’ as intended by Mixie and permitted by this Agreement. Therefore, you agree not to:
a interfere (or attempt to interfere) in any manner, or disrupt (or attempt to disrupt) the Services or our servers or networks connected to the Service.
b use another user’s account without our express written permission.
c use the Service or any content contained in the Service for any commercial purposes without our written consent.
d copy, transmit, modify, create any derivative works from, make use of, or reproduce in any way any intellectual property, content or proprietary information accessible through the Service without Mixie’s prior written consent.
e use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
f upload viruses or other malicious code or otherwise compromise the security of the Services.
g “frame” or “mirror” any part of the Service without Mixie’s prior written authorization.
h use meta tags or code or other devices containing any reference to Mixie or the Service (or any trademark, trade name, service mark, logo or slogan of Mixie) to direct any person to any other website for any purpose.
i copy in any way or make screenshots or videos of Mixie app, or the Services in order to share the information with a third party, including any competitor or potential competitor of Mixie.
j modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service, or cause others to do so.
k use or develop any third-party applications that interact with the Services or information without our written consent.
l use, access, or publish the Mixie application programming interface without our written consent.
m probe, scan or test the vulnerability of our Services or any system or network.
n encourage or promote any activity that violates this Agreement or applicable law.
5.2 If Mixie is aware of any unauthorized use or any attempted unauthorized use, Mixie has the right to pursue any legal action including without limitation to terminate your account in which case you shall not have the right to be reimburse of any payment made to Mixie including without limitation refund of any purchases or Subscription Fee.
6. Rights you Grant Mixie.
6.2 You agree that all information that you submit upon creation of your account, including information submitted from your Facebook or Google account or email is accurate and truthful and you have the right to use the Service and grant the abovementioned license to Mixie.
6.3 You agree that we, our affiliates, and our third-party partners may place advertising on the Services including the mobile app and the website. By submitting suggestions or feedback to Mixie regarding our Services, you agree that Mixie may use and share such feedback for any purpose without compensating you.
6.4 You agree that Mixie may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (a) comply with law, administrative or legal process (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) or in the opinion of counsel; (b) enforce this Agreement; (c) respond to claims that your use of the service or the information you provided violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of the Company or any other person.
6.5 The Mixie platform, the Mixie mobile app or Mixie’s content, may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Mixie app and the Mixie content, including all associated intellectual property rights, are the exclusive property of Mixie and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying Mixie or Mixie content. You agree not to use or display any trademarks you do not own without our prior written consent or the consent of the owner of such mark. We do not claim ownership in, or any affiliation with, any third party trademarks or service marks appearing on the Mixie app, website or Service. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Service are used for identification purposes only and may be the property of their respective owners.
7. Mixie Rules.
7.1 By using the Services, you agree that you will not:
a use the Service for any purpose that is illegal or prohibited by this Agreement.
b use another user’s account.
c create another account if we have already terminated your account, unless you have our written permission.
7.2 Mixie reserves the right to investigate and/or terminate your account without a refund of any purchases or Subscription Fee if you have misused the Service or behaved in a way that Mixie regards as inappropriate or unlawful.
8. Billing Terms.
8.1. Subscription Fee.
Mixie is free to download. Ongoing use requires an active subscription, available on a monthly or yearly basis. All first-time customers are eligible for a 1-day free trial period. Monthly subscriptions are billed per month and yearly subscriptions are billed the total annual fee from the purchase date. Payment will be charged to your credit card though your iTunes account at confirmation of purchase. Subscriptions renews automatically unless cancelled at least 24 hours prior to the end of the subscription period. There is no increase in price when renewing.
The monthly subscription is equal to $4.99 per month or a yearly subscription equal to $89.99 per year (the “Subscription Fee”). The Subscription Fee may be updated and may change from time to time. You will be charged automatically the Subscription Fee in advance through the In-App Purchase subscription of the App Store or Google Play (or any other similar platform or App Store). The payment of the Subscription Fee is not transferable or refundable. The Subscription Fee will be charged regardless of how much or how often you use the Service.
