Terms of Service

Welcome to Mixmax! We are excited to have you on board. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (collectively, the “Services”). These Terms of Use (the “Terms”) are a binding contract between you and Mixmax, Inc. (“Mixmax,” “we” and “us”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at support@mixmax.com.

You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your using the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document, as well as those in the Privacy Policy.

We are constantly improving our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we do, we will bring it to your attention by placing a notice in the Mixmax app on https://app.mixmax.com, and/or by sending you an email, and/or by some other means.

If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.

Except for changes by us as described here, no amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

Though many of our Services are currently free, Mixmax reserves the right to require payment of fees for certain or all Services, including without limitation our Starter, Small Business, Growth, and Enterprise level Services. Please refer to https://www.mixmax.com/pricing/ for details on our Starter, Small Business, Growth and Enterprise level plans and pricing information. You shall pay all applicable fees, as described on the Website in connection with such Services selected by you. All fees are non-refundable. If you select a plan that requires payment, you will be required to provide Mixmax accurate credit card and other payment information, and you agree to promptly update your account information with any changes. The monthly or annual fee will be charged to you in advance, to the credit card you provided upon enrollment in the plan. Mixmax reserves the right to change its price list and to institute new charges at any time. If you are an existing customer and we change prices, we will notify you by email at least 30 days before the change is to take effect for your next billing cycle. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. You are responsible for all taxes associated with the Services other than U.S. taxes based on Mixmax’s net income.You may cancel your subscription at any time. For annual contracts, cancelation will take effect at the end of the contract term. Payment is required for the full contactual amount and any additional users added.  No refunds will be granted for fees paid.

You acknowledge that, in the course of your relationship with Mixmax and in using the Services, you may obtain information relating to the Services and/or Mixmax (“Proprietary Information”). Such Proprietary Information shall belong solely to Mixmax and includes, but is not limited to, the features and mode of operation of the Services, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information:

(a) You shall not use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of Mixmax unless such Proprietary Information becomes generally publicly available without your breach of this Agreement.

(b) You agree to take reasonable measures to maintain the Proprietary Information and Services in confidence.

You may, at your discretion, provide feedback to Mixmax with respect the Services (“Feedback”). Feedback may include, without limitation, new feature suggestions or errors or difficulties discovered in the Services and the characteristic conditions and symptoms of the errors and difficulties. Mixmax shall own all right, title, and interest in the Feedback and you shall and hereby do make all assignments necessary to accomplish the same.

Mixmax takes the privacy of its users very seriously. For the current Mixmax Privacy Policy, please click here. If you are an account-holder with Mixmax, please note that personal data you provide or make available to Mixmax is subject to our Data Processing Addendum, which is incorporated into this Terms of Use by reference.  

The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 16; if you are a child under 16, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 16, we will delete that information as quickly as possible. If you believe that a child under 16 may have provided us personal information, please contact us at privacy@mixmax.com.

Your log-in to the Services is via the Gmail or Outlook OAuth service, and any messages you send through the Services originate with your Gmail or Outlook account and, for example, will be saved into your Gmail or Outlook “sent” folder).

You represent and warrant that you are of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Services in a manner that complies with all laws that apply to you. If you are using Mixmax open, click or download tracking, our Services will collect activities data about the recipient of your email. In order to use these features, you are responsible for obtaining any required consent of such recipients. If you are using Mixmax’s call recording feature, you are responsible for obtaining any legally required consents from, or providing any legally required notices to, individuals who are recorded via the call recording feature. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law.

You will not share your account or password with anyone, and you must protect the security of your account and your password. You’re responsible for any activity associated with your account.

Your use of the Services is subject to the following additional restrictions:

You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:

1. Infringes or violates the intellectual property rights or any other rights of anyone else (including Mixmax);
2. Violates any law or regulation, including, without limitation, any applicable export control laws;
3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
4. Jeopardizes the security of your Mixmax account or anyone else’s (such as allowing someone else to log in to the Services as you);
5. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
6. Violates the security of any computer network, or cracks any passwords or security encryption codes;
7. Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
8. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
9. Copies or stores any significant portion of the Content;
10. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

A violation of any of the foregoing is grounds for termination of your right to use or access the Services.

The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Mixmax’s) rights.

You understand that Mixmax owns the Services and “Mixmax” (the “Trademark”) is a registered trademark of Mixmax. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services and Trademark.

The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!

