February 9, 2022
This website terms andconditions (“Terms”) is betweenNiche Interactive Media Inc. d/b/a Merkatta and its subsidiaries and affiliates(collectively, “Merkatta”, “we”, “our”, and “us”) and you and your employees, agents, contractors and any other entity on whose behalf you accept these terms (collectively, “you” and“your”) and governs your access to and/or use of our website at www.merkatta.com and any websites Merkatta has now or acquires in the future (the “Website”). If you do not agree with this Terms, you shall not use the Website. YOU ACCEPT THIS TERMS BY USING THE WEBSITE AND/OR EXERCISING OR PURPORTING TO EXERCISE ANY OF THE RIGHTS GRANTED TO YOU HEREUNDER. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ,UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS TERMS, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS OR AGREEMENTS THAT ARE OR MAY BE ESTABLISHED BY MERKATTA FROM TIME TO TIME ANDTHE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE. IF AN INDIVIDUAL IS AGREEING TO THIS TERMS ON BEHALF OF A LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THE INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF YOU DO NOT AGREE TO THIS TERMS AND PRIVACY NOTICE (AS DEFINED BELOW), YOU SHALL NOT USETHE WEBSITE.ARBITRATION NOTICE:EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW,YOU AGREE THAT DISPUTES BETWEEN YOU AND MERKATTA WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
1. OVERVIEW
Merkatta developed aWebsite that provides information related to third party products for sale in the flexible packaging industry, a job board listing open positions at third party flexible packaging companies, provides information about Merkatta and other offerings made available by Merkatta from time to time. You agree to only use the Website in accordance with this Terms. You agree to provide true, accurate and current information in connection with your access to and/or use of the Website. You may be asked to provide certain information to access certain portions of the Website or receive certain resources made available by Merkatta. From time to time, we may restrict access to all or part of the Website to users that register for an account or another subset of users as we may determine in our sole discretion. You will comply with all applicable laws, rules and/or regulations when accessing and/or using theWebsite. You are responsible for making arrangements necessary to use the Website, such as securing internet access.You are responsible for ensuring that all persons who access the Website through your internet connection are aware of this Terms and comply with thisTerms. You agree to notify Merkatta immediately of any unauthorized access toor use of the Website or any other breach of security. Please use caution when accessing the Website (and your account to the extent applicable) from a public or shared computer so that others are not able to view or record your information. In consideration for your use of the Website, if you are a third party flexible packaging company and (i) list a product on the Website and such listing results in a sale of such product, you agree to pay Merkatta the percentage indicated by Merkatta when such product is listed and (ii) list an open position on the Website, you agree to pay Merkatta the fee indicated by Merkatta when such position is posted on the Website. Such fees for (i) shall be due and payable to Merkatta within 10 days after the third party flexible packaging company receives payment from the purchaser of the products and for fees for (ii) shall be due and payable to Merkatta in advance prior to Merkatta posting just position. Any questions or disputes between you and your customer shall be handled by you and not Merkatta. If you are a consumer purchasing from the third party flexible packaging company listed on the Website or applying for a job listed on the Website, there is no fee for your use of the Website.
2. PRIVACY NOTICE
By accessing and/or using our Website, you agree to the Privacy Notice located here <insertlink to Privacy Notice> (“PrivacyNotice”) and consent to any personal information we may obtain about you being collected, stored and/or otherwise processed in accordance with the Privacy Notice and this Terms.
3. ELIGIBILITY
The Website is not intended for children under the age of thirteen (13) and you must be at least eighteen (18) years of age or older to access and/or use the Website. By accessing and/or using the Website, you represent and warrant that you are at least eighteen (18) years of age. No one under the age of eighteen (18) may use the Website, provide any information on the Website or to us. The ‘Children’s Online Privacy ProtectionAct’ requires that companies obtain verifiable parental consent before they knowingly collect personally identifiable information online from children under the age of thirteen (13). Merkatta does not knowingly collect or solicit information from children under the age of thirteen (13). If we learn we have collected personal information from a child under the age of thirteen (13), we will delete the information. If you think someone under the age of thirteen (13) has provided us with personal information, please contact us at info@merkatta.com.
