These Terms and Conditions (these “Terms”) explain the terms by which you may access and use the online and/or mobile software and services (collectively, the “Merico Services”) provided by Merico, Inc. (“Merico,” “we,” “our,” or “us”) and its affiliates. By accessing or using the Merico Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Policy (“Privacy Policy”), whether or not you are a registered user of the Merico Services. These Terms apply to all visitors, users, and others who access or use the Merico Services (“Users”).
Please read these Terms carefully to ensure that you understand each provision. You acknowledge that, as further detailed below, by agreeing to these Terms, you are agreeing that:
These Terms and Conditions (these “Terms”) explain the terms by which you may access and use the online and/or mobile software and services (collectively, the “Merico Services”) provided by Merico, Inc. (“Merico,” “we,” “our,” or “us”) and its affiliates. By accessing or using the Merico Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Policy (“Privacy Policy”), whether or not you are a registered user of the Merico Services. These Terms apply to all visitors, users, and others who access or use the Merico Services (“Users”).
Please read these Terms carefully to ensure that you understand each provision. You acknowledge that, as further detailed below, by agreeing to these Terms, you are agreeing that:
1. The Merico Services
1.1 Eligibility.
These Terms are a contract between you and Merico. You must read and agree to these Terms before using the Merico Services. If you do not agree to the terms and conditions of these Terms, you do not have our permission to use the Merico Services. You may use the Merico Services only if you can form a binding contract with Merico, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Merico Services by anyone under eighteen (18) years of age is strictly prohibited and in violation of these Terms. The Merico Services are not available to any Users previously removed from the Merico Services by Merico.
1.2 Limited License.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Merico Services as permitted by the features of the Merico Services. Merico reserves all rights not expressly granted herein in the Merico Services and the Merico Content (as defined below). Merico may terminate this license at any time for any reason or no reason.
1.3 Merico Accounts.
To access the services and functionality of the Merico Services that we may establish and maintain from time to time, you may be required to register for one or more accounts for each of the Merico Services (collectively, the “Merico Accounts”). We may maintain different types of Merico Accounts for different types of Users. If you open a Merico Account on behalf of a company, organization, or other entity, then: (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. By connecting to the Merico Services with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s Merico Accounts without permission from Merico and the other User. When creating your Merico Accounts, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Merico Accounts, and you must keep your passwords for your Merico Accounts secure. We encourage you to use “strong” passwords (passwords that use a combination of uppercase and lowercase letters, numbers and symbols) with your Merico Accounts. You must notify Merico immediately of any breach of security or unauthorized access or use of your Merico Accounts. Merico will not be liable for any losses caused by any unauthorized access or use of your Merico Accounts.
You may control your User profile and how you interact with the Merico Services by changing the settings in your settings page. By providing Merico your email address you consent to our using the email address to send you notices related to the Merico Services, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of the Merico Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences at any time in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.3.1 Administrative Accounts.
Merico may offer administrative Merico Accounts (“Administrative Accounts”) that can exercise certain options to initially determine the level of access, privacy, and security for other, related Merico Accounts. Administrative Accounts may also have the ability to disable other, related Merico Accounts for any reason or no reason. Administrator Accounts must comply in all respects with all terms and conditions applicable to Merico Accounts generally.
