Welcome and thank you for your interest in Merit Systems, Inc. (“Merit”, “we” or “us”). This Terms of Use Agreement (“Terms of Use”), together with any applicable Supplemental Terms (as defined in Section 1.5) (collectively, with the Terms of Use, the “Agreement”) describes the terms and conditions that apply to your use of this website and any related websites, interfaces or subdomains that link to these Terms of Use and are operated by Merit (collectively, the “Website”) and the services enabled thereby or in connection therewith (such services, individually and collectively, and including the Website, the “Services”), and applies to all users visiting the Website or using any Services (“Users”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES IN ANY WAY, INCLUDING BY CLICKING ON ANY “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MERIT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE THIS AGREEMENT, AND IN WHICH CASE, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.
The Services include an interface that allows Users to interact with the Merit Smart Contract, a non-custodial escrow contract that programmatically allocates funds as further described herein (the “Smart Contract”). The Smart Contract comprises decentralized, open-source software, is not part of the Website and is not part of the Services made available by Merit under this Agreement. Merit has no obligation to monitor or control any use of the Smart Contract by you or any third party. Merit makes no representations or warranties about the functionality of the Smart Contract. All interactions or transactions on or through the Smart Contract are undertaken at your own risk, and Merit is not and shall not be liable to you or to any third party for any loss or damage arising from or connected to your or any third party’s use of the Smart Contract. Notwithstanding anything to the contrary set forth herein, the disclaimers and Merit’s limitation of liability set forth in this Agreement apply, mutatis mutandis, to any claims arising out of your interaction with or inability to interact with the Smart Contract. THE SMART CONTRACT IS MADE AVAILABLE “AS IS” AND “WITH ALL FAULTS” AND YOU ACCESS, INTERACT WITH, AND/OR DEPLOY ASSETS TO THE SMART CONTRACT AT YOUR OWN RISK.
PLEASE BE AWARE THAT SECTION 1.8 (COMMUNICATIONS WITH MERIT) OF THIS AGREEMENT, BELOW, CONTAINS YOUR CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL AND PUSH NOTIFICATION.
SECTION 18 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND MERIT. AMONG OTHER THINGS, SECTION 18 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND MERIT SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 18 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 18 CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 18: (1) YOU WILL NOT BE PERMITTED TO PURSUE DISPUTES OR CLAIMS, OR SEEK RELIEF AGAINST US, AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
You should print a copy of these terms or save them to your computer for future reference.
PLEASE NOTE THAT this agreement is subject to change by merit in its sole discretion at any time. When changes are made, Merit will make a new copy of the Terms of Use and/or Supplemental Terms, as applicable, available on the Website. We will also provide notice to you of such changes, such as by updating the “Last Updated” date at the top of this Agreement and/or sending an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for new Users of the Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 (Registering Your Account) below). Merit may require you to provide consent to the updated Agreement in a specified manner before further use of the Services. If you do not agree to any change(s) after receiving a notice of such change(s), you must stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
The Services and the information and content available on the Services are protected by copyright laws throughout the world. Unless otherwise specified by Merit in a separate license, your right to access and use any and all of the Services is subject to this Agreement.
The Services provide a unique platform designed to collect and rank pull requests (“Pull Requests”) that certain developers (“Contributors”) have made to third-party code repositories (“Repositories”). The Services enable certain Users (“Sponsors”) to incentivize or reward Contributors by allocating payments (“Contributor Rewards”) to Contributors via the Smart Contract. Such allocations are based in part on an evaluation and ranking of such Contributors’ Pull Requests to the applicable Repositories. Sponsors may use the Smart Contract to distribute Contributor Rewards among such Contributors in accordance with Pull Requests and other metrics to be determined by such Sponsors (“Ranking Functions”), the features and functionality of the Smart Contract, subject to the terms of this Agreement.
Each Sponsor shall have an Account (as defined below), and each Account may have multiple authorized administrative users (“Admin Users”), each of which such Admin Users shall have its own Account. Sponsors can designate one or more Admin Users (as defined below), to manage such Sponsor’s access to and use of the Services. Admin Users may have certain administrative capacities, as designated by each Sponsor through the Services, including, without limitation, the ability to use Ranking Functions, allocate Contributor Rewards, and use such Sponsor’s digital wallet or other payment method to interact with the Smart Contract. Each Sponsor acknowledges and agrees that it is directly and solely responsible for the actions and omissions of its Admin Users, whether or not such actions or omissions have been directed or authorized by such Sponsor.