4. COMMUNICATIONS FROM MERKATTA
When accessing and/or using the Website, you are communicating with us electronically, and consent to receive communications from us electronically. We will communicate with you by posting notices on the Website or by email if you provide your email address to us. You may continue to receive electronic communications from Merkatta (which may include without limitation promotional and advertising material and information about Merkatta) unless or until you elect to opt-out of receiving such communications and notify Merkatta at info@merkatta.com that you no longer desire to receive communications from us. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
5. UPDATES TO TERMS
Changes. Merkatta may update this Terms in its sole discretion, at anytime, in whole or in part. If Merkatta makes changes and/or modifications that impact your use of and/or access to the Website, we will post notice of the change and/or modification and change the ‘Updated’ date set forth above. You agree that your continued use of the Website following changes and/or modifications will constitute acceptance of such changes and/or modifications.We may also provide you with additional forms of notice as appropriate under the circumstances. If you do not agree to the changes, you shall not use the Website after the effective date of the changes and/or modifications. Please revisit this Terms regularly to ensure that you stay informed of any changes and/or modifications.
Additional Terms. Merkatta also reserves the right to post, from time to time, additional rules of usage that apply to specific parts of theWebsite, which may be posted in the relevant portion of the Website. Your continued use of the Website constitutes your agreement to such additional rules.
6. USE OF THE WEBSITE
Right to Use. The Website contains material which is owned by or licensed to Merkatta or to which Merkatta otherwise has permission to use. By using the Website and accepting thisTerms: (a) Merkatta grants you a limited, nonexclusive, non-transferable, non-sublicensable, revocable right to access and/or use the Website and information provided therein in accordance with the terms and conditions set forth herein and any additional terms, conditions and policies set forth by Merkatta; and (b) you agree not to reproduce, modify, distribute, create derivative works from, publicly display, publicly perform, republish, download, transmit, store, license, sell and/or re-sell any content, software, products and/or information obtained from and/or accessed through the Website without the express written permission of Merkatta. Notwithstanding the foregoing subsection (b), your computer may temporarily store copies of information required for you to access and view the information and you may store files that are automatically cached by your browser for display enhancement purposes. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of this Terms, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made.
Right to Deny Access and At Your Risk. Merkatta retains the right, in its sole and absolute discretion, to deny service and/or access to and/or use of the Website to anyone at any time and for any reason. While we use reasonable efforts to keep the Website accessible, the Website and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions to the Website and/or access to your account due to circumstances within Merkatta’s control (i.e.: routine maintenance) and outside of Merkatta’s control. You acknowledge and agree that the use of the Website is at your own risk, including without limitation the risk that you might be exposed to content that is offensive, indecent, inaccurate and/or objectionable. The Website may be modified, updated, suspended and/or discontinued at any time as determined by Merkatta in its sole and absolute discretion and without notice and/or liability and you acknowledge and agree that you are aware of this and any risks related thereto.