8.2. In-App Purchase
Mixie offers an auto-renewing in-app purchase subscription. This subscription is purchased through the In-App Purchase subscription of the iTunes App Store or Google Play (or any other similar platform or App Store). The In-App Purchase is purchased from and billed by the respective App Store, not by Mixie. Such In App Purchase is subject to the guidelines, terms, conditions and other agreements with the corresponding App Store. You may access the applicable In-App Purchase rules and policies directly from the applicable App Store(s). You agree and acknowledge that any matter related to the payment of the Subscription Fee will be addressed directly with the corresponding App Store (such as iTunes iTunes App Store or Google Play), including any matter related to refunds of the Subscription Fees. You can manage, cancel or renew the Subscription Fee through your account settings in the applicable App Store (such as iTunes App Store or Google Play). Once purchased, refunds of the Subscription Fee will not be provided for any unused portion of the term of the subscription. The Subscription Fee is charged automatically every subscription period, unless the auto-renew option is turned off at least 24-hours before the end of the current period. Your account will be charged for renewal within 24-hours prior to the end of the current period, and identify the cost of the renewal. After cancellation, you will continue to have access to the Service for the remainder of your billing period.
8.3. Free Trial
Mixie is free to download. To Use the Service you are required to have an active subscription and pay the Subscription Fee. All first-time users are eligible for a one-time 3-day free trial period. Any unused portion of a free trial period will be forfeited once you pay the Subscription Fee.
MIXIE PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MIXIE DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, (B) ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, OR (C) THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH THE SERVICES WILL BE ACCURATE.
MIXIE TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, A VENUE OR THIRD PARTY POSTS, SENDS OR RECEIVES THROUGH THE SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK.
10. Third Party Services.
The Service may contain advertisements and promotions offered by third parties and links to other web sites or resources. Mixie is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. Mixie is not responsible or liable for such third parties’ terms or actions.
11. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MIXIE, ITS MEMBERS, MANAGERS, SHAREHOLDERS, AFFILIATES, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, ADVISORS, LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, (B) THE CONDUCT OR CONTENT OF OTHER USERS OR THIRD PARTIES ON, THROUGH, OR FOLLOWING USE OF THE SERVICES; (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF MIXIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (D) ANY FAILURE OF PERFORMANCE OF THE SERVICES OR THE VENUES, WHETHER RELATED TO MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, DELETION OF FILES OR EMAIL, COMPUTER VIRUSES OR ANY FAILURE OF PERFORMANCE (WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MIXIE OR ANY OTHER PARTY’S RECORDS, PROGRAMS OR SERVICES), (E) ANY FAILURE BY A VENUE OR OTHER THIRD PARTY TO PROVIDE A FREE DRINK OR APPETIZER, OR WITH ANY DISCOUNTED OR PROMOTED PRODUCT, (D) YOUR FAILURE TO CANCEL THE AUTOMATIC IN APP PURCHASE FROM THE APPLICABLE APP STORE OR (E) ANY OTHER MATTERS RELATING TO THE SERVICE, BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, FUNDAMENTAL BREACH, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, WHETHER OR NOT MIXIE HAD ANY KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, THAT YOU MIGHT INCUR SUCH DAMAGES. IN NO EVENT WILL MIXIE’S AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS RELATING TO THE SERVICE EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO MIXIE FOR THE SERVICE WHILE YOU HAVE AN ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
12. Dispute Resolution.
12.1 You and Mixie agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and Mixie are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and Mixie otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
12.2 Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org or by calling the AAA at +1 800 778 7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
12.3 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
12.4 Arbitration Location and Procedure. Unless you and Mixie otherwise agree, the arbitration will be conducted in the State of Texas, United States of America . If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Mixie submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
12.5 Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of Section 11 as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
12.6 Fees. The person that files for arbitration shall pay the AAA filing fee. The cost of the arbitrator and other incidental costs of arbitration that would not be incurred in a court proceeding shall be borne by you. The parties shall each bear their own costs and attorney’s fees in any arbitration proceeding, provided, however, that the arbitrator shall have the authority to require either party to pay the costs and attorney’s fees of the other party to the extent permitted under applicable federal or state law, as a part of any remedy that may be ordered.
