These Terms of Services and policies available at https://mercating.com/legal, (collectively, the "Terms") constitutes a legally binding agreement by and between Mercating LLC., ("we," "us," "our," or "Mercating") an entity incorporated under the laws of the State of California, and you (The "User", "Client", "You", or "Your") whether personally or on behalf of an entity, concerning the use of our marketing solutions (the "Services") or access to our website: https://mercating.com (the "Website") and any other media form, channel, mobile website or mobile application related, linked or otherwise connected to it.
For your convenience, these Terms are provided in a layered format. Click through below to jump to a specific section.
By accessing the Website or using the Services, you agree to be bound by the following Terms set forth herein. If you disagree, you may not access the Website or use the Services in any way. We reserve the right to change these Terms at any time with no liability to you.
You can review the most current version of the Terms at any time on this document or at https://mercating.com/terms. If a revision is "material," we will try to provide you at least thirty (30) days' notice before any new terms take effect. We will determine at our sole discretion what constitutes a material change.
All modifications will become effective immediately after we publish them. You are responsible for periodically checking these Terms for changes and becoming familiar with all amendments.
You acknowledge that accessing the Website and using the Services after any changes constitutes acceptance of those changes. If these Terms are considered an offer, acceptance is expressly limited to these Terms. To understand all definitions of these Terms, visit https://mercating.com/terms
The following definitions apply to these Terms:
- Services mean the products or services Mercating provides under these Terms, or otherwise further defined in a project proposal.
- Physical products mean any Products that can be physically touched and shipped by postal or courier service to you.
- Digital Products mean any Products that are stored, provided, or delivered, and used electronically.
- Delivery costs mean the shipping fees charged by the service to deliver the physical Products.
- Delivery date means the estimated date of delivery of an order under clause delivery.
- Deliverables mean the Products specified in the order confirmation or project proposal to be delivered to you.
- Final deliverables mean the last versions of Products you approved and delivered to you.
- Content means all materials, writing, copywriting, links, images, or other creative content you submit to Mercating.
- Order means the order confirmation or contract.
- Purchase order, also written as PO, means the order confirmation you prepare and submit to Mercating to authorize the production of the Products.
- Price means the price, together with postage and packing in force at the date and time of the order, subject to any tax, promotional offer, or discount then applicable.
- Business day means a day (other than a Saturday, Sunday, or public holiday) when banks are open for business.
- Work tools mean all the tools acquired, developed, and/or used by Mercating in performing the services, including third-parties or pre-existing and newly developed software such as source code, web authoring tools, type fonts, and application tools, together with any other software or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
- Writing means email or messaging bearing the names of the sender and the recipient and writing on the screen of a visual display unit or other similar devices.
We can limit, suspend, refuse, or terminate the Service at any time and for any reason without notice or liability to you. You understand that your Content (not including credit card information) may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to the technical requirements of connecting networks or devices.
You agree not to reproduce, duplicate, copy, sell, resell, transfer, or exploit any portion of the Website, use the Services, or access the Services or any contact on the Website through which the Services are provided, without express wrote permission by Mercating.
The samples, drawings, descriptions, illustrations, advertising, and other marketing materials contained on the Website are for the sole purpose of giving an approximate idea of the Services described in them, and they will not form part of the contract or have any contractual force.
Headings and numbering used in these Terms are for convenience and reference only. They will not affect these Terms' scope, meaning, intent, or interpretation and will not have any legal effect.
The original English version of these Terms and Website's information may have been translated into other languages. The translated versions are a courtesy and office translation only, and the participants cannot derive any rights from the translated version. In a dispute about the contents or interpretation of these Terms or the event of a conflict, ambiguity, inconsistency, or discrepancy between the English version and any other language version of this agreement, the English language version will apply, prevail, and be conclusive, binding, and used in legal proceedings.
All images on the Website, including products, services, and blog posts, are for illustrative purposes only.
User comments, feedback, and other submissions
We retain the right to edit, copy, publish, distribute, translate, and otherwise use in any medium, at any time and without restriction, all submissions such as contest entries, blog posts, articles, creative ideas, suggestions, proposals, plans, or other materials (collectively, "Comments") you publish on the Website or share with us.