Prohibited Use and Conditions. Any access to and/or use of the Website and/or information provided by Merkatta other than as specifically authorized herein, without Merkatta’s prior written consent, is strictly prohibited. Without limiting the foregoing, you are responsible for your actions while accessing and/or using the Website, and you shall not use the Website in any manner that violates applicable law, contract, intellectual property or other third-party rights.You shall not:
● restrict or interfere with another user’s ability to use or enjoy the Website;
● overburden Merkatta’s infrastructure in any manner and/or otherwise damage and/or impair the functionality of the Website;
● gather email addresses through harvesting or automated means;
● post or transmit unauthorized or unsolicited advertising, promotional materials, and/or any other forms of solicitation to other users;
● attempt to access any portion of the Website that is not public and/or override any security measures that are in place;
● introduce any virus,‘Trojan Horse’, worm or other similarly harmful programming routines or automated systems, including, ‘robots’ or ‘botnets’, that flood the system with information at an unreasonable rate;
● impersonate any other person or entity, use a disguised identity and/or use any misleading and/or false information or statements for any purpose, including but not limited to, gaining access to another user’s account;
● provide content that is harmful, offensive, inaccurate, abusive, indecent, harassing, defamatory, obscene or otherwise inappropriate language including without limitation, bigotry, racism, discrimination, hatred or profanity;
● sell, resell, copy, reproduce, redistribute or display publicly the Website or content on theWebsite other than expressly permitted by Merkatta;
● modify content on theWebsite in any way, such as the removal of any proprietary rights notices or markings; and/or
● create a link to theWebsite from another website or document without prior written consent from Merkatta. Furthermore, Merkatta grants you the rights set forth herein, subject to the following conditions:
● you hereby represent and warrant to Merkatta that (a) all information provided to Merkatta by you is true, complete and accurate in all respects, and (b) you are authorized to submit such information to Merkatta;
● you shall not decompile, modify, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Website;
● you may not access all or any part of the Website in order to build a product or service which competes with the Website;
● you shall not copy or imitate part or all of the design, layout, or look-and-feel of the Website or individual sections of it, in any form or media;
● you shall not access any content on the Website via automated means including without limitation crawling, scraping and/or caching;
● you agree not to intentionally hold Merkatta and/or their employees and/or directors up to public scorn, ridicule or defamation;
● you will prevent unauthorized access to and/or use of the Website and notify Merkatta promptly of any such unauthorized access and/or use;
● you will not attempt to do any of the following: access data not intended for you, monitor theWebsite for data gathering purposes and/or interfere with the Website in relation to any user in any manner;
● you will not attack theWebsite via a denial-of-service attack or a distributed denial-of-service attack; and/or
● you shall not use the Website for any unlawful purpose and/or to violate any federal, state, international law, code of conduct and/or other guidelines which may be applicable to the Website provided.
Merkatta shall not be subject to any obligations of confidentiality regarding any information and/or materials submitted through the Website except as otherwise expressly specified in this Terms and/or the Privacy Notice and/or as set forth in any additional terms and conditions relating to specific products and/or services utilized by Merkatta in conjunction with the Website, and/or as otherwise required by law. The commercial use, reproduction, transmission or distribution of any information, software or other material available through the Website without the prior written consent of Merkatta is strictly prohibited. Merkatta may take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website. Merkatta has the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU INDEMNIFY AND HOLD HARMLESS MERKATTA AND ITS AFFILIATES, SUBSIDIARIES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY MERKATTA DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER MERKATTA OR LAW ENFORCEMENT AUTHORITIES.
7. OWNERSHIP
The Website and its entire contents, features and functionality are owned by Merkatta, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary right laws. Any redistribution or reproduction of part or all of the contents of the Website, including but not limited to text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, trade dress, logos, slogans, and/or proprietary technology currently used or which may be developed and/or used in the future in any form is prohibited. As between the parties, Merkatta and/or its licensors are the sole owner of: (i) the Website and information provided by Merkatta; (ii) any data or metadata created, aggregated, or generated by access to and/or use of the Website; and (iii) all of its source code, object code, software, content, copyrights, trademarks, patents, improvements, enhancements, derivatives, and any other intellectual property rights related to (i) and (ii) or included therein. Subject to the limited rights expressly granted hereunder, Merkatta and/or its third party licensors reserve all right, title and interest in and to the Website and related information, including without limitation all related worldwide intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. Any use of the Website not expressly permitted by this Terms is a breach of this Terms and may violate copyright, trademark, and other laws.
8. TRADEMARKS
Merkatta name, the Merkatta logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Merkatta or its affiliates or licensors. You must not use such marks without the prior written permission of Merkatta. All other names, logos, product and service names, designs, and slogans on thisWebsite are the trademarks of their respective owners.