1.4 Merico Services Rules.
When using the Merico Services, you agree not to: (a) upload or transmit pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content or materials; (b) except where expressly permitted, use the Merico Services to engage in spamming, "chain letters", "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms, the Privacy Policy or any applicable laws; (c) use the Merico Services in any manner that infringes, violates or misappropriates any third party’s proprietary rights, including any Intellectual Property Rights or privacy rights; (d) use the Merico Services in any manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities; (e) use the Merico Services in any manner that is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another's privacy; (f) use the Merico Services in any manner that is harmful to minors in any way; (g) use the Merico Services in any manner that is hateful or discriminatory based on race, color, gender, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by Merico; (h) use the Merico Services in any manner that in our sole discretion could damage, disable, overburden, or impair the Merico Services; (i) attempt to gain unauthorized access to the Merico Services, or any part of them, other Merico Accounts, computer systems or networks connected to the Merico Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Merico Services or any activities conducted on the Merico Services; (j) modify the Merico Services in any manner or form, or use modified versions of the Merico Services, including but not limited to for the purpose of obtaining unauthorized access to the Merico Services; (k) use any robot, spider, scraper, or other automated means to access the Merico Services for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Merico Services; (l) impersonate another person or access another User’s Merico Accounts without that User’s permission or to violate any contractual or fiduciary relationships; (m) share Merico-issued passwords with any third party or encourage any other User to do so; (n) modify, adapt, translate or create derivative works based upon the Merico Services; (o) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Merico Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (p) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Merico Services to any third party; (q) provide time sharing or similar services for any third party; (r) use the Merico Services for any purpose other than your own internal business use; (s) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Merico Services, features that prevent or restrict use or copying of any content accessible through the Merico Services, or features that enforce limitations on use of the Merico Services; (t) access the Merico Services if you are a direct competitor of Merico, except with Merico’s prior written consent, or for any other competitive purposes; (u) collect or harvest any personally identifiable information, including account names, from the Merico Services; or (v) attempt, or assist any third party in attempting or engaging in, any of the foregoing.
1.5 Disputes with other Users.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. MERICO SHALL HAVE NO LIABILITY FOR YOUR INTERACTIONS WITH OTHER USERS, OR FOR ANY USER’S ACTION OR INACTION, INCLUDING, WITHOUT LIMITATION, ANY DISABLING OF YOUR MERICO ACCOUNT BY AN ADMINISTRATIVE ACCOUNT.
1.6 Third Party Systems and Services Access by Merico. You may choose to allow Merico to retrieve data from third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow Merico to access such systems and services and you hereby grant Merico permission to access such systems and services and retrieve your data therefrom (such data, “Your Data”). Merico disclaims any and all liability associated with accessing and retrieving Your Data from such systems and services on your behalf. In order to connect the Merico Services with any third-party service, you hereby designate Merico as your agent and attorney-in-fact in connection with such service and further authorize Merico to: (a) store Your Data relating to such service on the Merico Services; (b) access such third-party service using any credentials or other materials you provide us; (c) gather and export from such third-party service any of Your Data as reasonably necessary for us to provide the Merico Services to you; and (d) otherwise take any action in connection with such service as is reasonably necessary for us to provide the Merico Services to you. If at any time you do not have the right and authority to allow Merico automatic access to such systems or services, then you hereby agree to notify Merico and to immediately disable such functionality within your Merico Accounts.
1.7 Third-Party Links and Information on the Merico Services.The Merico Services may contain links to third-party websites, information, materials, products, or services that are not owned or controlled by Merico. Merico does not endorse or assume any responsibility for any such third-party websites, information, materials, products, or services. If you access third-party sites, information, materials, products, or services from the Merico Services or share your User Submissions (as defined below) on or through any third-party sites, information, materials, products, or services, you do so at your own risk, and you understand that these Terms and Merico’s Privacy Policy do not apply to your access and use of such third-party websites, information, materials, products, or services. You expressly relieve Merico from any and all liability arising from your use of any third-party websites, information, materials, products, or services including without limitation your importing of Your Data from such third-party sites, information, materials, products, or services.