Anything you submit, share, store, or otherwise provide through the Services is your “User Submission.” You retain ownership of your User Submissions (subject to the licenses below and any third party rights therein). Some User Submissions are viewable by other users, for example, anything you send to your recipients via email will be viewable by them. In addition, User Submissions are viewable when you share a Sequence or Template, share an email via a share link, and when you enable people in your organization to view your messages in the Live Feed. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.

For all User Submissions, you hereby grant Mixmax a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.

If you store a User Submission in your own personal Mixmax account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Mixmax the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.

If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users, via a shared Template or Sequence, or via enabling members of your organization to see your emails in the Live Feed) (a “Limited Audience User Submission”), then you grant Mixmax the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services, or if you share your emails using a share link (each of the foregoing, a “Public User Submission”), then you grant Mixmax the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Mixmax users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Mixmax’s business for any purpose, provided that Mixmax will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your Mixmax account, we will stop displaying your User Submissions (other than Limited Audience User Submissions and Public User Submissions, which may remain fully available to other users), but you understand and agree that it may not be possible to completely delete that content from Mixmax’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users. In addition, User Submission that are sent to other users (such as emails or email attachments) may be retained by the recipient users.

Mixmax may also aggregate or anonymize User Submissions and use and disclose such aggregated or anonymized data for any purpose, including improving the Services. For avoidance of doubt, such aggregated or anonymized data shall not be capable of identifying you, the entity you represent, or any individual whose data you have provided Mixmax in connection with the Services.

Finally, you understand and agree that Mixmax, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.

The Services may contain links or connections to third party websites or services that are not owned or controlled by Mixmax. When you access third party websites or use third party services, you accept that there are risks in doing so, and that Mixmax is not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

Mixmax has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Mixmax will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.

We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.

You’re free to do that at any time, by contacting us at support@mixmax.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.

Mixmax is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Mixmax has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.

Account termination may result in deletion of any Content associated with your account, so keep that in mind before you decide to terminate your account.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

a. Warranty Disclaimer

Neither Mixmax nor its licensors or suppliers make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We will not be responsible or liable for the uptime or reliability of the Services. We (and our licensors and suppliers) make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE SERVICES AND CONTENT ARE PROVIDED BY Mixmax (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

b. Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL Mixmax (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO Mixmax IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

c. Indemnification

To the fullest extent allowed by applicable law, you agree to indemnify and hold Mixmax, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

d. Assignment

You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Mixmax’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

e. Disputes

Ideally, if you have any concerns or complaint against Mixmax, we would like to resolve the issue without resorting to formal court or arbitration proceedings. Therefore, before filing a claim against Mixmax, you agree to try to resolve the dispute informally by contacting support@mixmax.com. Mixmax will attempt to resolve the dispute informally (and will contact you via email). If a dispute is not resolved within 30 days of submission, you may bring a formal proceeding

f. DISPUTE RESOLUTION; BINDING ARBITRATION; JURY TRIAL AND CLASS ACTION WAIVER

These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. 

PLEASE READ THIS SECTION CAREFULLY.  IT CONTAINS AN ARBITRATION AGREEMENT (THE “ARBITRATION AGREEMENT”).  THIS ARBITRATION AGREEMENT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS.  THIS ARBITRATION AGREEMENT CONTAINS PROCEDURES FOR FINAL AND BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION (COLLECTIVELY, “CLASS ACTION”) IN ARBITRATION OR LITIGATION.

YOU AND MIXMAX ARE GIVING UP THE RIGHT TO HAVE A JURY TRIAL TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW AND TO FILE OR PARTICIPATE IN A CLASS ACTION SUBJECT TO THE LIMITED EXCLUSION BELOW. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY, AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

Most customer concerns can be resolved by emailing Customer Service at support@mixmax.com. In the event Customer Service is unable to resolve a complaint to your satisfaction, this Section explains how any Dispute (as defined below) will be resolved.

For purposes of this Section, the terms “MIXMAX,” “our,” “we,” or “us” include any persons or entities (including agents, representatives, or employees) related to Mixmax or its present or future affiliates or subsidiaries.