We will be under no obligation to 1) maintain any comments in confidence, 2) pay compensation for any Comments, blog posts, or articles, 3) respond to any Comments. Mercating may, but has no obligation to monitor, edit or remove Content that violates any party's intellectual property or does not comply with these Terms.
You agree that your Comments will not violate the rights of any third-party, including copyright, trademark, privacy, personality, or other personal or proprietary rights, and will not contain libelous or otherwise unlawful, abusive, offensive, threatening, defamatory, pornographic, obscene material, or any computer virus or other malware that could in any way affect our Website, other users, or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead Mercating or third-parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments you or any third parties post on the Website.
Electronic communications, transactions, and signatures
We do most communications electronically. You agree to assign a primary contact when you order the Services and maintain Mercating updated with their relevant email addresses. If you do not assign anyone within thirty (30) days, we will consider you the primary contact to exchange any communications on the order or project.
You consent to receive electronic communications from Mercating and agree that all agreements, notices, disclosures, and other communications exchanged via email, or the Website satisfy any legal requirement that such communication is in writing.
You hereby agree to the use of electronic signatures, contracts, orders, and other records and electronic delivery of notices, policies, and records of transactions initiated or completed by Mercating or through the Website.
You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction that require an original signature or delivery or retention of non-electronic records or payments or the granting of credits by any means other than electronic.
Customer content and prohibited uses
You agree to abide by all rules and regulations on online decency and appropriate and acceptable Content. You are solely responsible for all the information, including but not limited to blog posts, articles, links, text, graphics, images, data, and messages (collectively "Content") you submit to Mercating, acquire, or use from the Services. Mercating prohibits you from using the Website or its Content:
- for any unlawful purpose;
- to solicit others to perform or participate in any illegal acts;
- to violate any international, federal, provincial, or state regulations, rules, laws, or local ordinances;
- to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
- to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
- to submit false or misleading information;
- to share links for self-promotion;
- to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of Mercating, the Website, related websites, or the internet;
- to collect or track the personal information of others;
- to spam, phish, pharm, pretext, spider, crawl, or scrape;
- to interfere with or circumvent Mercating online security features or its third-parties related sites;
- to upload, post, or send any content containing adult or child pornography, or anything indecent, lewd, or obscene;
- to submit any material that threatens to kidnap or injure, or threatens to damage the reputation of anyone or harm their personal property, threatens to accuse anyone of a crime, threatens to announce that a person has violated a law/s of Mexico, USA, or any countries, or threatens blackmail, encourages or suggests forcible resistance to any law of Mexico and United States of America, insurrection, or treason; includes fraudulent, libelous or hurtful remarks directed at any other person or business.
Mercating provides products only for your personal use, and you agree to refrain from using the products, as well as messages or correspondences for any unauthorized purposes, including but not limited to promotional materials, advertising, spam, or any other form of solicitation.
Mercating will remove or refuse any Content that violates these Terms or may otherwise be considered unlawful or objectionable. In addition, you agree that the Content obtained by Mercating may be maintained and disclosed if Mercating is required to do so by law, or if Mercating believes, in good faith, that it is necessary to disclose such Content to comply with any legal proceeding or processes; uphold or enforce the terms of our services; respond to any claims that the Content is or may be in violation of the rights of another party; that the Content may be objectionable or offensive; or that the Content is necessary to protect the rights or property of the public or Mercating in any way.
Submission of content, artwork, or graphics
You acknowledge that Mercating does not include any Content in the Services. You agree to provide your Content within fifteen (15) calendar days after you ordered the Products and, in a form, suitable for use in the deliverables without further preparation by Mercating unless otherwise specified in the invoice. If you do not have any available Content, you acknowledge that you can acquire it from Mercating at an additional cost. If you do not opt to purchase any content service from Mercating® to complete your deliverable, you agree to provide us electronically with:
- the text in Microsoft word or email with the headings or pages representing the Content of the Products to be produced;
- high-resolution photographs or graphics in .gif, .jpeg, .png, or .tiff format ready for production (royalty-free stock photography purchased on your behalf is billable at a minimum of $29.99 per picture);
- images, designs, and artwork with a minimum of 300 DPI and CMYK color mode or format;artwork containing print bleeds (files without print bleeds will not be accepted and, in turn, delay your order);
- files with fonts converted to curves, and no missing images;
- any other additional file that we may require along the process.
