This TOU is subject to modification from time to time as described below and You can review the most current version at any time at: www.mercurien.com
By accessing, Downloading and/or using the Site or any other Company Services, you (You) accept and agree to be bound by, and become a party to, the terms and provisions of this TOU. If You do not agree to the terms and conditions of this Agreement or if You are not authorized to enter into or be bound by this Agreement, then do not access or use the Company Services or Site. This TOU is a legal agreement between You and Company and applies to You whether You are a user of the Site and/or other Company Services, a visitor just browsing the Site, or any other individual or entity accessing or using the Company Services (collectively, “Users”). All access to and use of the Site or other Company Services by You, including any content, information, products or services therein, are subject to the terms and conditions of this Agreement and conditioned upon You becoming a party hereto.
USE OF SITE AND OTHER COMPANY SERVICES
Company Services and Site. Provided You have agreed to comply with and are bound by this Agreement, You may use the Site and Company Services, subject to and in compliance with this Agreement and all applicable local, state, national and international laws, rules and regulations. Your right to access and use the Company Services and Site is non- exclusive, non-transferable, non-sublicenseable, and fully revocable. Use of any Company Services that are subject to special registration, restricted access or payment is further subject to the other terms and conditions specified by the Company as applicable to the use of such other Company Services. o Proprietary Rights. Title to and ownership of the Company Services, including the Site and all intellectual property rights therein and thereto, are and shall remain the exclusive property of Company and its suppliers and licensors, and, subject to the limited rights and license expressly granted hereunder, Company and its licensors retain all right, title and interest in and to the Company Services and the Site and in and to all of Company’s other intellectual property rights. Without limiting the foregoing, the names, marks, brands, logos, designs, trade dress and other designations used in connection with the Company Services and Site are proprietary to Company and its licensors and no rights or licenses thereto are granted hereunder. No intellectual property or other rights or licenses are granted or otherwise provided by Company under this Agreement, by implication, estoppel or otherwise, beyond those expressly provided for herein. You acknowledge that any unauthorized copying or use of the Company Services or Site is a violation of this Agreement and copyright laws and is strictly prohibited. o Restrictions and Limitations. You may only use the Company Services for personal, non-commercial use, unless expressly authorized in writing by Company. You shall have no right to, and shall not, reverse engineer, disassemble, decompile, copy, modify, spider, crawl, or create derivative works of or based on, sell, resell, display, distribute, disseminate, rent or lease the Company Services or Site or any part thereof, except to the extent applicable law otherwise requires You to be allowed to do so. You shall not remove, alter or conceal any copyright or trademark or other proprietary rights notices incorporated in or accompanying the Site or Company Services. You shall comply with all applicable laws, in your use of the Company Services and the Site and shall not use any of them for purposes for which they are not designed. Company may also suspend or terminate a Users account and/ or access to the Company Services at any time and for any reason (or no reason), in its sole discretion. o User Accounts: You must be at least 12 years of age to use, sign-up or register for the Site or other Company Services. If You sign up or register with Company and/or set up your Company account, You agree that all information provided to Company upon sign up and/or registration and at all other times through the Site or any Company Services will be true, accurate, current and complete (which includes use of your real name). You are entirely responsible for maintaining the confidentiality of your account information and any password. You agree not to (a) use the account, username, or password of another User, or (b) disclose your password to, or share your account with, any third party or allow or authorize any individual or entity to use your account or user ID with Company. You agree to notify Company immediately if you suspect any unauthorized use of your account or access to your password or account. You are solely responsible for any and all use of your account.