The Ranking Functions construct attribution information for Pull Requests and enable Sponsors to evaluate the importance of each Pull Request to the applicable Repository, and rank Contributors based on the rankings of their respective Pull Requests. Ranking Functions are algorithmically based but rely on input from Sponsors and their Admin Users, who are solely responsible for ensuring such input is accurate and complete. Merit has no control over any Sponsor’s use of the Ranking Functions, and all Registered Users acknowledge and agree that Merit shall have no liability to such Users or any third party arising from or relating to the ranking of any Contributor or Pull Request(s), including any actual or perceived inaccuracies in same.
Sponsors are solely responsible for determining the amount and allocation of any Contributor Rewards payable to or in connection with any Contributors. Merit is not responsible for settling any disputes between any Users. Merit is not responsible for, or able to determine or set, the allocation of Contributor Rewards for each individual Contributor, and such determination is made solely by the Sponsor. Merit is not a party to any transaction on the Services or Smart Contract. YOU ACKNOWLEDGE AND AGREE THAT MERIT IS NOT RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR OMISSIONS TAKEN BY ANY SPONSOR OR CONTRIBUTOR.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
You acknowledge and agree that the Services and Content made available by Merit on the Services are for informational purposes only, and should not be construed as providing any legal, regulatory, tax, financial, or other professional advice. You are solely responsible for ensuring your compliance with applicable law, including without limitation tax and employment laws applicable to you, and you agree that Merit shall have no liability in connection with any noncompliance. Merit does not guarantee or warrant any outcome with respect to use of the Services, and nothing in the Services should be construed as or used as a substitute for the advice of competent legal or tax professionals.
You understand that the Services are evolving. You acknowledge and agree that Merit may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services, and you are solely responsible for updating any and all software.
By entering into this Agreement or using any of the Services, to the maximum extent permitted by applicable law and subject to Merit’s Privacy Policy, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Merit and industry developments.
Merit may, from time to time, offer access to services that are classified as a trial or beta version (“Beta Services”). Access to and use of Beta Services may be subject to additional agreements. Merit makes no representations that Beta Services will ever be made generally available and reserves the right to discontinue or modify Beta Services at any time without notice. Beta Services are provided “AS IS” and “WITH ALL FAULTS,” and may contain bugs, errors or other defects. Your use of any Beta Services is at your sole risk.
In order to access certain features of the Services, you are required to become a Registered User. For purposes of this Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”) and, as applicable, has connected a valid Github account and third-party digital wallet or other payment method to such Account as permitted by the Services (each such account, a “Third-Party Account”).
You agree to (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form or otherwise in connection with your use of the Services (the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. You represent that you are (i) at least eighteen (18) years old; and (ii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or any access code with anyone, and you agree to notify Merit immediately of any unauthorized use of your Account or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Merit has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Merit has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof), and you may become ineligible to receive all or some Contributor Rewards. You agree not to create an Account or use the Service using a false identity or information, or on behalf of someone other than yourself. Merit reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights or that you do not own or control the applicable Third-Party Account. You agree not to create an Account or use the Services if you have been previously removed by Merit, or if you have been previously banned from any of the Services. You acknowledge and agree that Merit will use your Registration Data in accordance with its Privacy Policy.
Where Sponsor enters into a contractual relationship under which Merit Systems agrees to act on behalf of Sponsor with respect to the Services, you hereby appoint Merit Systems as agent of the payee for all contributions; payment to Merit in accordance with these Terms constitutes full and final satisfaction of your payment obligation to the Contributor.
Certain Services require you to link your Account with a Third-Party Account (such as a github account) and allow Merit to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Merit and/or grant Merit access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Merit to pay any fees or making Merit subject to any usage limitations imposed by such Third-Party Services (as defined in Section 17). By granting Merit access to any Third-Party Account, you understand that Merit may access, Make Available (defined below), and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials that you have provided to and stored in your Third-Party Account (“Repository Content”) so that it is available on and through the Services via your Account. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Services. If a Third-Party Account or associated service becomes unavailable, or Merit’s access to such Third-Party Account is terminated by the Third-Party Services, then Repository Content will no longer be available on and through the Services. You will indemnify Merit for any liability or expense Merit may incur in connection with linking and accessing your Third-Party Account. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICES ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICES, AND MERIT DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Merit makes
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Merit. Merit reserves the right to terminate your Account if it has been inactive for one hundred eighty (180) days.
