THIRD PARTY LINKS AND APPLICATIONS
The Company Services and Site may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom. Links to such websites and resources do not imply any endorsement by Company thereof or of the content, products or services thereon. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Third Party Services and Applications.
VII. TERMINATION AND MODIFICATION OF COMPANY SERVICES & AMENDMENT OF AGREEMENT.
Termination and Modification. Company reserves the right, of Termination of User. Without limiting other remedies, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate the Site and/or Company Services without advance notice. All modifications and additions to the Site and/or Company Services shall be governed by this Agreement, unless otherwise expressly stated by Company in writing. Company may also modify or amend this Agreement in its sole discretion without advance notice by posting the modifications or amended Agreement on the Site. All modified terms and conditions will be effective after they are posted on the Site (unless a longer notice period is required by applicable law). If any modified terms and conditions are not acceptable to You, your sole remedy is to cease using the Site and Company Services, and if applicable, cancel your Company account. By continuing to access or use the Site and/or Company Services after Company makes any such revision, You agree to be bound by the revised Agreement. This Agreement may not otherwise be modified or amended, except with the written agreement of both parties. Company may immediately terminate or suspend your access to the Site and/or Company Services and remove any material (including User Content) from the Site or our servers, in the event that You breach this Agreement. Notwithstanding the foregoing, we also reserve the right to terminate, limit or suspend your access to or use of the Site and/or Company Services at any time and for any reason or no reason.
Effect of Termination: After any termination by You or Company: You understand and acknowledge that we will have no further obligation to provide or allow access to the Company Services or the Site. Upon termination, all licenses and other rights granted to You by this Agreement will immediately cease. Company is not liable to You or any third party for termination of the Company Services or termination of your use of the Company Services or the Site. UPON ANY TERMINATION OR SUSPENSION, ANY INFORMATION (INCLUDING ANY USER CONTENT OR OTHER USER SUBMISSIONS) THAT YOU HAVE SUBMITTED, POSTED, UPLOADED OR OTHERWISE MADE AVAILABLE ON THE SITE AND/OR COMPANY SERVICES OR THAT WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, except as may be required by applicable law, Company will have no obligation to store or maintain any User Content or other information stored in our database related to your account or to forward any information to You or any third party. Any suspension, termination or cancellation will not affect your obligations to Company under this Agreement (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
INDEMNIFICATION; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
You agree to defend, indemnify, and hold Company, its officers, directors, employees, agents, publishers, collaborators and business partners harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees and costs, arising out of or in any way connected with (i) your access to or use of the Site, Company Services, Company Materials and User Content; (ii) your violation of the Agreement; (iii) your violation of any applicable laws, rules or regulations; (iv) any User Content posted, uploaded or provided by You; or (v) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right. o Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT IS AT YOUR SOLE RISK AND COMPANY SHALL NOT BE LIABLE FOR ANY INABILITY TO USE, OR ANY DELAYS, ERRORS OR OMISSIONS WITH RESPECT TO THE COMPANY SERVICES OR SITE. THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE COMPANY SERVICES, SITE, COMPANY MATERIALS AND USER CONTENT, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT (i) THE SITE OR COMPANY SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SITE AND COMPANY SERVICES WILL BE UNINTERRUPTED, AVAILABLE FOR USE AT ANY GIVEN TIME, TIMELY, SECURE, OR ERROR-FREE, (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR COMPANY SERVICES WILL BE ACCURATE, RELIABLE OR OTHERWISE MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN ANY SOFTWARE AVAILABLE THROUGH THE SITE OR COMPANY SERVICES WILL BE CORRECTED. o Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PUBLISHERS, COLLABORATORS, BUSINESS PARTNERS AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, COMPANY SERVICES, COMPANY MATERIALS, USER CONTENT, INFORMATION AND RESULTS AND OTHER CONTENT AND INFORMATION AVAILABLE THROUGH THE SITE OR COMPANY SERVICES, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL COMPANY’S (OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS) CUMULATIVE LIABILITY TO YOU EXCEED US $1,000.00, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You to the extent applicable law so requires.
ADDITIONAL USER REPRESENTATIONS
You acknowledge, represent and warrant that: (a) You own or have the authority to use the computer or device on which You are using or accessing the Company Services or Site; (b) your access and use of the Company Services will not violate any local, state or federal laws that apply to You; (c) You have read and fully understand the terms of this Agreement; (d) You have due authority and adequate legal capacity to enter into this Agreement; (f) You are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this TOU; and (g) You are over the age of 13, as the Company Services are not intended for children under 13.
The Agreement constitutes the entire agreement between You and Company and supersedes any prior agreements, understandings or arrangements between You and Company. You may not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by You without the appropriate prior written consent of Company will be null and void. Company may assign the Agreement or any rights hereunder without your consent. The Agreement and the relationship between You and Company shall be governed by the laws of the State of New South Wales, without regard to or application of its conflict of law provisions, rules and principles. You agree to submit to the personal jurisdiction of the courts located in New South Wales for the purpose of litigating all such claims. Further You agree that You must bring any claim arising out of or related to this License Agreement, or the relationship between You and us, within one (1) year after the claim arises, or the claim will be permanently barred. The failure or delay of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision to the full extent consistent with applicable law, and the other provisions of the Agreement remain in full force and effect. You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The section titles in the Agreement are for convenience only and have no legal or contractual effect. Company may provide notices to You with respect to this Agreement, the Site or the Company Services by posting such notices to the Site or by sending them to the e-mail address or other contact address You provide upon registration or setting up your account. Any such notices shall be deemed properly and timely given to You hereunder. You consent to the use of: (a) electronic means to complete this Agreement and to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Site and Company Services.
VIOLATIONS AND COMMENTS
Please report any violations of the Agreement or provide any comments or questions by emailing us at [email protected] or www.mercurien.com.au. You agree, however, that: (i) by submitting ideas regarding the Company Services or Site to Company or any of its employees or representatives, You automatically forfeit your right to any intellectual property rights in these ideas; and (ii) ideas regarding the Company Services or the Site submitted to Company or any of its employees or representatives (including any improvements or suggestions) automatically become the property of Company. You hereby assign and agree to assign all rights, title and interest You have in such comments and ideas to Company together with all intellectual property rights therein.