Mixie – Venue Services Terms & Conditions
Last updated October 14, 2021
Mixie, operated by Mercova, LLC (“us,” “we,” or “Mixie”) provides a service through its mobile app and its website (the mobile app, this site and any applications or other software provided by Mixie, for use with the site or otherwise, collectively, the “Site”) to you the participating venue and its affiliates (“Venue”, “you” and terms of similar meaning) subject to these terms and conditions (these “Terms and Conditions”).
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.
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. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the Site. The most recent version of this Agreement is the version that is effective. 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 Site or via email. If you continue to use the Site 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.
Venue hereby appoints Mixie, and Mixie accepts such appointment, to serve as a consultant to Venue to perform the Services, and to serve as its sole independent digital and social media marketer. Mixie is free to contract with other entities or individuals to provide the Services, with or without compensation and in any form, as well as to subcontract all or part of the Services. You acknowledge that we operate a private subscription membership based social mobile app that provides certain benefits to its members, including but not limited to access to exclusive content, limited edition merchandise, special events, promotions and discounts at venue establishments.
The initial term of this Agreement shall be one month, which shall be renewed automatically for additional periods of one month (the “Term”). Either party may terminate the Agreement with 15-day prior written notice, provided that if this Agreement is terminated by you, then you shall also delete your account through the mobile app for the termination to be effective; provided, however, that you are solely responsible to manage your in app purchases through your mobile device platform (e.g., iTunes, Google Play). Upon such termination, you will not be entitled to any refund for purchases or Additional Services fees or any fee paid by you for failure to cancel your in app purchases. After your account is terminated for any reason, this Agreement will terminate and Mixie’s appointment hereunder shall be terminated and Mixie shall cease performance of all Services as of the date of such termination and Venue shall have no further obligations, other than payment of all earned but unpaid portion of the Services and the Additional Services performed prior to the effective date of such termination, except that any provision that expressly provides that survives the termination shall survive including the following provisions which shall still apply to you and Mixie and survive such termination: Section 8 and Sections 10 through 19.
This Agreement shall be on a limited exclusivity basis, where Mixie is the Venue’s sole independent digital and social media marketer that operates a subscription membership based social mobile app; provided, however, that you may use existing services such as Open Table, Yelp, Foursquare and similar mobile apps and have your own in-house marketing campaigns and services.
3. Mixie’s Obligations
Mixie agrees to use commercially reasonable efforts to perform the Services and to promote and market Venue to its members. Mixie’s Marketing Services shall include but are not limited to the following:
a. Promoting Venue’s brand or products in the Site;
b. Provide basic data summary and information through the Partner Venue Dashboard.
4. Venue’s Obligations
You agree to use commercially reasonable efforts to provide and honor, to the extent permitted by law, Mixie’s member services. You agree, to the extent permitted by law, to:
a. Provide to Mixie the Venue Content (as defined below) subject to the terms of Section 6, or allow Mixie to obtain the Venue Content publicly available, to include such Venue Content in Mixie’s Site; and
b. To the extent permitted by law, (i) serve one free drink per visit to a Mixie member during the course of one business day, or (ii) if the laws of the state where you operate and where you are subject to prohibit you to provide such complimentary drink, then, to the extent permitted by law (x) offer a complimentary drink or drink discount to our members as part of a meal package, or (y) allow our members to purchase at least one additional drink at no less than the same regular retail price of the complimentary drink, or (iii) if you cannot provide a complimentary drink on a systematic basis, then allow our members to have access to any promotion or discount you deem appropriate.
Notwithstanding anything contained herein, it is your sole responsibility and discretion to enforce your policies with your clients (including Mixie’s members), as well as complying with applicable law. You shall comply at all times with any licensing and promotion requirements.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH YOUR CLIENTS, OTHER USERS AND MIXIE MEMBERS. YOU UNDERSTAND THAT MIXIE DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS USERS OR MEMBERS OR OTHERWISE INQUIRE INTO THE BACKGROUND OF ITS USERS OR MEMBERS. MIXIE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OR LEGAL AGE OF USERS OR ITS MEMBERS.