14. Governing Law and Venue.
This Agreement shall be governed and interpreted pursuant to the laws of Texas, United States of America, excluding Texas’s conflict of laws rules, and such law will apply to any disputes arising out of or relating to this Agreement or the Services. For the avoidance of doubt, the choice of Texas governing law shall not supersede any mandatory consumer protection legislation in such jurisdictions.
All claims arising out of or relating to this Agreement or the Services will be litigated exclusively in the federal or state courts of Harris County, Texas, United States of America, and you and Mixie consent to personal jurisdiction in those courts.
To the extent not prohibited by law, you shall indemnify and hold harmless Mixie and each of its officers, members, managers, directors, employees, contractors, advisors, representatives, consultants, advertisers, vendors or other partners, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Indemnified Parties” and each an “Indemnified Party”) from and against all losses, claims, demands, suits, debts, rights, remedies, causes of action, damages, costs, expenses of any nature (including reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative, whether known or unknown, foreseen or unforeseen, liquidated or unliquidated, matured or unmatured, existing or hereafter arising, in law, equity, or otherwise (collectively, “Losses”), including, for death or bodily injury to third parties or damage to third party property, or violation or infringement of third party intellectual property rights, inaccuracy of content, or allegations that an Indemnified Party has indemnity obligations to another party, resulting from, arising out of or relating to (a) Mixie’s performance of its obligations hereunder, (b) your access or use of the Services, (c) your breach of this Agreement, (d) any misrepresentation from you, (e) your behavior at any using the Services, and (g) any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your use of the Services.
16. Modifying the Services and Termination.
Mixie is always striving to improve the Services and bring you additional functionality that you will find engaging and useful. This means we may add new product features or enhancements from time to time as well as remove some features, and if these actions do not materially affect your rights or obligations, we may not provide you with notice before taking them. We may even suspend the Services entirely, in which event we will notify you in advance unless extenuating circumstances, such as safety or security concerns, prevent us from doing so.
17. Electronic Contracting and Notice.
Your affirmative act of using the Site and/or downloading the Mixie App, constitutes your electronic signature to this Agreement and your consent to enter into agreements with us electronically.
Any failure by Mixie to exercise any right granted herein upon the occurrence of any contingency set forth in this Agreement will not in any event constitute a waiver of any such right upon the recurrence of any such contingency.
You may not assign its rights and obligations under this Agreement to any third party without the prior written consent of Mixie, which consent may be unreasonably withheld, conditioned or delayed. Mixie may assign its rights and obligations under this Agreement to any third party without your prior consent.
20. Third Party Services.
The Site may contain advertisements and promotions offered by third parties and links to other web sites or resources. Mixie is not responsible for the availability (or lack of availability) of such external websites or resources. If you choose to interact with the third parties made available through our Service, such party’s terms will govern their relationship with you. Mixie is not responsible or liable for such third parties’ terms or actions.
This Agreement, and any terms disclosed and agreed to by you if you purchase additional features, products or the Service, contains the entire agreement between you and Mixie regarding the Service. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The failure of Mixie to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that your Mixie account is non-transferable. No agency, partnership, joint venture or employment is created as a result of this Agreement and you may not make any representations or bind Mixie in any manner. The headings used in the Agreement are included for convenience only and have no legal or contractual effect and will not affect the construction or interpretation of this Agreement.
If you have any questions please contact us at:
1305 W. 11th St #3040,
Houston, Texas, 77008