Mercury Terms of Service for Companies
1. Scope of Mercury Services
1.1 The Mercury platform (“Mercury Platform”) is an online marketplace that enables certain parties (“Vendors”) to publicize services (“Services”) they offer on the Mercury Platform and to communicate with members (“Contractors”) of the Mercury Platform who wish to refer Vendors’ Services to third party buyers (“Buyers”). In order for a Vendor to advertise a Listing and avail itself of Contractors on the Mercury Platform, a Vendor must enter into a referral agreement (“Referral Agreement”) with Mercury.
1.2 When a Buyer agrees to purchase (“Purchase Agreement”) Vendor’s Services advertised on the Mercury Platform, the Buyer and Vendor must enter an agreement distinct from Company’s Referral Agreement with Mercury. Mercury is not and will not become a party to any contractual relationship between a Vendor and Buyer and does not act as an agent in any capacity for Vendor or any Buyer. Upon Vendor reaching a Purchase Agreement with a Buyer, Mercury ceases to be involved in the relationship between the Vendor and Buyer. However, Contractors may still be involved in the relationship between the Vendor and Buyer in the form of consultations, further sales, or the facilitation of communications between Vendor and Buyer as needed.
1.3 If you choose to use the Mercury Platform as a Vendor, your relationship with Mercury is limited to being an independent participant in the Mercury Platform, and you are not an employee, agent, joint venturer or partner of Mercury for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Mercury.
2. Code of Conduct
Company agrees that once it establishes a relationship (“Relationship”) with a Contractor through use of the Mercury Platform, it will engage in and execute subsequent referral arrangements with that Contractor strictly within the Mercury Platform. A Relationship is considered established on the Mercury Platform when Company and a Contractor have not engaged in executed referral arrangements prior to connecting with one another on the Mercury Platform. Mercury will consider any violation of this code of conduct to be a breach of these Terms of Service.
3. Modification of these Terms
Mercury reserves the right to modify these Terms of Services (“Terms”) at any time in accordance with this provision. If we make changes to the Terms, we will post the revised Terms on the Mercury Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Mercury Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 You must register an account ("Mercury Account") to access and use certain features of the Mercury Platform on behalf of Company. You represent and warrant that you have the authority to legally bind Company and that the execution of this agreement and performance of its obligations thereunder do not and will not violate any other agreement to which the company you represent is a party.
4.2 You are responsible for maintaining the confidentiality and security of your Mercury Account credentials and may not disclose your credentials to any third party. You must immediately notify Mercury if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Mercury Account. You are liable for any and all activities conducted through your Mercury Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
5. Prohibited Activities
5.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Mercury Platform. In connection with your use of the Mercury Platform, you will not assist or enable others to:breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, Policies or Standards;use the Mercury Platform for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Mercury endorsement, partnership or otherwise misleads others as to your affiliation with Mercury;use the Mercury Platform in connection with the distribution of unsolicited commercial messages ("spam");offer, as a Vendor, any Service that you do not yourself own or have permission to make available through the Mercury Platform;discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behavior;use, display, mirror or frame the Mercury Platform, or any individual element within the Mercury Platform, Mercury's name, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Mercury Platform, without Mercury's express written consent;dilute, tarnish or otherwise harm the Mercury brand in any way, including through registering and/or using Mercury or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Mercury domains, trademarks, taglines, promotional campaigns;use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Mercury Platform for any purpose;avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Mercury or any of Mercury's providers or any other third party to protect the Mercury Platform;attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Mercury Platform;take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Mercury Platform;export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; orviolate or infringe anyone else’s rights or otherwise cause harm to anyone.
5.2 If you feel that any Contractor you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Mercury by contacting us with your police station and report number (if available); provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
6. Promotion Restrictions
6.1 In connection with Company’s activities hereunder, Company shall not engage in any unlawful, unfair, deceptive or abusive marketing practices, as determined by Mercury in our sole discretion. Such practices, include, without limitation, spamming or other unsolicited commercial email (UCE); posting or marketing to non-commercial groups, boards, forums or social networks; or advertising in any way that conceals or misrepresents Company identity, Company domain name, or Company return email address. At all times, Company must clearly represent itself and Company web sites as independent from Mercury. We will consider a violation of any of the rules described hereunder as a breach of this Agreement that leads to termination of this Agreement and Company participation in the Vendor Program.
6.2 Company shall not bid in Company’s advertising campaigns on keywords such as Mercury, trymercury.com, www.trymercury, www.trymercury.com, and/or any misspellings or similar alterations of these terms (separately or in combination with other keywords). Further, Company shall not transmit any so-called “interstitials,” “Parasitic Marketing,” “Shopping Assistance Applications,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” or any similar tools, programs or applications from the time the user clicks on a qualifying link until such time as the user has fully exited Mercury’s site. The foregoing restricted activities shall include, without limitation, any application, tool or code that (a) causes the overwriting tracking cookies through any means other than a Company initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through installed software or otherwise (e.g., causing pop-ups, commission tracking cookies to be put in place, or other commission tracking cookies to be overwritten or the like); (c) sets commission tracking cookies through loading of the Mercury site in iframes, hidden links or automatic pop ups; (d) targets text on web sites, other than those web sites 100% owned by Company for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of other Vendor banners, other than those that are on web sites 100% owned by Company.