You agree to provide us with Content ready for production; otherwise, Mercating reserves the right to charge you for correcting any errors after receiving any deliverables. You acknowledge that you are responsible for uploading properly prepared print files to avoid delaying your order. If you do not provide Mercating with Content to complete the deliverable within six (6) weeks of placing your order or signing the agreement, the contract's entire amount becomes due and payable, and if you have not submitted such Content two (2) weeks after that, you accept to pay Mercating an additional continuation fee of 10% of the total price each month until we finish the order.
Mercating reserves the right to store safely and separately your Content and the final deliverables from other clients'. Mercating may, at the sole discretion, share exclusively with you a link to access those files for filing, reviewing, or updating purposes. You will be responsible for sharing this link or access to other members of your organization without our consent or approval. It is strictly prohibited to share your access with third parties for your and our clients' safety. If you believe you mistakenly shared it with another contact, please inform Mercating as soon as possible. Mercating® reserves the right to revoke all access to non-authorized users immediately.
Price and payment terms
In exchange for the Services stated in the invoice, you accept to pay Mercating the prices, service fees, delivery fees, recurring services fees, and, where applicable, cancellation and penalty fees under these terms. Unless agreed otherwise, you accept to pay Mercating in advance via credit card, debit card, bank deposit, or wire transfer at the time of placing the order. You hereby authorize Mercating to immediately collect such payments to complete the transaction for each order. You acknowledge and agree that the payment information may be stored and processed by third-party PCI-DSS compliant service providers and that your order will be processed once Mercating confirms your payment. Upon eligibility, you may use purchase orders for transactions over $10,000. Purchase orders or payments in full will be taken at this time, and the contract will be in force. You undertake that all order details you provide to Mercating will be correct, and the funds or credit facilities will be enough and available to cover the total cost of the Products ordered. Mercating reserves the right to validate your credit card, debit card, or PayPal details before accepting your order.
Price, taxes, and currency conversion fees
Mercating fixes all prices in US Dollars excluding VAT (value-added tax), Sales Tax, GST (goods and services tax), and currency conversion fees. When applicable, you agree to pay Mercating such taxes, fees, and other duties associated with the Services, and those applicable with third-party payment services and in the territory to which the Services are paid and shipped. In some states in the US and countries, Mercating may collect the applicable taxes from you as the seller and pay this to the relevant tax authority (if and as applicable). You acknowledge that we do not control the conversion rates or your financial institution's fees and do not guarantee that the currency conversions in the Website (if any) will be accurate, equal, or proximate to financial institution fees.
NET 30 DAYS
If approved in writing and subject to your satisfactory credit check, we will issue you an invoice considering NET 30 DAYS. To avoid any late fees, you agree to make your payment through our online payment platforms or to the bank account we nominate within thirty (30) days from the date of the invoice. Late fees may apply from the moment the invoice is past due.
Late payment fees
Unless agreed otherwise, Mercating expects your full payment upon providing the Services or receipt of goods.
IF YOU FAIL TO MAKE PAYMENT OF AN INVOICE WITHIN THE NEXT SEVEN (7) CALENDAR DAYS OF THE PAST DUE INVOICE DATE, WE RESERVE THE RIGHT TO:
- WITHHOLD DELIVERY AND TRANSFER OF OWNERSHIP OF ANY CURRENT WORK, RESTRICT ANY ACCESS, INTERRUPT, DOWNGRADE, DEACTIVATE, OR EVEN CANCEL YOUR SERVICE IF YOUR BALANCE OR ACCOUNTS ARE NOT CURRENT OR OVERDUE INVOICES ARE NOT PAID IN FULL, AND,
- IMPOSE LATE CHARGES AT 0.8333% INTEREST (OR ANY OTHER INTEREST RATE SPECIFIED IN INVOICE) PER MONTH (10% PER YEAR) ON YOUR UNPAID BALANCE (YOUR UNPAID BALANCE IS DETERMINED BY TAKING THE BEGINNING BALANCE OF YOUR ACCOUNT FOR EACH MONTH, ADDING ANY NEW CHARGES AND SUBTRACTING ANY PAYMENTS MADE TO YOUR ACCOUNT. WE WILL THEN MULTIPLY THE AMOUNT BY THE .8333% MONTHLY PERIODIC INTEREST RATE TO COMPUTE THE LATE CHARGE FOR YOUR ACCOUNT FOR THAT MONTH.)