COMPANY INFORMATION AND MATERIALS
Company may provide certain information and other content on, through or to the Site and the Company Services. “Company Materials” mean all information, content, software and other materials originating from Company (or its non-User licensors) and made available through the Site and Company Services, including, without limitation, information, data, graphics and files made available through the Site and Company Services as well as the Company logo, and all Company designs, text, data, graphics, other files, and the selection and arrangement thereof. Company and its licensors own and reserve all rights, title and interest, including all worldwide intellectual property rights, in and to the Site, Company Services, Company Materials, and the trademarks, service marks and logos contained therein. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company Materials. You will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Company Materials. o Company Marks and Trade Dress. The Company name and logo are trademarks of Company, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company. In addition, all page headers, o No Reliance On Content. All Company Materials and User custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Company, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company. Content are provided for your convenience only on an as is basis without warranty of any kind. Company does not endorse, support, represent or guarantee the qualifications, expertise, experience or identity of the providers of any such Company Materials or User Content, and Company does not warrant, guarantee, support, verify or otherwise have any responsibility for the completeness, truthfulness, accuracy or reliability of any Company Materials or User Content, including without limitation any information contained therein or any opinions or communications posted on, obtained from or available through, the Company Services or the Site. All use of and reliance upon any such information (or any Company Materials or User Content generally) by You shall be solely your responsibility and at your sole risk.
Non-Infringing Content Sharing. The Company Services may offer Users the opportunity to submit or share content or information. Company prohibits copyright infringement or the infringement of other intellectual property rights through the Company Service. Company respects the copyright and other rights of content owners and requires its Users to do the same when using the Company Service. Accordingly, You understand that all information, communications, video, music, movies, data, text, software, sound, photographs, graphics, messages or other materials, in any event excluding all Company Materials (as defined below), submitted, shared, posted, uploaded, provided, displayed, transmitted, streamed, broadcast or otherwise made accessible (collectively Shared) on, to or through the Site and/or Company Services (“User Content”), are the sole responsibility of the person from which such User Content originated. You affirm, represent and warrant that You own or have the necessary licenses, rights, consents and permissions to Share any User Content You Share on, through or to the Company Service You further agree that User Content You Share on, through or to the Company Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless You have the necessary permissions from the rightful owner of the material. In particular, and without limitation, before Sharing User Content (such as music or video) through the Company Services which originates from a third party website, application or service, You must first ensure that You have the right to do so in accordance with the terms and conditions for such website, application or service. Content Removal Policy. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If a rights holder believes that User Content has been copied in a way that constitutes copyright infringement, such rights holder or its agent or designee should provide our copyright agent with the following information in accordance with the Digital Millennium Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) contact information, including address, telephone number, and an email address; (v) a statement by the rights holder or its agent or designee indicating a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that the author is authorized to act on behalf of the copyright owner. Company reserves the right to remove, block or otherwise stop the Sharing of User Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. o Inappropriate and Illegal Content. You agree not to Share any User Content on, through or to the Company Services that is contrary to applicable laws and regulations or that (a) is pornographic, sexually explicit, obscene or indecent, (b) depicts real-life abusive, violent or illegal activity (subject to reasonable exceptions for legitimate news and educational materials), (c) communicates hate speech, threats, harassment, intimidation or invades another’s privacy, or (d) violates the rights of others. o Other Users Content. You understand that by using the Company Services, You may be exposed to User Content that is offensive, indecent, inaccurate, objectionable or otherwise inappropriate. We may or may not (and are not required to) screen, monitor or control the User Content Shared on the Site or on, through or to the Company Services, including any communications, information or other User Content from other Users or other parties. Under no circumstances will Company be liable in any way for (and You release Company from, and waive any rights to bring or assert any claims for, any liabilities arising from) any User Content, including any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of or reliance upon any User Content.. You may not use User Content that is Shared on, through or to the Company Services or Site in a manner that exceeds the rights granted for your use of such User Content, which includes unauthorized copying, display, use or distribution of the User Content or creating an unauthorized derivative work. You may not circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the User Content.
Rights to User Content.
