Terms of Service

Merciv, Inc. (“Merciv,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our websites located at https://www.merciv.io/ and https://www.merciv.com/ (collectively, the “Websites,” and each, a “Website”), and our web-based platform which is made available by Merciv or its authorized resellers or distributors (“Platform”), subject to the following terms and conditions (“Terms of Service”).

By visiting our Website, and/or by signing up to access and use the Platform, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Service and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not use the Websites and the Platform. We may change the terms and conditions of these Terms of Service from time to time with or without notice to you. By continuing to access and/or use any Website and/or the Platform after we have posted a modification on the Websites and/or the Platform, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Websites and the Platform.

Merciv provides Customers and Authorized Users with access to its Platform subject to the terms and conditions of that certain customer agreement between Merciv and Customer (“Customer Agreement”). If there is a conflict between these Terms of Service and the Customer Agreement, the Customer Agreement will take precedence with respect to Customers and Authorized Users use of or access to the Platform.

Capitalized terms not defined in these Terms of Service shall have the meaning set forth in our Privacy Policy.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

USE OF PERSONAL INFORMATION

Your use of the Websites or the Platform may involve the transmission to us of certain personal information. Our policies with respect to the collection and use of such personal information are governed according to our Privacy Policy (located at www.merciv.com/privacy), which are hereby incorporated by reference in its entirety.

RESTRICTIONS ON USE

You will not (and will not authorize, permit, or encourage any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Websites and the Platform; (iii) modify, adapt, or translate the Websites and the Platform, or any portion or component thereof; (iv) make any copies of the Websites and the Platform, or any portion or component thereof; (v) resell, distribute, or sublicense the Websites and the Platform, or any portion or component thereof; (vi) remove or modify any proprietary markings or restrictive legends placed on the Websites and the Platform; (vii) use the Websites and the Platform, or any portion or component thereof in violation of any applicable law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Websites and the Platform any virus, worm, “black door,” Trojan Horse, or similar harmful code; (ix) save, store, or archive any portion of the services (including, without limitation, any data contained therein) outside the Platform other than those outputs generated through the intended functionality of the Websites and the Platform without our prior, written permission in each instance; (x) make the Websites and the Platform available in connection with service bureau, timeshare, service provider or like activity whereby you operate the Websites and the Platform for the benefit of a third party; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Websites and the Platform.

If you violate this section, we reserve the right in its sole discretion to immediately deny you access to the Websites and the Platform, or any portion of thereof, without notice. We reserve the right to change the availability of any feature, function, or content relating to the Websites and the Platform, at any time, without notice or liability to you.

ELIGIBILITY

The Platform is available only for individuals aged 18 years or older. If you are under 18 years of age, then please do not access and/or use the Platform. By entering into this Agreement, you represent and warrant that you are 18 years or older.

ACCOUNT CREATION

In order to access and use the Platform, each Authorized User must create an account by providing their email address and creating a password (collectively “Account Credentials”). When creating your account, you must provide true, accurate, current, and complete information. Account Credentials cannot be shared between Authorized Users or by any Authorized User with a third party. Account Credentials must be kept confidential. You agree to immediately notify us of any unauthorized use or suspected unauthorized use of any Account Credentials. You are fully responsible for all activities, and use or misuse of the Platform, that is associated with any Authorized User’s Account Credentials. You are also responsible for ensuring that your Authorized Users comply with these Terms of Service. You will promptly inform us of any need to deactivate or change any Account Credentials. We have the right to disable any Platform account username or password at any time for any reason, including if in our sole discretion we believe that you have failed to comply with these Terms of Service. Merciv is under no obligation to accept any individual as an Authorized User of the Platform and may accept or reject any user in its sole and complete discretion.

COMMUNITY GUIDELINES

Merciv’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using any Website or the Platform, you agree to comply with these community guidelines (the “Community Guidelines”) and that:

You will comply with all applicable laws in your use of the Websites and the Platform and will not use the Websites and the Platform for any unlawful purpose;

You will not upload, post, e-mail, transmit, or otherwise make available any content that:

infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.

You will not “stalk,” threaten, or otherwise harass another person;

You will not access or use the Websites and the Platform to collect any market research for a competing business;

You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

You will not interfere with or attempt to interrupt the proper operation of the Websites and the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Websites and the Platform through hacking, password or data mining, or any other means;

You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Websites and the Platform;

You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the Websites and the for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and

You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.

You will let us know about in appropriate content of which you become aware. If you find something that violates our Community Guidelines, please let us know, and we’ll review it.

We reserve the right, in our sole and absolute discretion, to deny you access to the Websites and/or the Platform, or any portion of thereof, without notice, and to remove any content that does not adhere to these Community Guidelines.

INTELLECTUAL PROPERTY

The Websites and the Platform contains material, such as software, text, graphics, images, sound recordings, audiovisual works, tutorials, and other material provided by or on behalf of Merciv (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

If you violate any part of this Agreement, your permission to access and/or use the Content automatically terminates and you must immediately destroy any copies you have made of the Content.

The trademarks, service marks, and logos of Merciv (“Merciv Trademarks”) used and displayed on the Websites and the Platform are registered and unregistered trademarks or service marks of Merciv. Other company, product, and service names located on the Websites and the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Merciv Trademarks, the “Trademarks”). Nothing on the Websites and the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Merciv Trademarks inures to our benefit.

Elements of the Websites and the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

SUBSCRIBER DATA

Merciv will use Subscriber Data provided by Customer and its Authorized Users in accordance with the Customer Agreement.

COMMUNICATIONS WITH US

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.

NO WARRANTIES; LIMITATION OF LIABILITY

NONE OF MERCIV, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “MERCIV PARTIES”) ENDORSE ANY CONTENT PROVIDED THROUGH THE WEBSITES OR THE PLATFORM.

THE WEBSITES, THE PLATFORM AND THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NONE OF THE MERCIV PARTIES MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND THE MERCIV PARTIES HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE OR THAT ANY CONTENT OR INFORMATION YOU OBTAIN ON OR THROUGH OUR PLATFORM WILL BE ACCURATE, COMPLETE, CURRENT OR PLATFORMROPRIATE FOR YOUR PURPOSES. TO THE EXTENT THAT ANY MERCIV PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

EXCEPT AS SET FORTH IN THE CUSTOMER AGREEMENT, IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITES AND/OR THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITES AND/OR THE PLATFORM, SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).

THE WEBSITES AND THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR OTHER ERRORS LISTED ON OR OMITTED FROM THE WEBSITES AND THE PLATFORM. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITES AND THE PLATFORM AT ANY TIME WITHOUT NOTICE.

EXTERNAL SITES

The Websites and the Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

INDEMNIFICATION

You agree to defend, indemnify, and hold harmless the Merciv Parties from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Merciv Party in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your breach of this Agreement; (ii) any misuse of the Content, the Websites, or the Platform; or (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.

COMPLIANCE WITH PLATFORMLICABLE LAWS

The Websites and the Platform is based in the United States. We make no claims concerning whether the Platform, the Content, or the Websites may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform, the Content, or the Websites from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Websites and/or the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Websites and/or the Platform at any time without prior notice or liability.

BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the Websites, the Platform or any other products or services provided by us (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND PLATFORMEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Merciv from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Merciv’ proprietary interests.

CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.

CONTROLLING LAW; EXCLUSIVE FORUM

The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions. Except for Disputes that are subject to binding arbitration under Section 14, the Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.

MISCELLANEOUS

If the Agreement is terminated in accordance with the termination provision in Section 13 above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “User-Generated Content; Licenses,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Representations and Warranties; Indemnification,” “Compliance with Applicable Laws,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.