You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
You represent and warrant that (i) any Repository that you use in connection with the Services is owned or controlled by you; and (ii) you are eligible to use the Services and issue or distribute Contributor Rewards under all applicable laws, including the laws of the United States and of your jurisdiction.
Sponsor authorizes Merit to obtain information about Sponsor as a business entity, and to report adverse business information about Sponsor to third parties including but not limited to Payment Service Providers (defined below) or applicable tax authorities. Merit reserves the right to terminate this Agreement immediately with or without notice or liability to Sponsor if Merit is unable to verify Sponsor’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Merit or which Merit may not legally disclose).
Sponsor acknowledges and agrees that Merit has no obligation to Sponsor to independently verify the Registration Data or other data or information of or with respect to any Contributor, and that Sponsor is solely responsible for ensuring that Contributor Rewards paid by Sponsor to any Contributor comply with any and all applicable laws, rules, and regulations.
You understand and agree that you are solely responsible for any determinations of work authorization and/or employment classification with respect to any Contributors, and you release Merit from any liability arising therefrom.
Sponsor will promptly notify Merit of any third-party notices (including without limitation notices from tax authorities or other government agencies) received by Sponsor that could affect Merit’s ability to provide the Services or increase the likelihood that any case, complaint, or claim is brought against Merit or Sponsor with respect to the Services.
Sponsor acknowledges and agrees that all Repository Content is provided by the applicable Contributor, and not by Merit. Any rights to use any Repository Content are governed by the terms of the applicable Repository or Third-Party Service. Merit does not independently investigate, and cannot verify, any aspect of any Repository Content, including whether any Contributor has the rights to make any Repository Content available or whether such Repository Content is the independent work of such Contributor. Sponsor uses any Repository Content at its own risk.
Sponsor acknowledges and agrees that Contributor Rewards are locked in the Smart Contract until the claim period has elapsed (30 calendar days). During the claim period, Sponsor acknowledges that it has no ability to reclaim funds sent to the Smart Contract. Sponsor understands and agrees that after the claim period elapses, Contributor Rewards may still be claimed by Contributors unless or until Sponsor withdraws such funds from the Smart Contract. Sponsor releases Merit from all liability related to claiming or reclaiming Contributor Rewards.
In order to receive any Contributor Rewards, you must connect a digital wallet compatible with the Services and Smart Contract to your Account and to the Smart Contract, as applicable. You represent and warrant that (i) any Third-Party Account that you use in connection with the Services is owned or controlled by you; (ii) any Pull Requests attributable to you were created and submitted by you; (iii) you are eligible to use the Services and receive Contributor Rewards under all applicable laws, including the laws of the United States and of your jurisdiction; and (iv) no Pull Request or other User Content submitted by you infringes or violates the intellectual property or other proprietary rights of any third party.
You agree to promptly provide all information requested by Merit or any Sponsor with respect to any Contributor Rewards, including without limitation any tax form, as applicable. The foregoing is an express precondition of your receipt of any Contributor Rewards via the Smart Contract. You understand and agree that your personal information may be provided by Merit to the United States Internal Revenue Service to verify your identity and tax status as a condition of receiving any Contributor Rewards.
You understand and agree that Sponsor is solely responsible for your work authorization and/or employment classification and you release Merit from any liability arising therefrom.
You acknowledge and agree that the terms (including licensing terms and open-source requirements) of the applicable Repository, including any Third-Party Service on which such Repository is hosted, will govern and control your Repository Content. Without limiting the foregoing, you represent and warrant that, at all times during the term of this Agreement, your Repository Content will be subject to and comply with such third-party terms.
You understand and agree that you have no legal right or entitlement to Contributor Rewards at any time prior to such Rewards being deposited in your digital wallet. Contributor Rewards are determined solely and exclusively by the Sponsor. You are solely responsible for fully and completely satisfying all steps of the Contributor Rewards. Neither Merit nor the Sponsor has any liability to you due to your failure to complete the Contributor Rewards claim process, and you release Merit from any liability arising therefrom.