9. YOUR CONTENT
During the course of your access to and/or use of the Website, you may enter, post and/or upload content and information (collectively, “Your Content”). You shall have exclusive title and ownership rights, including all intellectual property rights, throughout the world in all Your Content. You are solely responsible for ensuring Your Content and any and all communications regarding Your Content sent through or associated with the Website meet any and all applicable laws and regulatory and compliance guidelines. You hereby grant Merkatta and our affiliates and service providers (and each of their and our respective licensees, successors, and assigns) a worldwide, perpetual, non-exclusive, royalty-free, irrevocable, assignable, sub-licensable, transferable license to use reproduce, modify, perform, display, distribute, and otherwise disclose to third parties Your Content for any purpose. You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, and/or reliability. You represent and warrant that you own and/or have the necessary rights to use, authorize the use or and grant the rights set forth herein related to Your Content. You acknowledge and agree that we may disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy. Please carefully choose Your Content. You agree to indemnify, defend and hold Merkatta harmless for any disputes and/or claims concerning Your Content. Notwithstanding anything hereinto the contrary, Merkatta does not endorse any of Your Content in any way. You acknowledge and agree that You have no expectation of privacy with regard to any of Your Content. Merkatta may reject, refuse to post and/or delete YourContent, in its sole and absolute discretion, without liability, take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including without limitation if we believe that Your Content violates this Terms, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for Merkatta. Notwithstanding anything herein to the contrary, Merkatta is not obligated to take any action not required by law. If you become aware of misuse of the Website by any person, please contact us at info@merkatta.com.
10. RELIANCE ON INFORMATION POSTED
The information presented on or through the Website is made available solely for general information purposes. Merkatta does not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. Merkatta disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visit or to the Website, or by anyone who may be informed of any of its contents. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
11. FEEDBACK
If you choose to submit any questions, comments, ideas, suggestions, inventions, or other information (“Feedback”) to Merkatta, such Feedback is non-confidential and will become the sole property of Merkatta. Merkatta will be able to use any Feedback for any purpose including the developing, creating and/or marketing of products or services and you acknowledge Merkatta will give no credit or compensation to you and you have no rights to the same. Merkatta has no obligations to review any Feedback and may use and redistributeFeedback for any purpose without restriction in its sole and absolute discretion.
12. THIRD PARTY CONTENT, LINKED SITES, THIRD PARTY PRODUCTS
Third Party Content. Merkatta may provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or emailed or otherwise transmitted through the Website (“Third Party Content”). The third party from whom or which any such Third Party Content originates is solely responsible for it and Merkatta assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content.Accordingly, Merkatta does not control or endorse such Third Party Content and has no liability of any kind to you or any third party for any Third PartyContent. Statements of opinion and commentary in Third Party Content are thoseof the third party and, not necessarily those of Merkatta.
Linked Sites. As stipulated in this Terms, Merkatta does not exert any control over any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party. Merkatta may, from time to time, include hyperlinks (“Link(s)”) to other websites operated and maintained by third parties. Such Links are provided for reference and convenience only. Merkatta does not control and is not responsible for the contents, availability, or policies of any website or application accessed via a Link. Merkatta has made no attempt to verify any information contained in any such Links. Furthermore, Merkatta is not a party to or responsible for any access, use or transactions you may engage in with third parties, even if you learn of such parties from Merkatta. If you click onLinks, you do so at your own risk and you acknowledge and agree that Merkatta is not liable for any claims and/or damaged related thereto. We encourage you to be aware when leaving the Website and to read the terms and conditions and privacy notice of each Link that is visited. Merkatta reserves the right to terminate any Link at any time in its sole and absolute discretion. Merkatta disclaims all warranties, express and implied, as to the accuracy, validity, and legality and/or otherwise of any materials and/or information contained on such Links.