BY PURCHASING ANY OF OUR SERVICES:
- YOU AGREE TO PAY ANY INTEREST ON THE OVERDUE AMOUNT WITHOUT LIMITING THE REMEDIES OF MERCATING;
- YOU UNDERSTAND THAT SUCH INTEREST WILL ACCRUE MONTHLY FROM THE DUE DATE UNTIL ACTUAL PAYMENT OF THE OVERDUE AMOUNT, WHETHER BEFORE OR AFTER JUDGMENT;
- YOU WILL PAY MERCATING THE INTEREST TOGETHER WITH THE OVERDUE AMOUNT;
- YOU BECOME SOLELY RESPONSIBLE FOR MAKING YOUR PAYMENTS ON TIME, AND FOR ANY SERVICE INTERRUPTION, DEACTIVATION, CANCELLATION, EXPIRATION OR LOSS OF DOMAIN, OR TERMINATION OF THE SERVICE OR AGREEMENT DERIVED FROM LATE OR NON-PAYMENT TO MERCATING.
WE WILL SUSPEND ACCOUNTS OVERDUE FOR 60 CALENDAR DAYS FOR NON-PAYMENT. SUSPENDED ACCOUNTS WILL NEED TO PAY THE FULL BALANCE FOR REACTIVATION. WE DO NOT GUARANTEE ANY BACKUPS ON DISABLED OR SUSPENDED ACCOUNTS FOR ANY LENGTH OF TIME.
Recurring services and payments
Mercating offers Recurring Services, which are subject to Recurring Payments based on your selected plan type. We charge our Recurring Services month-to-month, every six (6) months, every twelve (12) months, or every two (2) years.
Your invoice will set forth which Recurring Service or Commitment you have selected. Recurring Services are active from the moment of the purchase, have validation for the total calendar days of the billing period until you cancel.
For renewals, we will automatically charge your payment method in the amount of the then-current fee for your type of account, plus applicable taxes, and fees.
If Mercating uses third-party payment providers, you agree that we will have no liability to you arising out of the acts or omissions of such third parties.
If applicable, you agree to maintain current billing information.
BY CREATING A PAID ACCOUNT, YOU CONSENT TO ALLOW MERCATING TO STORE AND CHARGE YOUR PAYMENT METHODS(S) UPFRONT, EITHER DIRECTLY OR THROUGH ITS PAYMENT PROCESSORS, FOR THE AMOUNTS DUE FOR YOUR INITIAL RECURRING PERIOD AND ADDITIONAL RECURRING PERIODS UNTIL YOUR ACCOUNT IS CANCELED OR TERMINATED. RECURRING PAYMENTS ARE STILL DUE EVEN IF YOU DO NOT USE YOUR RECURRING SERVICES.
You can upgrade or downgrade your Recurring Service by contacting us. You will receive the new features and benefits immediately and see a prorated charge on your monthly bill when you upgrade. You will lose the current features and benefits when you downgrade. The downgrade will take effect at the beginning of the next billing cycle.
If you choose to opt-out of Recurring Payments, you accept to manually make your monthly Recurring Service payment every twenty-fifth (25) of each month. If you signed up for every six (6) months Recurring Service or superior, you agree to pay within thirty (30) days before it expires. Manual payment of Recurring Services is due upon receipt.
We reserve the right to notify you in advance that your Recurring Service is due to expire so you can manually renew it. You acknowledge that opting out of automated billing may incur service interruptions or late fees if your invoice is past due.
We may change the Recurring Services' rates for each annual renewal term and will notify you of any with the option to cancel. If the applicable taxes changes during your subscription term, we will accordingly adjust the tax-inclusive price for your plan mid-term on your next billing date.
Cancellations and refunds
You may cancel or postpone any services by providing us with 30 days' written notice.
BY CANCELING OR POSTPONING ANY SERVICES, YOU ACKNOWLEDGE THAT MERCATING WILL RETAIN ALL MONIES PAID. WHEN APPLICABLE, YOU WILL BE OBLIGATED TO PAY MERCATING® THE REMAINING BALANCE AT THE TIME OF CANCELLATION, WHICH MAY INCLUDE A CANCELLATION FEE AND ANY ADDITIONAL FEES ASSOCIATED WITH LATE PAYMENT FEES OR WITH THE WORK COMPLETED BEYOND WHAT WAS ALREADY PAID. THIS AUTHORIZATION WILL REMAIN ACTIVE UNTIL THE SERVICE IS CANCELED.