1. Arbitration Agreement. YOU AND MIXMAX AGREE THAT ANY DISPUTE (DEFINED BELOW) SHALL BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION EXCEPT AS OTHERWISE PROVIDED HEREIN. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY ELECT TO HAVE INDIVIDUAL CLAIMS HEARD IN SMALL CLAIMS COURT IF THOSE CLAIMS QUALIFY FOR SMALL CLAIMS COURT AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND IS NOT REMOVED OR APPEALED TO A COURT OF GENERAL JURISDICTION AND ADVANCES ONLY ON AN INDIVIDUAL (NON-CLASS ACTION) BASIS.  ANY DISPUTE OVER WHETHER CLAIMS QUALIFY FOR SMALL CLAIMS COURT IS FOR THE SMALL CLAIMS COURT TO DECIDE IN THE FIRST INSTANCE AND, IF NECESSARY, FOR A COURT OF COMPETENT JURISDICTION TO DECIDE.

You and Mixmax agree that these Terms of Use affect interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and federal arbitration law apply to this Arbitration Agreement and govern all questions as to whether a Dispute is subject to arbitration.

For purposes of this Section, “Dispute” shall include, but is not limited to, any claims or controversies between you and Mixmax that are related in any way to these Terms of Use, including, but not limited to, your use of Mixmax’s properties, Mixmax’s website, sales, returns, refunds, cancellations, defects, policies, privacy, advertising, and/or any communications between you and Mixmax, whether occurring on the Mixmax’s properties, website, or otherwise, even if the Dispute arises after the termination of your relationship with Mixmax. “Dispute” also includes, without limitation, claims that: (a) you bring against Mixmax; (b) Mixmax brings against you; (c) in any way relate to or arise out of any aspect of the relationship between you and Mixmax, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you entered into these Terms of Use or out of a prior agreement with Mixmax (including, without limitation, claims relating to advertising); (e) are subject to ongoing litigation where you are not a party or a member of a certified class; and/or (f) arise after the termination of these Terms of Use. “Dispute,” however, does not include disagreements or claims concerning patents, copyrights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property or claims for personal bodily injury, which shall not be subject to arbitration or the notice and informal process described below. The arbitrator shall decide all issues except for: (a) those that are specifically reserved for a court herein; (b) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement or any of the provisions of this Section; (c) any issues arising from or relating to the arbitrability of any Dispute and/or the forum in which a dispute should be arbitrated; and (d) whether the arbitration administrator cannot or will not administer the arbitration in accordance with this Arbitration Agreement—all of which are for a court of competent jurisdiction to decide. These Terms of Use and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency.

1. Mandatory Pre-Arbitration Informal Dispute Resolution. You and Mixmax agree to engage cooperatively, and in good faith, to try to resolve any Dispute prior to you or Mixmax initiating an arbitration proceeding.  You or Mixmax must first send a written notice (“Pre-Arbitration Notice”) to the other party providing the following: (a) a detailed description of the nature and the basis for the Dispute; (b) your or our name and contact information (address, telephone number, email address, and account number if applicable); (c) sufficient information to enable you or us to identify any transaction at issue (including any receipts or purchase details); and (d) a detailed description of the nature and basis of the relief sought (including a detailed calculation of any damages). Your notice to us must be personally signed by you (and your attorney if you are represented by legal counsel).  Our notice to you must be personally signed by a Mixmax representative (and our attorney if we are represented by legal counsel).

   Your Pre-Arbitration Notice to Mixmax must be sent to 548 Market St. PMB 60764, San Francisco, CA 94104-5401 and privacy@mixmax.com. Our Pre-Arbitration Notice to you must be sent to the most recent contact information that you have provided to us.

   For a period of 60 days from the date of receipt of a completed Pre-Arbitration Notice from the other party, you and we will work together using reasonable efforts to try to resolve the Dispute.  If requested by us in connection with a Pre-Arbitration Notice initiated by you, you agree to personally participate in an individualized telephone settlement conference (and if you are represented by an attorney, your attorney may also participate) to discuss a potential early resolution of the matter. If the Dispute is not resolved within this 60-day period (which can be extended by agreement of the parties), you or Mixmax may commence arbitration consistent with the process set forth below.  Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating arbitration.

   Any applicable limitations period (including statutes of limitations) shall be tolled while the parties engage in this informal dispute resolution process. 

   This pre-arbitration process is essential so that you and Mixmax have a meaningful chance to resolve disputes informally.  If the sufficiency of a Pre-Arbitration Notice or compliance with this informal dispute resolution process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed pending resolution of the issue.  The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees.  You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.