Third Party Products. There may be third-party products, services, software, and/or social networks (collectively “Third Party Products”) integrated into the Website. Please be aware that Merkatta is not affiliated with any Third Party Products or the companies or providers that own or control such Third Party Products. You agree to release Merkatta and such third party providers from any liability related to your use of any Third Party Products or any costs or charges related to suchThird Party Products. In order to use any Third Party Products, you may be required to agree to that company’s terms and conditions and/or privacy notice.You agree to comply with the foregoing when using the Website. Where you decide to use such Third Party Products, Merkatta is not a party to any contracts created between you and the provider of such Third Party Product. Merkatta is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with any Third Party Products.
13. TERMINATION
Merkatta reserves the right, in its sole and absolute discretion, to block you or terminate your access to the Website or any portion thereof at any time, without notice, without liability and for any reason including without limitation if Merkatta suspects, in its sole and absolute discretion, that you (by information, investigation, conviction, settlement or otherwise) have violated any of the terms and conditions set forth herein, the Privacy Notice, any other policies provided by Merkatta, or if you engage (or we suspect you have engaged) in an improper or fraudulent manner in connection with your access to and/or use of the Website. In the event you share the access granted hereunder with any person or entity, and/or misuse the Website by any means actionable under a federal, state, and/or local statute, code, regulation, law, and/or civil action, Merkatta will consider your access as having been acquired by fraud and/or misrepresentation and will terminate your access immediately, without liability. In such event, Merkatta retains the right to seek civil and/or criminal redress, the entire cost of which shall be borne solely by you. If we terminate your account or block you from our Website, you may not access and/or use our Website and you shall not subscribe under a new account unless formally invited by Merkatta. If you commit fraud and/or falsify information in connection with your use of the Website, you shall be liable for any and all damages that we suffer, and we may pursue legal action through relevant local and national law enforcement authorities and may notify your ‘Internet Service Provider’ of any fraudulent activity we associate with you and/or your access to and/or use of the Website. If you violate thisTerms we may block you from our Website and you are prohibited from using the Website. Upon termination, the provisions of this Terms are by their nature intended to survive termination(including without limitation any disclaimers, limitations of liability and indemnities) shall survive such termination.
14. ERRORS, INACCURACIES AND OMISSIONS
Occasionally there maybe information on the Website that contain typographical errors, inaccuracies, and/or omissions. We reserve the right to: (i) revoke any stated offer; (ii)correct any errors, inaccuracies, and/or omissions; and/or (iii) make changes to prices, content, promotion offers, service and/or product descriptions, specifications, and/or other information without obligation to issue any notice of such changes.
15. COPYRIGHT COMPLAINTS
We reserve the right to block access to and/or remove material that we believe in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties and remove and discontinue service to repeat offenders. Should you believe anything on the Website infringes on any copyright that you own or the copyright of others, you may notify the copyright agent (“Copyright Agent”) at Merkatta, Attn: Copyright Agent, 10N600 Highland Trail, Hampshire, IL 60140. We will respond to clear notices of copyright infringement when you provide the following information: (i) signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) description of the copyrighted work that is claimed to be infringed upon; (iii) description of where the material that is claimed to be infringed upon is located on the Website;(iv) information reasonably sufficient to permit contact (i.e.: an address, telephone number, and an e-mail address at which the complaining party may be contacted); (v) statement that the complaining party has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) statement by the complaining party, made under penalty of perjury, that complaining party is authorized to act on behalf of the intellectual property owner of the right that is allegedly infringed. The Copyright Agent will not remove content from the Website in response to phone or email notifications regarding allegedly infringing content, since a valid ‘DMCA’ notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by mail only and as further described by this Section. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Website. All other inquiries directed to the CopyrightAgent will not be responded to.
16. INDEMNIFICATION
You agree to indemnify, defend and hold Merkatta and its affiliates, partners, officers, directors, employees, representatives and agents, harmless from and against any and all claims, demands, proceedings, actions, costs, liabilities, losses, awards, fees, damages of any kind, expenses (including without limitation attorney’s fees) arising out of and/or in relation to: (i) your use, misuse and/or abuse of the Website; (ii) Your Content (including without limitation claims related to intellectual property infringement); (iii) any use of the Website in breach of this Terms and/or Privacy Notice; (iv) your violation of any law and/or the rights of a third party; and/or (v) fraud you commit and/or your intentional misconduct and/or negligence.