1.8 Changes to the Merico Services.
We may, without prior notice: (a) change the Merico Services; (b) stop providing the Merico Services or features of the Merico Services, to you or to Users generally; or (c) create usage limits for the Merico Services. We may permanently or temporarily terminate or suspend your access to the Merico Services without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
2. User Submissions
Some areas of the Merico Services allow Users to import, submit, provide, or otherwise make available content such as code, data (including, but not limited to, Your Data), text, materials, content or other information (any such materials a User submits, provides, or otherwise makes available on the Merico Services is referred to as “User Submissions”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER SUBMISSIONS CREATED BY YOU. THE USER SUBMISSIONS YOU CREATE REMAINS YOURS; however, by importing, submitting, providing, or otherwise making available any User Submissions on or through the Merico Services, you hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to Merico a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Submissions as necessary to operate the Merico Services and for the limited purposes described in our Privacy Policy. You also hereby grant each User of the Merico Services a non-exclusive license to access your User Submissions through the Merico Services, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Merico Services and under these Terms. Notwithstanding the preceding license grant to other Users, Merico may allow you to set certain permissions for your User Submissions using the features and functionalities of the Merico Services – including, without limitation, designations of public or private viewing and access of your User Submissions – and each User of the Merico Services will be able to access and use your User Submissions in accordance with your permissions (including, without limitation, by “forking” any of your User Submissions by creating their own copies of your publicly available User Submissions).
For the purposes of these Terms, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Submissions, you affirm, represent and warrant the following:
Merico takes no responsibility and assumes no liability for any User Submissions that you or any other User submits, provides or otherwise makes available over the Merico Services. You shall be solely responsible for your User Submissions and the consequences of importing it, submitting it, providing it, or otherwise making it available on the Merico Services, and you agree that we are only acting as a passive conduit for your online distribution of your User Submissions.
3. Our Proprietary Rights
Except for your User Submissions, the Merico Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Submissions belonging to other Users (the “Merico Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Merico and its licensors (including other Users who submit, post, or otherwise make available User Submissions to the Merico Services). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Merico Content. Use of the Merico Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Merico Services and Merico’s products and services, including without limitation about how to improve the Merico Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Merico under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Merico does not waive any rights to use similar or related ideas previously known to Merico, or developed by its employees, or obtained from sources other than you.
4. Paid Features of the Merico Services
4.1 Fees.
We may charge you fees (“Fees”) for your access and use of the Merico Services. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of the Merico Services (“Ordering Document”). For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. Merico may add new services for additional fees and charges and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms; provided however that if we have offered a specific duration and Fees for your use of the Merico Services, we agree that the Fees will remain in force for that duration.
4.2 Subscription Services. Merico may make the Merico Services available on an automatically renewing subscription basis (such services, the “Subscription Services”). Merico will identify any Subscription Services to you prior to submitting your order for the applicable Subscription Services. The following terms shall apply to any and all Subscription Services made available by Meric
4.2.1 Automatic Billing and Policies.
YOUR SUBSCRIPTION TO ANY OF MERICO’S SUBSCRIPTOIN SERVICES WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE SUBSCRIPTION SERVICES IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 4.2.2 OF THESE TERMS. When you purchase or otherwise enroll in Subscription Services, you expressly acknowledge and agree that: (1) Merico and its third-party payment processors are authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of the Subscription Services, subject to adjustment as described in Section 4.1 of these Terms, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or the Subscription Services are suspended, discontinued or terminated in accordance with these Terms. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in Fees in accordance with these Terms, and changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts.
4.2.2 Cancellation.
To cancel the Subscription Services, you must notify us before the start of the next Subscription Term using the appropriate functionalities of the Subscription Services or by contacting us at legal@merico.dev.
4.3 No Refunds.
You may cancel your Merico Accounts or the Subscription Services at your sole discretion; however, Merico does not grant refunds for cancellation and you acknowledge and agree that you will not be refunded any Fees for your cancellation of your Merico Accounts or the Subscription Services. In the event that Merico suspends or terminates your Merico Accounts or the Subscription Services for your breach of these Terms, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Subscription Services, any content or data associated with your Merico Accounts, or for anything else.