You acknowledge that all Content (as defined below), including the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Merit, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services, including Repository Content (“Your Content”), and that you and other Registered Users of the Services, and not Merit, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
Unless and solely to the extent expressly agreed to by Merit in writing elsewhere, Merit has no obligation to store any of Your Content that you Make Available on the Services. Merit has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Merit retains the right to create reasonable limits on Merit’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Merit in its sole discretion. We encourage you to make back-up copies of or otherwise store any of Your Content or other data.
Except with respect to Your Content and User Content, you agree that Merit and its suppliers own all rights, title and interest in the Services, including but not limited to, any computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and software (collectively, “Content”) made available thereby or therethrough. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
“Merit Systems” and all related stylizations, graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of Merit and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
Merit does not claim ownership of Your Content. However, when you as a Registered User post, publish or transmit Your Content on, in, or through the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
Subject to any applicable account settings that you select, you grant Merit a fully paid, royalty-free, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services as contemplated herein. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to or Make Available through or in connection with the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Merit, are responsible for all of Your Content that you Make Available on or in the Services. You represent and warrant that you have complied with all laws applicable to Your Content, including without limitation any laws that require you to obtain the consent of one or more third parties in order to upload such Content to or make such Content available through Merit, and that Your Content and use thereof in connection with the Services will not violate the rights of any third parties. Any Content posted by you may not contain violent, sexually explicit, or offensive subject matter as determined by Merit in its sole discretion.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit Merit to identify you by any name and/or email address provided in your Registration Data and any other publicly available Repository Content as the contributor of Your Content in connection with your use of the Services.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Merit through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Merit has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Merit a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Merit’s business.
The Ranking Functions and certain other Services utilize certain artificial intelligence and deep learning platforms, algorithms and models (“Models”) to provide and improve the Services. You hereby grant Merit a fully paid, royalty-free, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use any of Your Content or other interactions with the applicable Services (e.g. rankings of Pull Requests provided in connection with any Ranking Functions) that you submit or provide in connection with such Services to provide and improve the applicable Services, including by using Your Content to train any such Models.
As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Merit; (c) use any metatags or other “hidden text” using Merit’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website 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); (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or (g) take any action or Make Available any Content on or through the Services that: (i) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (ii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iii) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Merit’s prior written consent; (iv) impersonates any person or entity, including any employee or representative of Merit; or (v) interferes with or attempts to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement. Without limiting the foregoing, except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this Section. Any future release, update or other addition to the Services shall be subject to this Agreement. Merit, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Services terminates the licenses granted by Merit to you pursuant to this Agreement.
Merit may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring.
You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact through the Services; provided, however, that Merit reserves the right, but has no obligation, to intercede in such disputes. You agree that Merit will not be responsible for any liability incurred as the result of such interactions.
The Services may contain User Content provided by other Registered Users. Merit is not responsible for and does not control User Content. Merit does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk. Merit has the right to remove User Content in its sole discretion for any or no reason.
Merit is not a party to any transaction initiated or facilitated through the Services. Such transactions are solely between Users. In the event of any dispute between Users, we reserve the right, but have no obligation, to intercede. While we may, in our sole discretion, help facilitate resolution of disputes through various programs, we have no obligation to do so. We cannot control or guarantee the ability of Users to complete transactions, or that any transaction can be completed. Merit makes no representations about the suitability, reliability, timeliness, or accuracy in public, private, or offline interactions. When interacting with other Users, you should exercise caution and common sense, just as you would when interacting offline with other persons whom you do not know. NEITHER MERIT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. MERIT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING IN CONNECTION WITH YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES.
PLEASE READ CAREFULLY THIS IMPORTANT INFORMATION ABOUT PROCEDURES FOR TRANSACTING ON THE SERVICES BEFORE USING ANY PAYMENT SERVICES. To help fight the funding of terrorism and money laundering activities, U.S. federal law requires all financial institutions to obtain, verify, and record information that identifies each person who has an account which has the ability to engage in financial transactions on the Services. When you engage in transactions on the Services, including by using the Services to disburse, allocate, or receive Contributor Rewards, we and/or our Payment Service Provider(s) (as defined below) may ask you to provide additional information or copies of identifying documents that will allow us, the applicable Sponsor, and/or our Payment Service Provider(s) to identify you. We reserve the right to require you to provide such additional information and documents. Failure to provide such information upon request, as well as any other violation of this Agreement, may result in your removal from the Services and may prevent you from receiving Contributor Rewards.