You agree that You are responsible for your own conduct and User Content while using the Site and/or Company Services and for any consequences thereof. You agree to use Company Services and the Site only for purposes that are legal, proper and in accordance with the Agreement and any applicable laws, regulations, rules, policies or guidelines. By way of example, and not as a limitation, You agree that when using Company Services and the Site, You will not: o defame, abuse, harass, stalk, spam, threaten or otherwise o upload, post, display, transmit or otherwise Share any o upload, post, display, transmit or otherwise Share any User o upload, post, display, transmit or otherwise Share messages violate the legal rights (such as rights of privacy and publicity) of others; inappropriate, defamatory, libelous, infringing, obscene, or unlawful User Content; Content that infringes, misappropriates or violates any patent, trademark, copyright, trade secret or other proprietary right or privacy right of any party; that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, the Agreement or any applicable policies or guidelines; o conduct any advertising or commercial activity on or through the Company Service without the prior written permission of Company; o use Company Services or the Site for any illegal or unauthorized purpose; o download any file posted by another that You know, or reasonably should know, cannot be legally distributed in such manner; o impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material; o restrict or inhibit any other user from using and enjoying Company Services or the Site; o modify, adapt, appropriate, reproduce, distribute, translate, reverse engineer, create derivative works of, publicly display, sell, trade, or exploit the Company Services or Site (including any Company Materials or User Content (other than your own User Content)), except as expressly authorized by Company; o remove or modify any copyright, trademark or other proprietary rights notices contained in or on the Company Services or the Site; o interfere with or disrupt (or access non-public parts of) the Company Services or the Site or servers or networks connected to the Company Services or the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Company Services or the Site; o use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of Company Services or the Site or collect information about users for any unauthorized purpose; o submit User Content that falsely expresses or implies that such User Content is sponsored or endorsed by Company; o create user accounts by automated means or under false or fraudulent pretenses; o remove, circumvent, disable, damage or otherwise interfere o promote or provide instructional information about illegal o transmit, submit links to, upload, post, provide or otherwise with any security-related features of the Site or Company Services, features that prevent or restrict the use of copying of the Site or Company Services or features that enforce limitations on the use of the Site or Company Services; activities or promote physical harm or injury against any group or individual; or Share any viruses, worms, defects, Trojan horses, or any items of a destructive or malicious nature. International users agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to the Australia or your country of residence.
THIRD PARTY LINKS AND APPLICATIONS
The Company Services and Site may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom. Links to such websites and resources do not imply any endorsement by Company thereof or of the content, products or services thereon. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Third Party Services and Applications.
VII. TERMINATION AND MODIFICATION OF COMPANY SERVICES & AMENDMENT OF AGREEMENT.
Termination and Modification. Company reserves the right, o Termination of User. Without limiting other remedies, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate the Site and/or Company Services without advance notice. All modifications and additions to the Site and/or Company Services shall be governed by this Agreement, unless otherwise expressly stated by Company in writing. Company may also modify or amend this Agreement in its sole discretion without advance notice by posting the modifications or amended Agreement on the Site. All modified terms and conditions will be effective after they are posted on the Site (unless a longer notice period is required by applicable law). If any modified terms and conditions are not acceptable to You, your sole remedy is to cease using the Site and Company Services, and if applicable, cancel your Company account. By continuing to access or use the Site and/or Company Services after Company makes any such revision, You agree to be bound by the revised Agreement. This Agreement may not otherwise be modified or amended, except with the written agreement of both parties. Company may immediately terminate or suspend your access to the Site and/or Company Services and remove any material (including User Content) from the Site or our servers, in the event that You breach this Agreement. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Site and/or Company Services at any time and for any reason or no reason. o Effect of Termination: After any termination by You or Company: You understand and acknowledge that we will have no further obligation to provide or allow access to the Company Services or the Site. Upon termination, all licenses and other rights granted to You by this Agreement will immediately cease. Company is not liable to You or any third party for termination of the Company Services or termination of your use of the Company Services or the Site. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING ANY USER CONTENT OR OTHER USER SUBMISSIONS) THAT YOU HAVE SUBMITTED, POSTED, UPLOADED OR OTHERWISE MADE AVAILABLE ON THE SITE AND/OR COMPANY SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, except as may be required by applicable law, Company will have no obligation to store or maintain any User Content or other information stored in our database related to your account or to forward any information to You or any third party. Any suspension, termination or cancellation will not affect your obligations to Company under this Agreement (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
