These Terms and Conditions (these “Terms”) explain the terms by which you may access and use the online and/or mobile software and services (collectively, the “DevInsight Services”) provided by Merico, Inc. (“Merico,” “we,” “our,” or “us”) and its affiliates. By accessing or using the DevInsight Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Policy (“Privacy Policy”), whether or not you are a registered user of the DevInsight Services. These Terms apply to all visitors, users, and others who access or use the DevInsight Services (“Users”).
Please read these Terms carefully to ensure that you understand each provision. You acknowledge that, as further detailed below, by agreeing to these Terms, you are agreeing that:
These Terms and Conditions (these “Terms”) explain the terms by which you may access and use the online and/or mobile software and services (collectively, the “DevInsight Services”) provided by Merico, Inc. (“Merico,” “we,” “our,” or “us”) and its affiliates. By accessing or using the DevInsight Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms and to the collection and use of your information as set forth in our Privacy Policy (“Privacy Policy”), whether or not you are a registered user of the DevInsight Services. These Terms apply to all visitors, users, and others who access or use the DevInsight Services (“Users”).
Please read these Terms carefully to ensure that you understand each provision. You acknowledge that, as further detailed below, by agreeing to these Terms, you are agreeing that:
· You may use the DevInsight Services only as set forth in these Terms;
· The DevInsight Services are provided “as-is” and “as-available;”
· YOU ARE WAIVING A RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND AGREEING TO THE MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION INCLUDED HEREIN THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES; and
· We reserve the right to modify these Terms and may provide notice of these changes as described below.
1. The DevInsight Services
1.1 Eligibility.
These Terms are a contract between you and us. You must read and agree to these Terms before using the DevInsight Services. If you do not agree to the terms and conditions of these Terms, you do not have our permission to use the DevInsight Services. You may use the DevInsight Services only if you can form a binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the DevInsight Services by anyone under eighteen (18) years of age is strictly prohibited and in violation of these Terms. The DevInsight Services are not available to any Users previously removed from the DevInsight Services by us.
1.2 Limited License.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the DevInsight Services as permitted by the features of the DevInsight Services. DevInsight reserves all rights not expressly granted herein in the DevInsight Services and the DevInsight Content (as defined below). DevInsight may terminate this license at any time for any reason or no reason.
1.3 DevInsight Accounts.
To access the services and functionality of the DevInsight Services that we may establish and maintain from time to time, you may be required to register for one or more accounts for each of the DevInsight Services (collectively, the “DevInsight Accounts”). We may maintain different types of DevInsight Accounts for different types of Users. If you open a DevInsight Account on behalf of a company, organization, or other entity, then: (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf. By connecting to the DevInsight Services with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s DevInsight Accounts without permission from us and the other User. When creating your DevInsight Accounts, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your DevInsight Accounts, and you must keep your passwords for your DevInsight Accounts secure. We encourage you to use “strong” passwords (passwords that use a combination of uppercase and lowercase letters, numbers and symbols) with your DevInsight Accounts. You must notify us immediately of any breach of security or unauthorized access or use of your DevInsight Accounts. We will not be liable for any losses caused by any unauthorized access or use of your DevInsight Accounts.
You may control your User profile and how you interact with the DevInsight Services by changing the settings in your settings page. By providing us your email address you consent to our using the email address to send you notices related to the DevInsight Services, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of the DevInsight Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences at any time in your settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.3.1 Administrative Accounts.
We may offer administrative DevInsight Accounts (“Administrative Accounts”) that can exercise certain options to initially determine the level of access, privacy, and security for other, related DevInsight Accounts. Administrative Accounts may also have the ability to disable other, related DevInsight Accounts for any reason or no reason. Administrator Accounts must comply in all respects with all terms and conditions applicable to DevInsight Accounts generally.