Merit does not currently charge an access fee to Registered Users who access the Services. However, it reserves the right to charge such fees in the future. You agree to pay all fees or charges incurred by you in connection with the Services accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable, in which case you must provide Merit with a valid credit card (Visa, MasterCard, or any other issuer accepted by us), PayPal account, digital wallet, or other account with a payment provider (“Payment Method”), or purchase order information, as a condition to signing up for any paid Services. Your Payment Method agreement governs your use of the designated credit card, PayPal account, or other payment account and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Merit with your Payment Method account and associated payment information, you agree that Merit is authorized to immediately invoice you for all fees and charges due and payable to Merit hereunder and that no additional notice or consent is required. You agree to immediately notify Merit of any change in your billing address or the Payment Method account used for payment hereunder. Merit reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you. You agree to make all payments of fees to Merit free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Merit will be your sole responsibility, and you will provide Merit with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Merit receives a percentage of all amounts deployed through the Merit Smart Contract as compensation for Registered User services, including repository hosting and connection services, general computation/bandwidth costs, and other fixed costs associated with operating and maintaining the Services. Such amounts are remitted automatically and programmatically. You shall not, directly or indirectly, avoid or circumvent (or cause or permit any third party to avoid or circumvent, or facilitate any third party’s efforts in avoiding or circumventing) Merit’s receipt of any such amounts.
If Merit determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Merit shall collect such Sales Tax in addition to any payments required under this Agreement. If any Services, or payments for any Services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Merit, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Merit for any liability or expense Merit may incur in connection with such Sales Taxes. Upon Merit’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Any cryptocurrency transaction, including any payment of Contributor Rewards denominated or payable in any cryptocurrency, must be confirmed by and recorded on the applicable blockchain (each, a “Blockchain”) in order to be successfully completed. Merit has no control over any Blockchain, and therefore cannot and does not ensure (or undertake to ensure) that any transaction details that you submit or receive via the Service (or any Third-Party Services) will be validated by or confirmed on the relevant Blockchain, and Merit does not have the ability to execute any transactions or facilitate any cancellation or modification requests. Merit is not responsible for any losses or harms sustained by any Registered User (or any third party) due to vulnerability, any kind of failure, or any other features of or inherent to blockchain technology. Merit is not responsible for casualties due to developers’ or representatives’ delay or failure to report any issues with any Blockchain, including without limitation forks, technical node issues, or any other issues that result in losses of any sort. You accept and acknowledge that you accept all risks of loss, to the maximum extent permitted by law. You further accept and acknowledge the following:
(a) You represent and warrant that you (i) have the necessary technical expertise and ability to review and evaluate the security, integrity, and operation of any Blockchains used in connection with the Services; (ii) have the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits, risks, and applicable compliance requirements under applicable laws of any use of any Blockchains; (iii) know, understand, and accept the risks associated with any Blockchains; and (iv) accept the risks associated with Blockchain technology generally, and are responsible for conducting your own independent analysis of the risks specific to your use of the Services. You further agree that Merit will have no responsibility or liability for such risks.
(b) There are risks associated with using digital assets, including, but not limited to, disruption or failure of hardware, software, and Internet connections; the risk of malicious software introduction; the risk of unauthorized, unlawful, or accidental acquisition, modification, destruction, loss, alteration, encryption, disclosure of, or access to information (including sensitive information), such as by third parties; the risks of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable; and the risk that such digital assets may fluctuate in value. You accept and acknowledge that Merit will not be responsible for any communication failures, disruptions, errors, distortions, delays, or losses you may experience when using Blockchain technology, however caused.
(c) The regulatory regimes governing Blockchain technologies, cryptocurrencies, and tokens are uncertain, and new regulations or policies, or new or different interpretations of existing regulations, may materially adversely affect the development of the Services or access to and utility of the Smart Contract.
(d) Merit makes no guarantee as to the functionality of any Blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions that are unfavorable to digital assets held or received by you. You acknowledge and accept that the rules governing the operation of a Blockchain may be subject to sudden changes that may materially alter such Blockchain and affect the value and function of any of your digital assets.