2. Arbitration Rules and Procedures; Individualized Relief; Fees. 

   Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (the “AAA”) pursuant to its Consumer Arbitration Rules, and, if applicable, its Mass Arbitration Supplementary Rules, that are in effect at the time the arbitration is initiated (the “AAA Rules”), as modified by the terms set forth in this Agreement.  Copies of the AAA rules can be obtained at the AAA’s website (www.adr.org). Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event, unless you and Mixmax agree otherwise, shall the arbitrator consolidate more than one person’s claims, or otherwise preside over any form of representative, collective, or class proceeding.  The parties may select a different arbitration administrator, forum, and/or third party neutral upon mutual written agreement. 

   To commence an arbitration proceeding, you must send an arbitration demand to the AAA and serve a courtesy copy on Mixmax’s Registered Agent/Legal Department, located at: 548 Market St PMB 60764 San Francisco, CA 94104-5401, or we must send an arbitration demand to AAA and serve a courtesy copy on you at the most current address we have on file.  The courtesy copy must be accompanied by a certification of completion of the informal dispute resolution process and a copy of the notice.  

   Any complaint or arbitration demand must be accompanied by a copy of the Pre-Arbitration Notice, and a certification personally signed by you or your attorney, if you are represented by legal counsel (if you are initiating arbitration) or by a Mixmax representative or our attorney, if we are represented by legal counsel (if we are initiating arbitration).  By filing a complaint or arbitration demand, the party and its attorney initiating the arbitration represent that to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (a) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery.  The arbitrator is expressly authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel if the arbitrator determines that a frivolous and/or improper claim was initiated by parties and/or their counsel.

   Payment of all arbitration fees will be governed by the AAA Rules as modified by this Arbitration Agreement, unless the parties mutually agree to a different arbitration provider.  Mixmax will consider a request to reimburse the consumer filing fee upon a demonstration of financial hardship.  

   You and we agree that the parties have a shared interest in reducing the fees and costs and increasing the efficiencies associated with arbitration.  Therefore, you or we may elect to engage with the AAA regarding fees, and you and we agree that the parties (and your and our counsel, if you and we are represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties. 

   The arbitration will be conducted by a single arbitrator who will apply these Terms of Use as a court would and will adjudicate any Dispute according to applicable law and facts based upon the record only.  

   Although under some laws Mixmax may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Mixmax agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that you or your counsel have violated the standards of Federal Rule of Civil Procedure 11, which the parties agree shall be applicable in arbitration . The cost-shifting provisions of Federal Rule of Civil Procedure 68 shall also apply and be enforced by the arbitrator after entry of an award.  An award that has been satisfied may not be entered in court.

   UNLESS BOTH YOU AND WE AGREE OTHERWISE, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL BASIS. CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED JOINTLY OR BE CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. ADDITIONALLY, YOU AND MIXMAX AGREE THAT THE ARBITRATOR MAY AWARD INDIVIDUAL RELIEF AVAILABLE IN COURT (INCLUDING, WITHOUT LIMITATION, DAMAGES, DECLARATORY, INJUNCTIVE, OR OTHER EQUITABLE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S PARTICULAR CLAIM. THE ARBITRATOR MAY NOT ISSUE A “PUBLIC INJUNCTION.” THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE CLASS ACTION WAIVER PROVISIONS. IF, FOR ANY REASON, A COURT OF COMPETENT JURISDICTION HOLDS THAT THESE RESTRICTIONS ARE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF OR ANY PRIVATE ATTORNEY GENERAL CLAIM), AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THE PARTIES AGREE THAT THE PARTICULAR CLAIM OR REQUEST FOR RELIEF MAY PROCEED IN A COURT OF COMPETENT JURISDICTION BUT SHALL BE STAYED PENDING ARBITRATION OF ALL REMAINING CLAIMS AND REQUESTS FOR RELIEF.

3. Additional Procedures for Coordinated Disputes/Filings. You and Mixmax agree that these procedures (in addition to all others provided in this Section) shall also apply if your claim is part of  a “Mass Filing” (defined below).

   If 25 or more similar Disputes (including yours) are asserted against Mixmax by the same or coordinated counsel or are otherwise coordinated (“Mass Filing”), the AAA’s Mass Arbitration Supplementary Rules and the additional procedures set forth herein shall apply.  You understand and agree that by choosing to be part of a Mass Filing, these additional procedures shall apply, and the resolution of your Dispute might be delayed.  The parties agree that throughout this process, their counsel shall meet and confer in an effort to informally resolve the Disputes, streamline procedures, address the informal exchange of information, modify the number of Disputes to be adjudicated and to promote efficiency, conservation of resources, and the resolution of claims.