No economic compensation shall be paid by you to Mixie in consideration for any Marketing Services rendered by Mixie. Venue shall have no compensation or sharing of the fees that Mixie receives from its members or from the products it may sell to its members or to you through the Site. In consideration for the Services, you agree that we, our affiliates, and our third-party partners may place advertising on the Site. 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. Venue Content
By creating an account, you grant Mixie a worldwide, transferable, sub-licensable, royalty-free, right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute information you authorize us to access from your internet router (wireless or cable modem), Bluetooth, Wifi, Facebook, LinkedIn and your email, as well as to use Venue name, logo, likeness, images, or other publicly available information (the “Venue Content”) in connection with the Service and the Site. Notwithstanding the foregoing, any content or material furnished by the Venue including the Venue Content shall be deemed approved for use and shall be solely owned by Venue. Our license to your Venue Content is subject to your rights under applicable law (for example laws regarding personal data protection to the extent any Venue Content contains personal information as defined by those laws) and is for the limited purpose of operating, developing, providing, and improving the Service and researching and developing new ones. You agree that any Venue Content you place or that you authorize us to place on the Service may be viewed by other Mixie members and other users and may be viewed by any person visiting or participating in the Service.
You agree that all information that you submit upon creation of your account, including information submitted from your internet router (wireless or cable modem), Bluetooth, Wifi, Facebook account, LinkedIn account or email is accurate and truthful and you have the right to post the Venue Content (and to grant Mixie the right to post the Venue Content) on the Site and grant the license to Mixie above. You understand and agree that we may monitor or review any Venue Content you post as part of the provision of the Service. We may delete any Venue Content, in whole or in part, that in our sole judgment violates this Agreement or may harm the reputation of Mixie.
You agree that Mixie may access, preserve and disclose your account information and Venue Content 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: (i) comply with law, legal process or is required to be disclosed in opinion of our counsel; (ii) enforce this Agreement; (iii) respond to claims that any Venue Content or that the Service violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Mixie or any other person. You represent and warrant that you understand and comply with all laws, rules and regulations that may apply to your establishment and the Services.
7. Independent Contractor
Nothing contained in this Agreement and no action taken by any party to this Agreement shall be (a) deemed to constitute any party or any of such party’s employees, agents or representatives to be an employee, agent or representative of the other party; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the parties; or (c) deemed to confer on any party any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other party, except as expressly authorized in writing.
During the term of this Agreement, Venue may receive Confidential Information (defined below). Venue agrees at all times during the term of this Agreement and seven years following the termination of this Agreement, to hold in strictest confidence, and not to use any Confidential Information. Venue further agrees not to make copies of such Confidential Information except as required to perform work-related duties or as expressly authorized by Mixie. Venue may only disclose Confidential Information to its directors, officers, employees, and representatives who are required to have such information for Venue to carry out the transactions contemplated by this Agreement and who have been advised of the obligations in this Section 8. Venue must promptly notify Mixie of any actual or suspected misuse or unauthorized disclosure of Confidential Information or any approach by a competitor to have access to the Confidential Information. Venue must promptly notify Mixie if it receives a subpoena or other order of a court or government agency that requires the disclosure of the Confidential Information or any of Mixie’s clients, and give Mixie an opportunity to defend, limit or protect such disclosure.