6.3 Mercury reserves the right to terminate this Agreement and Company’s participation in the Vendor Program immediately and without notice to Company should Company commit fraud, misrepresentation or other abuse in Company’s participation in the Vendor Program. If such fraud, misrepresentation or abuse is discovered, Mercury shall not be liable to Company for any payment associated with a Purchase made on the basis of the fraud, misrepresentation, or abuse.
6.4 It is entirely Company’s responsibility to follow all applicable intellectual property and other laws that pertain to Company’s activities under the Vendor Program. Company must have express permission to use any person's copyrighted material, whether it be a writing, an image, or any other copyrightable work. Mercury will not be responsible (and Company will be solely responsible and will fully indemnify Mercury) if Company uses another person's copyrighted material or other intellectual property in violation of the law or any third party rights.
7. Term and Termination, Suspension and other Measures
7.1 You may terminate this Agreement at any time by emailing email@example.com and communicating your desire to cancel your account. If you cancel your Mercury Account, any advertised Services will be automatically deleted from the Mercury Platform but you are still obligated to fulfill and complete any outstanding Services associated with executed Purchase Agreements with Buyers, and Mercury is still owed the full amount of the commission owed to it pursuant to such Purchase Agreements.
7.2 When you terminate this Agreement, you are not entitled to a restoration of your Mercury account or any previous content to which you had access on the Mercury Platform.
If you choose to use the Mercury Platform, you do so voluntarily and at your sole risk. The Mercury Platform is provided “as is”, without warranty of any kind, either express or implied. You agree that you have had whatever opportunity you deem necessary to investigate the Mercury Services, laws, rules, or regulations and that you are not relying upon any statement of law or fact made by Mercury. The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Mercury Platform, your publishing of any Service via the Mercury Platform, or any other interaction you have with other Vendors or Contractors, whether in person or online, remains with you. Neither Mercury nor any other party involved in creating, producing, or delivering the Mercury Platform will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Mercury Platform, (iii) from any communications, interactions or meetings with other Vendors or Contractors or other persons with whom you communicate, interact or meet with as a result of your use of the Mercury Platform.
You agree to release, defend (at Mercury’s option), indemnify, and hold Mercury and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Mercury Platform or any Mercury services, (iii) your interaction with any Vendor or Contractor, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, stay, participation or use, or (iv) your breach of any laws, regulations or third party rights.
11. Dispute Resolution and Arbitration Agreement
1.1 This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States, but bring any claim against Mercury in the United States (to the extent not in conflict with Section 21).
11.2 Overview of Dispute Resolution Process. Mercury is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Mercury’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 19). Specifically, the process provides:Arbitrators must be neutral and no party may unilaterally select an arbitrator;Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;Parties retain the right to seek relief in small claims court for certain claims, at their option;The initial filing fee for the consumer is capped at $200;The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
11.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Mercury each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Mercury’s customer service team by emailing us. If after a good faith effort to negotiate, one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
11.4 Agreement to Arbitrate. You and Mercury mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Mercury Platform will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Mercury agree that the arbitrator will decide that issue.
11.5 Exceptions to Arbitration Agreement. You and Mercury each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
11.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
11.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Mercury agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Mercury both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
11.8 Modification of AAA Rules - Attorney’s Fees and Costs. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, Mercury agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
11.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
11.10 Jury Trial Waiver. You and Mercury acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
11.11 No Class Actions or Representative Proceedings. You and Mercury acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Mercury both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
11.12 Severability. Except as provided in Section 19.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
11.13 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Mercury changes this Section 19 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Mercury’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Mercury in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
11.14 Survival. This Section 9 will survive any termination of these Terms and will continue to apply even if you stop using the Mercury Platform or terminate your Mercury Account.
12. Applicable Law and Jurisdiction
If you reside in the United States, these Terms will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 19 must be brought in state or federal court in San Francisco, California, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in San Francisco, California.
13. General Provisions
13.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Mercury and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Mercury and you in relation to the access to and use of the Mercury Platform.
13.2 No joint venture, partnership, employment, or agency relationship exists between you and Mercury as a result of this Agreement or your use of the Mercury Platform.
13.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
13.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
13.5 Mercury’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
13.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Mercury's prior written consent. Mercury may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
13.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be in writing and given by Mercury via email, Mercury Platform notification, or messaging service (including SMS and WeChat). For notices made to Members residing outside of Germany, the date of receipt will be deemed the date on which Mercury transmits the notice.
13.8 If you reside in the EU you can access the European Commission’s online dispute resolution platform here: http://ec.europa.eu/consumers/odr. Please note that Mercury Ireland is not committed nor obliged to use an alternative dispute resolution entity to resolve disputes with consumers.
13.9 If you have any questions about these Terms please email us at firstname.lastname@example.org.