17. DISCLAIMER
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: THE WEBSITE AND INFORMATION GIVEN BY MERKATTA TO YOU ARE PROVIDED ON AN ‘AS IS’, ‘AS AVAILABLE’ BASIS, EXCEPT AS EXPRESSLY SET FORTH IN THIS TERMS. MERKATTA, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY PROVIDERS, SUPPLIERS,RETAILERS AND VENDORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, COMPLETENESS OR RELIABILITY, TITLE, NON INFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY OTHER WARRANTY, CONDITION, GUARANTEE AND/OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM. MERKATTA, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS,SUPPLIERS, AND VENDORS DO NOT REPRESENT AND/OR WARRANT THAT ACCESS TO THE WEBSITE AND/OR MERKATTA INFORMATION WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE AND/OR ERROR-FREE, AND/OR LOSS AND/OR SECURITY BREACH OF TRANSMITTED INFORMATION,AND/OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH ACCESS TO AND/OR USE OF THE WEBSITE AND/OR MERKATTA INFORMATION. MERKATTA ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT. YOU UNDERSTAND THAT MERKATTA CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT INFORMATION AVAILABLE FOR DOWNLOAD FROM THE INTERNET OR THE WEBSITE WILL BEFREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA. NO ADVICE AND/OR INFORMATION,WHETHER ORAL AND/OR WRITTEN, OBTAINED BY YOU FROM MERKATTA OR THROUGH YOUR ACCESS TO AND/OR USE OF THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS. TO THE FULLEST EXTENT PROVIDED BY LAW, MERKATTA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT,COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR INFORMATION OBTAINED THROUGH THE WEBSITE OR RELATED TO YOUR DOWNLOADING OF ANY INFORMATION POSTED ON THE WEBSITE, OR ON ANY WEBSITE LINKED TO IT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. LIMITATION OF LIABILITY
YOUR ACCESS TO AND/ORUSE OF THE WEBSITE IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PROVIDED BYLAW, IN NO EVENT WILL MERKATTA, ITS AFFILIATES ANDITS SUBSIDIARIES, IF ANY, AND ITS THIRD PARTY SERVICE PROVIDERS, PARTNERS,SUPPLIERS, RETAILERS, AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTIES FOR DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL,INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES ARISING OUT OF AND/OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE WEBSITE, YOUR INABILITY TO ACCESS THE WEBSITE AND/OR INFORMATION AND/OR LINKS ON THE WEBSITE, INCLUDING WITHOUT LIMITATION THOSE DAMAGES RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS,WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL AND/OR EQUITABLE THEORY, EVEN IF MERKATTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME JURISDICTIONS DONOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS OR LIMITATIONS HEREIN MAY NOT APPLY TO YOU IN SUCH LIMITED CIRCUMSTANCE. IN SUCHS TATES, MERKATTA’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BYLAW. YOU HEREBY AGREE TO RELEASE MERKATTA, ITS AFFILIATES AND SUBSIDIARIES, IF ANY, AND THIRD-PARTY SERVICE PROVIDERS, PARTNERS, SUPPLIERS,RETAILERS, AND VENDORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE OR MERKATTA INFORMATION. If you are a California resident, you here by waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction in which any other statute or common law principles of similar effect applies, you waive the application of such statute or common law with respect to the claims, demands and damages (actual and consequential)released under this Section.