“Confidential Information” means any Mixie non-public or proprietary information and materials, including, without limitation, the Services; the Partner Dashboard (and the elements, features, metrics and designed contained in such Partner Dashboard); information obtained with respect to Mixie, the technology underlying the Service learned in connection with any and all work performed in connection with the Services; designs, plans, devices or material, research and development; software (including software in API, script, object, executable, or source code form); trade secrets; financial documents or data in whatever form or medium; analysis, techniques, materials or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of Mixie or its clients, partners, suppliers and vendors; any vendor names, customer, user and supplier lists; databases and management systems; sales and marketing plans; the terms of this Agreement, or any other confidential information or proprietary aspects of the business of Mixie or its clients. All information which Venue acquires or becomes acquainted with during the period of this Agreement, whether developed by Venue or by others, which Venue has a reasonable basis to believe to be Confidential Information, or which is treated by Mixie or its clients as being Confidential Information, is presumed to be Confidential Information. “Confidential Information” does not include any information: (a) that is in the public domain through no act or omission of Venue; (b) was in Venue’s lawful possession without limitation on disclosure, as demonstrated by the files in existence at the time of disclosure; (c) becomes known to Venue from a source other than Mixie, which disclosure is not in violation of Mixie’s rights; or (d) was independently developed by Venue without any use of the Confidential Information, as demonstrated by files created as of the time of such independent development. Venue may only duplicate Confidential Information as necessary to perform their respective obligation under this Agreement.
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 (INCLUDING VENUE CONTENT) THAT YOU OR ANOTHER USER 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. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MIXIE NOR ANY OTHER INDEMNIFIED PARTY SHALL BE LIABLE FOR ANY DIRECT, 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, OR OTHER ECONOMIC LOSS, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RESULTING FROM IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION: (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SITE OR THE SERVICES, (II) THE CONDUCT OR CONTENT OF MIXIE MEMBERS, USERS OR THIRD PARTIES ON, THROUGH, OR FOLLOWING USE OF THE SERVICES; (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF THE VENUE CONTENT, EVEN IF MIXIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (IV) ANY THIRD PARTY CLAIMS THAT THE USE BY YOU OF THE SITE OR THE SERVICES VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT OR PRIVACY RIGHT; (V) ANY FAILURE OF PERFORMANCE OF THE SITE, THE SERVICES OR THE VENUE CONTENT, 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 INDEMNIFIED PARTY’S RECORDS, PROGRAMS OR SERVICES); (VI) ANY DAMAGES ARISING FROM COMMUNICATIONS OR TRANSACTIONS WITH OTHER MIXIE MEMBERS, OR USERS OF THE SITE, WHETHER THROUGH BLOGS, THE SERVICES OR OTHERWISE, OR PERSONS THAT YOU MEET THROUGH THE SITE; (VII) THE REVOCATION, TERMINATION OR SUSPENSION OF ANY LICENSE OR PERMIT, OR ANY PENALTY OR FINE ASSESSED AS A RESULT OF RECEIVING THE SERVICES AND PROVIDING A COMPLIMENTARY DRINK TO YOUR CUSTOMERS; OR (VIII) ANY OTHER MATTERS RELATING TO THIS SITE, THE VENUE CONTENT OR THE SERVICES, 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.
To the extent not prohibited by law, Vendor 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 use of the Site or the Services, (x) the Venue Content or your access to or use of the Site or the Services, (d) your breach of this Agreement, (e) any misrepresentation from you, (f) the behavior of a Mixie member and any of Venue’s clients, 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 Site or the Services or the Venue Content or the behavior of a Mixie member and any of Venue’s clients.
12. 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.
13. Dispute Resolution
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.
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.
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 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
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.
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 10, 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.
The entity 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. 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.
15 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.
Venue 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 the prior consent of Venue.
18. 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 services we offer on the Site or the Service, contains the entire agreement between you and Mixie regarding the use of the Site and 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.
Each party hereto represents and warrants to each other party hereto, solely with respect to itself, that (a) such party has full legal power, authority and right to execute and deliver, and to perform its obligations under, this Agreement; (b) this Agreement has been duly and validly executed and delivered by such party and constitutes a valid and binding agreement of such party enforceable against such party in accordance with its terms; and (d) the execution, delivery and performance by such party of this Agreement does not and will not (x) violate the organizational documents of such party, (y) violate any law or court or governmental order applicable to such party or (z) require any consent or other action by any other person.
For any questions please contact us at:
1305 W. 11th St #3040,