Mercating accepts to process all cancellations and refunds only under our Cancellation Policy and the principles provided by law. By accepting these terms, you also acknowledge and accept our Cancellation Policy.
Evaluation, revisions, and acceptance
You can request Mercating to revise or perform enhancements to the deliverables under these Terms.
Mercating will review, test, and correct the deliverables using commercially reasonable efforts before providing them to you.
You accept to notify Mercating in writing of any failure to comply with the specifications agreed in the product description or project proposal or of any other objections, corrections, or changes required within five (5) business days after receiving each deliverable for approval.
Mercating will provide you up to 2 rounds of revisions if your order involves any custom work, design, or development that requires your approval before its delivery. You acknowledge that 1) A "round" consists of receiving your feedback and creating a revised version of that deliverable, and 2) the revision rounds are for modifications only and do not include creating an entirely new concept or design.
We reserve the right to additionally charge you at a standard hourly rate for changes or enhancements that:
- surpass the two (2) rounds of revisions;
- require over one labor-hour to complete them and;
- need additional setup of new third-party services, or
- you previously approved.
We will notify you of any additional charges before any work.
Mercating will, within five (5) business days of receiving your notification, correct and submit a revised deliverable to you. After that, you accept, within three (3) business days of receiving a revised deliverable from us, either approve the corrected version or make further changes. You acknowledge and agree that if you fail to provide your approval or feedback during any production or development phase, Mercating will consider those deliverables approved and accepted.
All objections, corrections, and changes will be subject to the Terms of this clause.
You agree to identify any errors or fixes for a newly built website within thirty (30) days from going live, corresponding to our 30-DAY Warranty Period. You acknowledge that if you identify errors after this period and did not sign up for any support services, Mercating reserves the right to charge those fixes at the standard hourly rate.
All additional work, over and above the original order or proposal cost, is charged separately.
Changes to an order
You can request changes or add new items to your order even after being confirmed and paid. However, you acknowledge that such changes or additions may be subject to additional charges.
If the scope change is not available for immediate purchase on the Website, you agree to send us a written change order describing the changes in detail. Mercating will respond with a statement, estimate, or quote, proposing additional fees, changes to delivery dates, and any modification to these Terms within five (5) days of receiving your change request.
If the change request is at 50% or close of the time required to produce the deliverables or the value of your order's scope, Mercating will be entitled to submit a new and separate proposal to you for written approval.
You acknowledge that Mercating will not begin the work on the revised services until you send us your written authorization and the payment for any additional fees according to the payment clause.
If your change request is not significant, we will charge it on a time and materials basis at our current standard hourly rate. Such charges will be in addition to all other amounts payable under these Terms, despite any maximum budget, contract, or final price identified.
Mercating reserves the right to extend or modify any delivery schedule or deadlines in the present Terms as such changes require.
You agree to respond in writing, accepting, or rejecting the new proposal within three (3) business days of receipt. If you reject the proposal, Mercating will not be obligated to perform any services beyond those written in the original order.
Mercating cannot provide future proof of its products. When you sign up for our Support services, Mercating will either complement, preserve, secure, update or correct any errors or deficiencies of deliverables based on each contracted Services.
You agree that once you have signed off on a project, you will be responsible for maintaining, securing, troubleshooting, or updating the final deliverables if you do not sign up for any Support Services.
You acknowledge that Mercating charges all Support Services separately.
Promotion and accreditation
Mercating retains the right to reproduce, publish, share, or display the final deliverables on the Website, portfolio, social media accounts, and other digital media or exhibits for recognition of creative excellence or professional advancement, and to be credited with authorship of the final deliverables in connection with such uses unless otherwise agreed upon.
You have the right to issue an NDA to Mercating, which in turn would void the right of Mercating to share or discuss your work publicly. We will not display or promote any final deliverables, printed or designed work, with legitimate ™ or ® on it unless you give us your written consent. Mercating will never use your material to sell or redistribute in any way except for self-promotion.