4.4 Payment Information; Taxes.
We or our third-party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for your Merico Accounts or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Merico Accounts must be accurate, complete, and current. You may change your payment method by using the features and functionality of your Merico Accounts or by notifying us at legal@merico.dev
4.5 You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Merico Services at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days, we may (without notice and liability to you) suspend or temporarily disable all or part of your access to the Merico Services and we shall be under no obligation to provide any or all of the Merico Services while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
4.6 Payment Processing Services.
We use third-party payment processors (“Payment Processors”) for our payment processing services. In connection with the processing of any payments through the Merico Services, the Payment Processor – not Merico – retains your financial information. We do not retain any of your financial information, including without limitation any of your credit card information. One of our Payment Processors is Stripe, Inc. (“Stripe”). To see how Stripe, access and uses your personal information, including without limitation your financial information, and to see what information we receive from Strip, please see: (a) Stripe’s Stripe Connect Platform Agreement, available as of the effective date of these Terms at: https://stripe.com/us/connect/legal, and (b) Stripe’s privacy policy, available as of the effective date of these Terms at: https://stripe.com/us/privacy.
5. Privacy
We care about the privacy of our Users. You understand that by using the Merico Services: (a) you consent to the collection, use and disclosure of your personally identifiable information and aggregate and/or anonymized data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States; and (b) the Blockchain Technology (as defined below) is not subject to Merico’s Privacy Policy.
6. Security
Merico uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. DMCA Notice
Since we respect artist and content owner rights, it is Merico’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Merico Services, please notify Merico’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Company: Merico, Inc.
Address: 75 Broadway, Ste. 202
Tel.: (650) 449-4055Email:
legal@merico.dev
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Merico that your copyrighted material has been infringed. The preceding requirements are intended to comply with Merico’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Merico has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Merico may also at its sole discretion limit access to the Merico Services and/or terminate the Merico Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
8. Indemnity
You agree to defend, indemnify and hold harmless Merico, its affiliates and each of their subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Merico Services, including any data or content transmitted or received by you; (b) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) your User Submissions or any content that is submitted via your Merico Accounts; (f) your willful misconduct; or (g) any other party’s access and use of the Merico Services with your unique username, password or other appropriate security code.
9. Third Party Advertisers
Your dealings with or participation in promotions of advertisers found on the Merico Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Merico shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
10. No Warranty
THE MERICO SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE MERICO SERVICES ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MERICO SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MERICO OR THROUGH THE MERICO SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, MERICO AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE MERICO SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE MERICO SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE MERICO SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MERICO SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE MERICO SERVICES.
FURTHER, MERICO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE MERICO SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MERICO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERICO, ITS AFFILIATES, AND EACH OF THEIR AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE MERICO SERVICES. UNDER NO CIRCUMSTANCES WILL MERICO BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE MERICO SERVICES OR YOUR MERICO ACCOUNTS OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MERICO, ITS AFFILIATES, AND EACH OF THEIR AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE MERICO SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE MERICO SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE MERICO SERVICES; AND/OR (VII) USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL MERICO, ITS AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO MERICO TO ACCESS THE MERICO SERVICES OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MERICO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law. You agree that: (i) the Merico Services shall be deemed solely based in California; and (ii) the Merico Services shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
12.2 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MERICO. For any dispute with Merico, you agree to first contact us at legal@merico.dev and attempt to resolve the dispute with us informally. In the unlikely event that Merico has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Merico agree otherwise. If you are using the Merico Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Merico Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Merico from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
12.3 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE MERICO SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, 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, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MERICO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
13. General
13.1 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Merico without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2 Notification Procedures and Changes to these Terms. Merico may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Merico Services, as determined by Merico in our sole discretion. Merico reserves the right to determine the form and means of providing notifications to our Users; provided that, you may opt out of certain means of notification as described in these Terms. Merico is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Merico may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Merico Services after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) the Merico Services.
13.3 No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Merico’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
13.4 Contact. Please contact us at legal@merico.dev with any questions regarding these Terms or the Merico Services.
13.5 Disclosures; California Residents. The provider of the Merico Services is Merico, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
13.6 Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with Merico in connection with the Merico Services, shall constitute the entire agreement between you and Merico concerning the Merico Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.