1.4 DevInsight Services Rules.
When using the DevInsight Services, you agree not to: (a) upload or transmit pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content or materials; (b) except where expressly permitted, use the DevInsight Services to engage in spamming, "chain letters", "pyramid schemes", advertisement of illegal or controlled products or services, or other advertising or marketing activities that violate these Terms, the Privacy Policy or any applicable laws; (c) use the DevInsight Services in any manner that infringes, violates or misappropriates any third party’s proprietary rights, including any Intellectual Property Rights or privacy rights; (d) use the DevInsight Services in any manner that is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities; (e) use the DevInsight Services in any manner that is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another's privacy; (f) use the DevInsight Services in any manner that is harmful to minors in any way; (g) use the DevInsight Services in any manner that is hateful or discriminatory based on race, color, gender, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by DevInsight; (h) use the DevInsight Services in any manner that in our sole discretion could damage, disable, overburden, or impair the DevInsight Services; (i) attempt to gain unauthorized access to the DevInsight Services, or any part of them, other DevInsight Accounts, computer systems or networks connected to the DevInsight Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the DevInsight Services or any activities conducted on the DevInsight Services; (j) modify the DevInsight Services in any manner or form, or use modified versions of the DevInsight Services, including but not limited to for the purpose of obtaining unauthorized access to the DevInsight Services; (k) use any robot, spider, scraper, or other automated means to access the DevInsight Services for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the DevInsight Services; (l) impersonate another person or access another User’s DevInsight Accounts without that User’s permission or to violate any contractual or fiduciary relationships; (m) share DevInsight -issued passwords with any third party or encourage any other User to do so; (n) modify, adapt, translate or create derivative works based upon the DevInsight Services; (o) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the DevInsight Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (p) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the DevInsight Services to any third party; (q) provide time sharing or similar services for any third party; (r) use the DevInsight Services for any purpose other than your own internal business use; (s) remove, circumvent, disable, damage or otherwise interfere with security-related features of the DevInsight Services, features that prevent or restrict use or copying of any content accessible through the DevInsight Services, or features that enforce limitations on use of the DevInsight Services; (t) access the DevInsight Services if you are a direct competitor of Merico, except with our prior written consent, or for any other competitive purposes; (u) collect or harvest any personally identifiable information, including account names, from the DevInsight Services; or (v) attempt, or assist any third party in attempting or engaging in, any of the foregoing.
1.5 Disputes with other Users.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. WE SHALL HAVE NO LIABILITY FOR YOUR INTERACTIONS WITH OTHER USERS, OR FOR ANY USER’S ACTION OR INACTION, INCLUDING, WITHOUT LIMITATION, ANY DISABLING OF YOUR DEVINSIGHT ACCOUNT BY AN ADMINISTRATIVE ACCOUNT.
1.6 Third Party Systems and Services Access. You may choose to allow us to retrieve data from third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow us to access such systems and services and you hereby grant us permission to access such systems and services and retrieve your data therefrom (such data, “Your Data”). We disclaim any and all liability associated with accessing and retrieving Your Data from such systems and services on your behalf. In order to connect the DevInsight Services with any third-party service, you hereby designate us as your agent and attorney-in-fact in connection with such service and further authorize us to: (a) store Your Data relating to such service on the DevInsight Services; (b) access such third-party service using any credentials or other materials you provide us; (c) gather and export from such third-party service any of Your Data as reasonably necessary for us to provide the DevInsight Services to you; and (d) otherwise take any action in connection with such service as is reasonably necessary for us to provide the DevInsight Services to you. If at any time you do not have the right and authority to allow us automatic access to such systems or services, then you hereby agree to notify us and to immediately disable such functionality within your DevInsight Accounts.
1.7 Third-Party Links and Information on the DevInsight Services. The DevInsight Services may contain links to third-party websites, information, materials, products, or services that are not owned or controlled by us. We do not endorse or assume any responsibility for any such third-party websites, information, materials, products, or services. If you access third-party sites, information, materials, products, or services from the DevInsight Services or share your User Submissions (as defined below) on or through any third-party sites, information, materials, products, or services, you do so at your own risk, and you understand that these Terms and the DevInsight Privacy Policy do not apply to your access and use of such third-party websites, information, materials, products, or services. You expressly relieve us from any and all liability arising from your use of any third-party websites, information, materials, products, or services including without limitation your importing of Your Data from such third-party sites, information, materials, products, or services.