You have the right to request us via email to remove, not display or promote any material you ordered from Mercating. If you order a website, Mercating will be entitled to place the accreditation "Site by Mercating" or the Mercating logo linked to our site on each page footer and mobile menu footer of the final deliverables. You agree to purchase full license rights if you need to remove all Mercating references from your site.
Unless otherwise noted on the Website, Mercating owns the copyright concerning all data from the Website. The data includes text, graphics, logos, audio clips, trademarks, software server information, and anything else hosted on this Website. All rights to Data, Services, and server information are reserved.
Any modification made to this Website's Data by a third party is a violation of our copyright. Additionally, the Website may contain other proprietary notices and copyright information, the Terms of which must be observed and followed.
Copyright laws also pertain to the Content you submit to Mercating. It is strictly prohibited to use unlicensed or misused material from books, magazines, newspapers, photographs, web content, writers, artists, composers, publishers, and other authors. Mercating will not assume the responsibility of checking the Content you submit for copyright violations. Therefore, we will not be held accountable for any illegal use of copyrighted material you submit or provide to Mercating®.
Nothing contained on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Website or any information displayed on the Website, through the use of framing or otherwise, except (a) as expressly permitted by these Terms; or (b) with the prior written permission of Mercating, or the prior written permission from such third party that may own the trademark or copyright of information displayed on the Website.
The Website, its trademark, and associated logos may not, in part or whole, be copied, imitated, reproduced, modified, transmitted, translated, distributed, adapted, or disassembled in any fashion without expressed written permission of Mercating®.
The Mercating logo and name indicated on the Website are registered trademarks in Mexico with the reg. Number 1439361. The Mercating logo, name, and the slogan - Scale Further - together with other marks are the subjects of applications for trademarks or registered trademarks of Mercating in the European Union or other jurisdictions, including the USA.
Mercating and its licensors maintain all the rights in and to the graphics, logos, page headers, button icons, scripts, and service names are the trademarks or trade dress of the Website. Mercating trademarks and trade dress may not be used in connection with any products or services that are not ours, in any manner that is likely to confuse customers, or in any way that disparages or discredits Mercating.
All other trademarks not owned by Mercating that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Mercating.
You agree that as an express condition of holding an account with Mercating, you will not use our Services to infringe the intellectual property rights of any images, fonts, texts, blog posts, articles, and the like you upload to the Website.
You will be solely and entirely responsible for any claims or other losses arising out of Mercating® actual or alleged infringement of any such rights. In addition (and without limitation), Mercating® reserves the right, with or without notice, to terminate forthwith the account of anyone who infringes (or who is alleged to have infringed) the copyrights or other intellectual property rights of any third party and to remove all such infringing (or allegedly infringing) material from the Website.
Copyright complaints by third-parties
Mercating respects the intellectual property of others. If you are a third party and believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed, and the place where the material that you claim is infringing is located on the mercating.com website;
- your address, telephone number, and email address;
- a statement that your claim of infringement is based on a good-faith belief and;
- a statement made under penalty of perjury that the information you have provided is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Third-parties and relationships of the parties
You acknowledge and agree that:
- These Terms do not create an exclusive relationship between you and Mercating;
- The Parties have no intention of creating any agency, partnership, joint venture, or employee-employer relationship by these Terms;
- Neither party is authorized to act as an agent or bind the other party except as expressly stated in these Terms;
- We are an independent contractor and will determine, in our sole discretion, the manner and means we offer you the Services;
- We will be entitled to offer and deliver the Services to others, solicit other clients, and otherwise advertise our Services.
The Services will not be deemed a work for hire as defined under copyright law. All rights granted to you are contractual and are expressly limited by these Terms.
Mercating may work with third-party providers and remain responsible for contractor compliance with these Terms. Changes to the third-party provider rules and policies may ultimately affect the Services we provide or the Terms herein.
Mercating will make every effort of maintaining the Services, deliverables, and final deliverables, from any delays, interruptions, non-performance, or cancellation of the provision by third parties of any such services.
Mercating generally builds and tests the Services on third-party servers or hosted domains. You acknowledge and accept that Mercating cannot give you, or any third parties access to these test servers and test websites.
Upon request, Mercating can transfer off your site to a nominated third-party server if you purchase a "web transfer" service, which will provide you with the necessary information so the third party can operate and complete your website transfer.