   If your claim is part of a Mass Filing, the statute of limitations applicable to the claims and relief set forth in that Notice shall be tolled from the date the Pre-Arbitration Notice is received until your Dispute proceeds in arbitration or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this Section.

   A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Coordinated Disputes/Filings section of the Arbitration Agreement, including by enjoining the Mass Filing, the prosecution or administration of arbitrations, and the assessment or collection of arbitration fees.

   The Additional Procedures for Coordinated Disputes/Filings section of the Arbitration Agreement and each of its requirements are essential parts of this Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that this section applies to your Dispute and is not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms of Use.

   STAGE ONE: Assuming there are at least 50 Disputes submitted as part of the Mass Filing, your counsel and our counsel shall each select 25 Disputes (per side) to proceed as cases in individual arbitration proceedings as part of an initial staged process.  Alternatively, either side’s counsel may elect to have their 25 cases selected randomly. The number of Disputes to be selected to proceed as part of this initial staged process can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed in individual arbitrations. If a case is withdrawn without the consent of both parties, then another Dispute shall be selected consistent with the selection process referenced above to proceed as part of this Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If after this initial set of proceedings the parties are unable to informally resolve the remaining Disputes, they shall participate in a global mediation session with a retired federal or state court judge to be jointly selected by counsel for the parties in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and Mixmax shall pay the mediator’s fee.

   STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for Mixmax shall each select 50 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. Alternatively, either side’s counsel may elect to have their 50 Disputes selected randomly. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage Two). No more than 3 cases may be assigned to a single arbitrator to proceed individually unless the parties agree otherwise. If a case is withdrawn without the consent of both parties, then another Dispute shall be selected consistent with the selection process referenced above to proceed as part of this Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge to be jointly selected by counsel for the parties in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and Mixmax shall again pay the mediator’s fee.

   Upon the completion of the global mediation session set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall proceed with the adjudication of the remaining Disputes in individual arbitration proceedings consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel for the parties) or through another mutually-agreeable process.

   A court of competent jurisdiction shall have the authority to enforce this staging requirement of the Arbitration Agreement, including by enjoining the Mass Filing, the prosecution or administration of arbitrations, and the assessment or collection of arbitration fees.

4. Opt-out. You have the right to opt out of arbitration by sending your personally signed, written notice of your decision to opt out to the following address: 548 Market St PMB 60764 San Francisco, CA 94104-5401, postmarked within 60 days of the first time you agreed to terms with Mixmax that included an arbitration agreement. You must include: (a) your name and residential address; (b) the email address and/or telephone number associated with your account; and (c) a clear statement that you want to opt out of arbitration and seek to have any Dispute addressed in a court of competent jurisdiction consistent with these Terms of Use. By opting out of arbitration, all other provisions in these Terms of Use, including the class action waiver and jury trial waiver, remain in effect to the fullest extent permissible by applicable law.
5. Severability and Survival. Except as specifically provided in the Arbitration Agreement (e.g., the Additional Procedures for Coordinated Disputes/Filings), if any part or parts of this Arbitration Agreement is/are found by a court of competent jurisdiction to be invalid or unenforceable as to your Dispute, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. This Arbitration Agreement will survive the termination of these Terms of Use.
6. Future Changes to Arbitration Agreement. If we make any future changes to this Arbitration Agreement (other than a change to our mailing address), you may reject any such change by sending your personally signed, written notice to the following address: 548 Market St PMB 60764 San Francisco, CA 94104-5401, postmarked within 30 days of the change. Such written notice does not constitute an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and Mixmax in accordance with this version of the Arbitration Agreement.

B. Waiver of Jury Trial; Waiver of Class Actions. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, YOU AND MIXMAX WAIVE THE RIGHT TO A JURY TRIAL. YOU AND MIXMAX ALSO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN ARBITRATION OR IN LITIGATION IN COURT. NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION.

g. Miscellaneous

You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Mixmax may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Mixmax agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Mixmax, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Mixmax, and you do not have any authority of any kind to bind Mixmax in any respect whatsoever. You and Mixmax agree there are no third party beneficiaries intended under these Terms.