1.8 Changes to the DevInsight Services.
We may, without prior notice: (a) change the DevInsight Services; (b) stop providing the DevInsight Services or features of the DevInsight Services, to you or to Users generally; or (c) create usage limits for the DevInsight Services. We may permanently or temporarily terminate or suspend your access to the DevInsight Services without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
2. User Submissions
Some areas of the DevInsight Services allow Users to import, submit, provide, or otherwise make available content such as code, data (including, but not limited to, Your Data), text, materials, content or other information (any such materials a User submits, provides, or otherwise makes available on the DevInsight Services is referred to as “User Submissions”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER SUBMISSIONS CREATED BY YOU. THE USER SUBMISSIONS YOU CREATE REMAINS YOURS; however, by importing, submitting, providing, or otherwise making available any User Submissions on or through the DevInsight Services, you hereby expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Submissions as necessary to operate the DevInsight Services and for the limited purposes described in our Privacy Policy. You also hereby grant each User of the DevInsight Services a non-exclusive license to access your User Submissions through the DevInsight Services, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the DevInsight Services and under these Terms. Notwithstanding the preceding license grant to other Users, we may allow you to set certain permissions for your User Submissions using the features and functionalities of the DevInsight Services – including, without limitation, designations of public or private viewing and access of your User Submissions – and each User of the DevInsight Services will be able to access and use your User Submissions in accordance with your permissions (including, without limitation, by “forking” any of your User Submissions by creating their own copies of your publicly available User Submissions).
For the purposes of these Terms, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Submissions, you affirm, represent and warrant the following:
· You have obtained and are solely responsible for obtaining all permissions, authorizations, rights and consents as may be required by law to import, submit, provide, or otherwise make available any of your User Submissions.
· Your User Submissions and our use thereof as contemplated by these Terms and the DevInsight Services will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
· We may exercise the rights to your User Submissions granted under these Terms without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
We take no responsibility and assume no liability for any User Submissions that you or any other User submits, provides or otherwise makes available over the DevInsight Services. You shall be solely responsible for your User Submissions and the consequences of importing it, submitting it, providing it, or otherwise making it available on the DevInsight Services, and you agree that we are only acting as a passive conduit for your online distribution of your User Submissions.
3. Our Proprietary Rights
Except for your User Submissions, the DevInsight Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Submissions belonging to other Users (the “DevInsight Content”), and all Intellectual Property Rights related thereto, are our exclusive property and the property of its licensors (including other Users who submit, post, or otherwise make available User Submissions to the DevInsight Services). Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any DevInsight Content. Use of the DevInsight Content for any purpose not expressly permitted by these Terms is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the DevInsight Services and other Merico products and services, including without limitation about how to improve the DevInsight Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by its employees, or obtained from sources other than you.
4. Paid Features of the DevInsight Services
4.1 Fees.
We may charge you fees (“Fees”) for your access and use of the DevInsight Services. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of the DevInsight Services (“Ordering Document”). For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. We may add new services for additional fees and charges and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms; provided however that if we have offered a specific duration and Fees for your use of the DevInsight Services, we agree that the Fees will remain in force for that duration.
4.2 Subscription Services. We may make the DevInsight Services available on an automatically renewing subscription basis (such services, the “Subscription Services”). We will identify any Subscription Services to you prior to submitting your order for the applicable Subscription Services. The following terms shall apply to any and all Subscription Services made available by us:
4.2.1 Automatic Billing and Policies.
YOUR SUBSCRIPTION TO ANY OF OUR SUBSCRIPTOIN SERVICES WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE SUBSCRIPTION SERVICES IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 4.2.2 OF THESE TERMS. When you purchase or otherwise enroll in Subscription Services, you expressly acknowledge and agree that: (1) We and our third-party payment processors are authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of the Subscription Services, subject to adjustment as described in Section 4.1 of these Terms, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or the Subscription Services are suspended, discontinued or terminated in accordance with these Terms. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in Fees in accordance with these Terms, and changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts.
4.2.2 Cancellation.
To cancel the Subscription Services, you must notify us before the start of the next Subscription Term using the appropriate functionalities of the Subscription Services or by contacting us at legal@merico.dev.
4.3 No Refunds.
You may cancel your DevInsight Accounts or the Subscription Services at your sole discretion; however, we do not grant refunds for cancellation and you acknowledge and agree that you will not be refunded any Fees for your cancellation of your DevInsight Accounts or the Subscription Services. In the event that we suspend or terminate your DevInsight Accounts or the Subscription Services for your breach of these Terms, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of the Subscription Services, any content or data associated with your DevInsight Accounts, or for anything else.