Mercating cannot accept responsibility for any alterations caused by a third party occurring to your website once installed. Such alterations include but are not limited to additions, modifications, or deletions.
If you or third parties modify the final deliverables or use them outside of the scope or purpose of these Terms, all representations and warranties of Mercating will be void.
Rights to the final art
Mercating will grant you a non-exclusive, perpetual, and worldwide license to use and display the final deliverables under these Terms. The rights granted to you are for the use of the final deliverables in their original form only. You may not change, create derivative works, or extract portions of the final deliverables without our consent. Additional use of any final deliverables outside the scope of the license granted above requires additional fees. Mercating will be entitled to further compensation equal to 50% percent of the total original order, work, or project fee unless otherwise agreed in writing by both parties.
In the event of non-payment, Mercating will be entitled to pursue all remedies under law and equity. Under these Terms, all grants of any license to use or transfer ownership of any intellectual property rights are conditioned on full payment, including all outstanding additional costs, expenses, fees, taxes, or other charges.
Rights to deliverables other than final art
You agree to obtain the corresponding licenses of third-party materials you submit to Mercating®. You are further responsible for granting Mercating permission and rights to use such Content and agree to indemnify and hold Mercating from all claims resulting from your negligence or inability to obtain proper copyright permissions.
Any content you send, share, or submit to Mercating for the purpose stated in the order, invoice, or contract, will be regarded as your guarantee that such permissions and authorizations have been obtained. Mercating reserves the right to request your evidence of those permissions or authorizations.
You acknowledge and accept that if you send, share, or submit any Content to Mercating, you grant us a nonexclusive, non-transferable license to use, reproduce, modify, display, and publish your Content solely in connection with the Services performance and limited promotional uses of the final deliverables as authorized in the present Terms.
Mercating retains all rights in and to all preliminary works. You agree to return all preliminary work to Mercating within thirty (30) days of completing the Services.
All Mercating tools are and will remain the exclusive property of Mercating. Mercating grants you a nonexclusive, non-transferable, perpetual, worldwide license to use the Mercating tools solely to the extent necessary for the project's final deliverables.
Disclaimer of warranties; limitation of liability
he Website and the Services are provided on an as-is, as-available basis.
You hereby agree that its use of them is at your own sole risk, and you will not rely upon or use our Data or tools (including third-party tools provided or suggested by Mercating) as the sole basis for making decisions without consulting primary, more accurate, more complete, or more timely sources of information.
At the sole discretion, we reserve the right to modify or discontinue parts of the Service without notice at any time without being liable to you or any third-party for any modification, price change, suspension, or discontinuance of the Services.
We disclaim all warranties, express or implied, in connection with the Website and Client's use thereof, including the implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
We assume no liability for any errors, mistakes, or inaccuracies of Content and materials, personal injury or property damage, of any nature whatsoever, any unauthorized access to or use of Mercating's secure servers, personal information, or financial information stored therein.
We do neither guarantee, represent, or warrant that your deliverable or use of the Services, or any third-party tools and links suggested, provided, or included in the Website will be uninterrupted, timely, secure, error-free, or protected from hackers, viruses, intruders, and other online and offline issues, or issues with hardware, software, policies, practices, or other items leading to loss of data, sales, reputation, or any other damage.
IN NO EVENT WILL MERCATING®, NOR ITS DIRECTORS, EMPLOYEES, OFFICERS, PARTNERS, AFFILIATES, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM:
- YOUR USE OF ANY OF THE SERVICE OR ANY PRODUCTS PROCURED USING THE SERVICE OR INABILITY TO ACCESS OR USE THE SERVICE;
- THIRD PARTIES' CONDUCT OR CONTENT ON THE SERVICE;
- ANY CONTENT OBTAINED FROM THE SERVICE;
- UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE;
- ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE, A HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY ADVERTISING;
- ANY MATERIAL, BLOG POST, OR ARTICLE YOU SUBMITTED AND PUBLISHED AT MERCATING® BLOG AND;
- ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE OR ANY PRODUCT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, SERVICE INTERRUPTIONS, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF WE CANNOT ADVISE OF THEIR POSSIBILITY.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE CHARGES PAID FOR THE SERVICES UNDER THIS AGREEMENT IN RESPECT OF WHICH THE BREACH HAS ARISEN.