19. DISPUTE RESOLUTION
Disputes. We want to address your concerns without filing a formal legal case. Before filing a claim against Merkatta, you agree to try to resolve the dispute informally by sending a letter to us describing your claim to: Merkatta, Attn: Legal Department, 10N600 Highland Trail, Hampshire, IL 60140.We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days after submission (or within a time period as otherwise agreed to by both parties), you and/or Merkatta agree to resolve any claims related to this Terms through final and binding arbitration. Any and all controversies, disputes, demand, counts, claims, or causes of action(collectively “Actions”) between you and Merkatta or Merkatta employees, directors, officers, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration, except as set forth under ‘Exceptions to Agreement to Arbitrate’ or for any claims that you or Merkatta may take claims to small claims court if the dispute qualifies for hearing by such a court. In all cases, any Actions must be commenced within one (1) year after the cause of action arises.
Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting Merkatta within thirty (30) days from the date that you first became subject to this arbitration provision. You must write us at Merkatta, Attn: Opt-Out Arbitration, 10N600 Highland Trail, Hampshire, IL 60140. If you opt out, neither you nor Merkatta can require the other to participate in an arbitration proceeding.
Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described above, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American ArbitrationAssociation, and shall be administered by the Judicial Arbitration andMediation Service (“JAMS”) under its rules. JAMS’ rules are available at https://www.jamsadr.com or by calling 1.800.352.5267. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be held in CookCounty, Illinois USA or any other location we agree to. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You and Merkatta must abide by these rules: (a) the arbitration shall be conducted on an individual basis and not in a class, consolidated or representative action and the arbitrator shall not award class-wide relief; (b)the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (c) each side pays his, her or its own attorneys’ fees and costs unless the claim(s) at issue permit the prevailing party to be paid its fees and litigation costs, and in such instance, the fees and costs awarded shall be determined by the applicable law. With the exception of subpart (a) in the paragraph above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, then the balance of this arbitration provision shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, subpart (a) in the paragraph above is found invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party.
Exceptions to Agreement to Arbitrate. Either you and/or Merkatta may assert claims, if they qualify, in small claims court in Cook County, Illinois. Merkatta may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the Website, breach of Merkatta’s confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described herein.
Waiver. There is no judge or jury in arbitration and arbitration procedures are simpler and more limited than rules applicable in court. YOU ACKNOWLEDGE, AGREE AND UNDERSTAND THAT, APART FROM THE NARROW EXCEPTIONS ABOVE, MERKATTA AND YOU ARE EACH WAIVING ITS RESPECTIVE RIGHTS TO SUE IN COURT,INCLUDING RIGHTS TO RECEIVE A TRIAL BY JURY OR 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.
20. GEOGRAPHIC RESTRICTIONS
Merkatta headquarters in located in the State of Illinois in the United States. Merkatta provides thisWebsite for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons orin certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
21. CALIFORNIA USERS
Pursuant to CaliforniaCivil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Merkatta must be sent to our agent for notice to info@merkatta.com. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916)445-1254 or (800) 952-5210.
22. GOVERNING LAW & VENUE
This Terms shall be governed by, construed and enforced in accordance with the substantive laws of the State of Illinois, without regard to its conflict of laws principles. The parties further agree that any cause of action arising under this Terms shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
23. MISCELLANEOUS
You may have other agreements with Merkatta. Such agreements are separate and in addition to thisTerms, unless otherwise agreed to by the parties in writing. You may not assign your rights and/or obligations under this Terms to any other party without our prior written consent. We may assign our rights and/or obligations under this Terms to any other party at our discretion. If any provision and/or term of this Terms shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term and/or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them. If an applicable law is in conflict with any part of this Terms, this Terms will be deemed modified to conform to the law and the other provisions will not be affected by any such modification. No waiver by either you and/or Merkatta of any breach and/or default and/or failure to exercise any right allowed under this Terms isa waiver of any preceding and/or subsequent breach and/or default and/or a waiver and/or forfeiture of any similar and/or future rights under this Terms.This Terms along with the Privacy Notice constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter.
24. CONTACT US
If you would like to request additional information regarding thisTerms or if you have feedback about our Website, please contact us at info@merkatta.com.