4.4 Payment Information; Taxes.
We or our third-party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for your DevInsight Accounts or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the DevInsight Accounts must be accurate, complete, and current. You may change your payment method by using the features and functionality of your DevInsight Accounts or by notifying us at legal@merico.dev
4.5 You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the DevInsight Services at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days, we may (without notice and liability to you) suspend or temporarily disable all or part of your access to the DevInsight Services and we shall be under no obligation to provide any or all of the DevInsight Services while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
4.6 Payment Processing Services.
We use third-party payment processors (“Payment Processors”) for our payment processing services. In connection with the processing of any payments through the DevInsight Services, the Payment Processor retains your financial information. We do not retain any of your financial information, including without limitation any of your credit card information. One of our Payment Processors is Stripe, Inc. (“Stripe”). To see how Stripe, access and uses your personal information, including without limitation your financial information, and to see what information we receive from Stripe, please see: (a) Stripe’s Stripe Connect Platform Agreement, available as of the effective date of these Terms at: https://stripe.com/us/connect/legal, and (b) Stripe’s privacy policy, available as of the effective date of these Terms at: https://stripe.com/us/privacy.
5. Privacy
We care about the privacy of our Users. You understand that by using the DevInsight Services you consent to the collection, use and disclosure of your personally identifiable information and aggregate and/or anonymized data as set forth in our Privacy Policy, and to have your personally identifiable information collected, used, transferred to and processed in the United States.
6. Security
We use commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
7. DMCA Notice
Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the DevInsight Services, please notify our copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
· An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
· Identification of the copyrighted work that you claim has been infringed;
· Identification of the material that is claimed to be infringing and where it is located on the DevInsight Services;
· Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;
· A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
· A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Company: Merico, Inc.
Address: 3790 El Camino Real #1014
Palo Alto, CA 94306
Tel.: (650) 449-4055
Email: legal@merico.dev
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the DevInsight Services and/or terminate the DevInsight Accounts of any Users who infringe any Intellectual Property Rights of others, whether or not there is any repeat infringement.
8. Indemnity
You agree to defend, indemnify and hold us harmless, our affiliates and each of our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the DevInsight Services, including any data or content transmitted or received by you; (b) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) your User Submissions or any content that is submitted via your DevInsight Accounts; (f) your willful misconduct; or (g) any other party’s access and use of the DevInsight Services with your unique username, password or other appropriate security code.
9. Third Party Advertisers
Your dealings with or participation in promotions of advertisers found on the DevInsight Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that we shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
10. No Warranty
THE DEVINSIGHT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE DEVINSIGHT SERVICES ARE AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEVINSIGHT SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE DEVINSIGHT SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, WE AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE DEVINSIGHT SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE DEVINSIGHT SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE DEVINSIGHT SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DEVINSIGHT SERVICES ARE DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE DEVINSIGHT SERVICES.
FURTHER, WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE DEVINSIGHT SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE, OUR AFFILIATES, AND EACH OF THEIR AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE DEVINSIGHT SERVICES. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE DEVINSIGHT SERVICES OR YOUR DEVINSIGHT ACCOUNTS OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND EACH OF THEIR AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE DEVINSIGHT SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE DEVINSIGHT SERVICES BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE DEVINSIGHT SERVICES; AND/OR (VII) USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL WE, OUR AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID US TO ACCESS THE DEVINSIGHT SERVICES OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
12.1 Governing Law. You agree that: (i) the DevInsight Services shall be deemed solely based in California; and (ii) the DevInsight Services shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
12.2 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with us, you agree to first contact us at legal@merico.dev and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and we agree otherwise. If you are using the DevInsight Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the DevInsight Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
12.3 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE DEVINSIGHT SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
13. General
13.1 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
13.2 Notification Procedures and Changes to these Terms. We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the DevInsight Services, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users; provided that, you may opt out of certain means of notification as described in these Terms. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the DevInsight Services after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) the DevInsight Services.
13.3 No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
13.4 Contact. Please contact us at legal@merico.dev with any questions regarding these Terms or the DevInsight Services.
13.5 Disclosures; California Residents. The provider of the DevInsight Services is Merico, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
13.6 Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with us in connection with the DevInsight Services, shall constitute the entire agreement between you and us concerning the DevInsight Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.