(e) Merit makes no guarantee as to the security of the Smart Contract or any Blockchain or Third-Party Service. Merit is not liable for any hacks, double spending, or any other attacks on the Smart Contract or any Blockchain or Third-Party Service.
(f) The Blockchains are controlled by third parties, and Merit is not responsible for their performance (including any failure of performance), nor any risks associated with the use thereof. The Services rely on, and Merit makes no guarantee or warranties as to the functionality of or access to, any Blockchain or other Third-Party Service.
(g) Stablecoin Risks and Considerations. You acknowledge and accept the following risks and considerations regarding Stablecoins:
(i) Unique Features of Stablecoins. Stablecoins are not legal tender in the United States.
(ii) Stability, Valuation, and Liquidity. The price of Stablecoins is based on the reputation of the Issuer, the financial institution and the jurisdiction where the Issuer stores the Fiat Currency associated with the Stablecoin, the stability of the Blockchain on which the Stablecoins are issued, the laws that apply to Stablecoins and many other factors. Some Stablecoins may lose all of their value, or you may be unable to redeem Stablecoins for Fiat Currency as a result of one or a combination of these factors.
(iii) Cybersecurity. The cybersecurity risks of Stablecoins and related Receiving Wallets include hacking vulnerabilities and a risk that Blockchains may not be immutable. A cybersecurity event could result in a substantial, immediate and irreversible loss of your Stablecoins. Even a minor cybersecurity event in a Stablecoin is likely to result in a loss of value or ability to redeem a Stablecoin.
(iv) Stablecoin Issuers, Intermediaries and Custodians. Regulation of Stablecoins is constantly evolving. A lack of regulatory oversight creates a risk that an Issuer may not hold enough Fiat Currency to satisfy its obligations to redeem Stablecoins, and that such deficiency may not be easily identified or discovered. In addition, many Issuers and their service providers have experienced significant outages, downtime and processing delays, and may have a higher level of operational risk than traditional financial institutions.
(v) Regulatory Landscape. Stablecoins currently face an uncertain regulatory landscape. In the United States, Stablecoins are subject to limited federal oversight, and state regulations that apply to Stablecoins vary from state to state and may be inconsistently applied. In addition, Stablecoins may be regulated by additional federal regulators in the future. Such laws and regulations may impact the price of Stablecoins and their acceptance by users, merchants and service providers.
(vi) Technology. The relatively new and rapidly evolving technology underlying Stablecoins introduces unique risks. For example, a unique private key is required to access, use or transfer a Stablecoin on a Blockchain. The loss, theft or destruction of a private key may result in an irreversible loss.
To the maximum extent permitted by applicable law, you agree to indemnify and hold Merit, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Merit Party”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) your violation of any applicable laws, rules or regulations, or (f) any acts or omissions by any Admin User associated with your Account. Merit reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Merit in asserting any available defenses. This provision does not require you to indemnify any of the Merit Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Services.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MERIT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE AND/OR SERVICES.
(a) MERIT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MERIT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MERIT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, MERIT MAY OFFER BETA SERVICES. SUCH BETA SERVICES ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MERIT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO BETA SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT MERIT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MERIT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES, INCLUDING WITHOUT LIMITATION OTHER REGISTERED USERS. YOU UNDERSTAND THAT MERIT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. MERIT MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Merit to monitor such materials and that you access these materials at your own risk.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL MERIT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT MERIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES OR SMART CONTRACT; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A MERIT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MERIT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A MERIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. TO THE EXTENT REQUIRED BY APPLICABLE LAW, MERIT DOES NOT SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY MERIT’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (iii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, MERIT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO MERIT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MERIT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A MERIT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A MERIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
EXCEPT FOR MERIT’S OBLIGATIONS WITH RESPECT TO YOUR PERSONAL DATA AS SET FORTH IN MERIT’S PRIVACY POLICY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MERIT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET OUT IN THIS SECTION 13. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MERIT AND YOU.
It is Merit’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Merit by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on or transmitted through the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Merit’s Copyright Agent for notice of claims of copyright infringement is as follows: Samuel Ragsdale, CEO, Merit Systems Inc., 300 Kent Ave. Ste 604, Brooklyn, NY 11249, [email protected].