You agree to indemnify, defend and hold harmless Mercating, and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of these Terms or the documents they incorporate by reference or your violation of any law or the rights of a third-party. Mercating will promptly notify you in writing of any third-party claim or suit. You agree to fully control the defense and any settlement of such a claim or suit.
You and Mercating (the "Parties") agree to designate as "Confidential Information" all material that each party considered as confidential.
The parties agree not to disclose the Confidential Information to third parties and only use it as needed to perform these Terms.
Both Parties acknowledge that the Confidential Information will not include any information that the recipient already knows, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
The Parties undertake that they will not, at any time during these Terms, disclose to any person any Confidential Information concerning the business, affairs, customers, clients, or suppliers of the other party, including but not limited to information relating to a party's employees, operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers ("confidential information"), except as permitted by the following terms and conditions. The Parties may disclose the other party's confidential information: to its employees, officers, agents, consultants, or subcontractors ("representatives") who need to know such information to carry out the party's obligations under these conditions, provided that the disclosing party takes all reasonable steps to ensure that its representatives comply with the confidentiality obligations contained in this clause as though they were a party to these conditions.
The disclosing party will be responsible for its representatives' compliance with the confidentiality obligations set out in this clause; and as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
Each party reserves all rights in its Confidential Information. No rights or obligations regarding a party's confidential information other than those expressly stated in these Terms are granted to the other party or to be implied from these Terms.
No license is hereby granted directly or indirectly under any patent, invention, discovery, copyright, or other intellectual property right held, made, obtained, or licensable by either party now or in the future.
On expiration or termination of this agreement, the Parties agree to return or destroy the other party's confidential information at the disclosing party's request. All rights and obligations regarding Confidential Information will survive.
These Terms are effective unless and until terminated by either you or Mercating. We may terminate your use of the Service for violating these terms. You may terminate these Terms at any time by notifying us that you no longer wish to use our services or when you cease using our site.
Upon termination, your right to use the Services will immediately cease. If you want to terminate your account, you may discontinue contracting our Service. We may terminate or suspend your account immediately, without prior notice or liability, for any reason whatsoever, including without limitation, if you breach these Terms.
You will remain liable for all amounts due up to and including the date of termination, and, accordingly, we may deny you access to our Services (or any part thereof). If you terminate on full payment of compensation, we will grant you the rights and title provided by these Terms concerning those final deliverables provided to you as of the date of termination.
The obligations and liabilities of the Parties incurred before the termination date will survive the termination of this agreement for all purposes.
Neither party will be liable for any failure or delay in performing its obligations under the contract to the extent that a force majeure event causes such failure or delay. A force majeure event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs, or other industrial disputes (whether involving its workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, the collapse of building structures, fires, floods, storms, earthquakes, lost at sea, pandemic, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
If one or more provisions of these Terms are invalid, illegal, or unenforceable, the remaining provisions of this agreement will be unimpaired, and these Terms will not be void for this reason alone.
The Parties agree to negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right or remedy under the contract or law is only effective if given in writing and will not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the contract or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will prevent or restrict the further exercise of that or any other right or remedy.
Dispute and governing law
The Parties agree to attempt to resolve any dispute by negotiation. If the Parties are unable to resolve the dispute by negotiation, the contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by and construed under the law of the State of California.
These Terms and any separate agreements whereby we provide you services will be governed by and construed under the laws of the State of California, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. The prevailing party will be entitled to recover its attorneys' fees and costs in any dispute resolved by binding arbitration or litigation.
These Terms, policies, guidelines, and operating rules published by Mercating on the Website or in the present document concerning the Services constitute the entire agreement and understanding between the Parties and govern your use of the Service, superseding any prior or contemporaneous contracts, representations, understandings, communications, proposals, or agreements, whether oral or written, between you and Mercating (including, but not limited to, any prior versions of these Terms).
Any ambiguities in the interpretation of these Terms will not be construed against the drafting party. You acknowledge that you have not relied on any statement, promise, representation, assurance, or warranty (except for limited warranty of Products) made or given by or on behalf of Mercating, which is not set out in the order confirmation or the present Terms. Your payment of the Services constitutes agreement to and acceptance of these Terms.
Please send an email to customer support or your primary contact from Mercating if you have any questions, comments, or concerns regarding our Terms and policies or experienced technical problems while using the Website.