INDEMNIFICATION; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
You agree to defend, indemnify, and hold Company, its officers, directors, employees, agents, publishers, collaborators and business partners harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Site, Company Services, Company Materials and User Content; (ii) your violation of the Agreement; (iii) your violation of any applicable laws, rules or regulations; (iv) any User Content posted, uploaded or provided by You; or (v) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right. o Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT IS AT YOUR SOLE RISK AND COMPANY SHALL NOT BE LIABLE FOR ANY INABILITY TO USE, OR ANY DELAYS, ERRORS OR OMISSIONS WITH RESPECT TO THE COMPANY SERVICES OR SITE. THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE SITE OR COMPANY SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SITE AND COMPANY SERVICES WILL BE UNINTERRUPTED, AVAILABLE FOR USE AT ANY GIVEN TIME, TIMELY, SECURE, OR ERROR-FREE, (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR COMPANY SERVICES WILL BE ACCURATE, RELIABLE OR OTHERWISE MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN ANY SOFTWARE AVAILABLE THROUGH THE SITE OR COMPANY SERVICES WILL BE CORRECTED. o Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PUBLISHERS, COLLABORATORS, BUSINESS PARTNERS AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, COMPANY SERVICES, COMPANY MATERIALS, USER CONTENT, INFORMATION AND RESULTS AND OTHER CONTENT AND INFORMATION AVAILABLE THROUGH THE SITE OR COMPANY SERVICES, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL COMPANY’S (OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS) CUMULATIVE LIABILITY TO YOU EXCEED US $1,000.00, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You to the extent applicable law so requires.
ADDITIONAL USER REPRESENTATIONS
You acknowledge, represent and warrant that: (a) You own or have the authority to use the computer or device on which You are using or accessing the Company Services or Site; (b) your access and use of the Company Services will not violate any local, state or federal laws that apply to You; (c) You have read and fully understand the terms of this Agreement; (d) You have due authority and adequate legal capacity to enter into this Agreement; (f) You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this TOU; and (g) You are over the age of 13, as the Company Services are not intended for children under 13.
The Agreement constitutes the entire agreement between You and Company and supersedes any prior agreements, understandings or arrangements between You and Company. You may not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by You without the appropriate prior written consent of Company will be null and void. Company may assign the Agreement or any rights hereunder without your consent. The Agreement and the relationship between You and Company shall be governed by the laws of the State of California, without regard to or application of its conflict of law provisions, rules and principles. You agree to submit to the personal jurisdiction of the courts located in San Francisco County, California for the purpose of litigating all such claims. Further You agree that You must bring any claim arising out of or related to this License Agreement, or the relationship between You and us, within one (1) year after the claim arises, or the claim will be permanently barred. The failure or delay of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the full extent consistent with applicable law, and the other provisions of the Agreement remain in full force and effect. You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The section titles in the Agreement are for convenience only and have no legal or contractual effect. Company may provide notices to You with respect to this Agreement, the Site or the Company Services by posting such notices to the Site or by sending them to the e-mail address or other contact address You provide upon registration or setting up your account. Any such notices shall be deemed properly and timely given to You hereunder. You consent to the use of: (a) electronic means to complete this Agreement and to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Site and Company Services.
VIOLATIONS AND COMMENTS
Please report any violations of the Agreement or provide any comments or questions by emailing us at [email protected] or www.mercurien.com . You agree, however, that: (i) by submitting ideas regarding the Company Services or Site to Company or any of its employees or representatives, You automatically forfeit your right to any intellectual property rights in these ideas; and (ii) ideas regarding the Company Services or the Site submitted to Company or any of its employees or representatives (including any improvements or suggestions) automatically become the property of Company. You hereby assign and agree to assign all rights, title and interest You have in such comments and ideas to Company together with all intellectual property rights therein.