This Agreement commences on the earlier of: (a) the date you first used the Services or (b) the date when you otherwise accept this Agreement (as described in the preamble above) and will remain in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement.
Merit has the right to, immediately and without notice, suspend or terminate any Services provided to you, at any time, in the event that (a) you breach any provision of this Agreement; (b) Merit determines that your use of the Services (including without limitation any of Your Content) violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users or the public, or could create liability for Merit; or (c) Merit otherwise determines in its sole discretion not to provide the Services. You agree that all terminations shall be made in Merit’s sole discretion, and that Merit shall not be liable to you or any third party for any termination of your Account.
If you want to terminate the Services provided by Merit, you may do so by (a) notifying Merit at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Merit’s address set forth below.
Termination of any Services include removal of access to such Services and barring of further use of the Services. Termination of all Services also includes deletion of your Account and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any of the Services, your right to use such Services will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Merit will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
If your registration(s) with, or ability to access, the Services is discontinued by Merit due to your violation of any portion of this Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Merit reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country, including the ability to withdraw any funds associated with your Account. These references do not imply that Merit intends to announce such Services or Content in your country. The Services are controlled and offered by Merit from its facilities in the United States of America. Merit makes no representations that the Services are appropriate or available for use in other locations. To the maximum extent permitted by applicable law, those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
The Services may contain links to third-party websites, applications, and/or advertisements (“Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left the Services, and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Merit. Merit is not responsible for any Third-Party Services. Merit provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Subject to the terms of this Arbitration Agreement (including Section 18.2, which shall apply notwithstanding any laws or rules in your jurisdiction that may prohibit mandatory or compelled arbitration), you and Merit agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Merit may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Merit may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
There might be instances when a Dispute arises between you and the Merit Parties. If that occurs, the Merit Parties are committed to working with you to reach a reasonable resolution. You and the Merit Parties agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and the Merit Parties therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to the Merit Parties that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to the contact information set forth below. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address; (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
YOU AND THE MERIT PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Merit Parties are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 18.1. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
YOU AND THE MERIT PARTIES AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 18.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE SPONSOR OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER SPONSOR OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Subsection 18.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Subsection 18.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and the Merit Parties agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the courts of New York, sitting in New York City. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or the Merit Parties from participating in a class-wide settlement of claims.
This Agreement evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and the Merit Parties agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration (if applicable); (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and the Merit Parties otherwise agree, or the Batch Arbitration process discussed in subsection 18.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and the Merit Parties agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 18.9 is triggered, the AAA will appoint the arbitrator for each batch.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Subsection 18.4, including any claim that all or part of Subsection 18.4 is unenforceable, illegal, void or voidable, or that Subsection 18.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Subsection 18.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Subsection 18.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or the Merit Parties need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
To increase the efficiency of administration and resolution of arbitrations, you and the Merit Parties agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against the Merit Parties by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by the Merit Parties. You and the Merit Parties agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to 224 West 35th Street, Ste 500 #2218, New York, NY 10001, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, email address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in Subsection 18.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with the Merit Parties as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to The Merit Parties at 224 West 35th Street, Ste 500 #2218, New York, NY 10001, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. The Merit Parties will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
This Arbitration Agreement will survive the termination of your relationship with the Merit Parties.
The communications between you and Merit may take place via electronic means, whether you visit the Services or send Merit e-mails, or whether Merit posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Merit in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Merit provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Merit’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Merit shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a force majeure event occurs that affects Merit’s performance of its obligations under this Agreement: (a) Merit will contact you as soon as reasonably possible to notify you; and (b) Merit’s obligations under this Agreement will be suspended and the time for Merit’s performance of its obligations will be extended for the duration of the force majeure event.
If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Merit agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York, NY.
The terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Where Merit requires that you provide an e-mail address, you are responsible for providing Merit with your most current e-mail address, and for keeping such e-mail address current by updating your Account. In the event that the last e-mail address you provided to Merit is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Merit’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Merit at the following address: 224 West 35th Street, Ste 500 #2218, New York, NY 10001. Such notice shall be deemed given when received by Merit by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Merit are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Merit products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
In accordance with California Civil 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.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
The following provisions shall apply only if you are located in the countries listed below.
A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Notwithstanding anything to the contrary in Section 13 (Limitation of Liability), Merit is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).