3. Restrictions on Rights to Use. You agree that you will not (and you agree not to allow others to):
- modify, adapt, translate, or reverse engineer any portion of the Mercator Site;
- remove any copyright, trademark or other proprietary rights notices contained in or on the Mercator Site or in or on any content or other material obtained via the Mercator Site;
- use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Mercator Site;
- access, retrieve or index any portion of the Mercator Site for purposes of constructing or populating a searchable database of business reviews;
- create or transmit unwanted electronic communications such as “spam” to other users or members of the Mercator Site or otherwise interfere with other user’s or member’s enjoyment of the Mercator Site;
- transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature;
- use the Mercator Sites to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including that are deemed threatening or obscene;
- use any device, software or routine that interferes with the proper working of the Mercator Site, or otherwise attempt to interfere with the proper working of the Mercator Site;
- take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- use the Mercator Site, intentionally or unintentionally, to violate any applicable local, state, national or international law; or
- collect or store personal data about other users in connection with the prohibited activities described in this section.
4. Content Posted By You on the Mercator Site.
- You are solely responsible for any content and material that you submit, publish or display on the Mercator Site or transmit to other website users (“Posted Content”).
- You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. You may not submit any Posted Content or material that infringes, misappropriates or violates the intellectual property, publicity, privacy or other rights of any party.
- You may not provide any Posted Content that falsely express or imply that such Posted Content or material is sponsored or endorsed by Mercator.
- You may not provide any Posted Content that is unlawful or that promotes or encourages illegal activity.
- You agree that you will only provide Posted Content that you believe to be true and you will not purposely provide false or misleading information.
- By posting Posted Content on the Mercator Site, you agree to and hereby do grant, and you represent and warrant that you have the right to grant, to Mercator, its contractors, and the users of the Mercator Site an irrevocable, perpetual, royalty-free, fully sublicensable, fully paid up, worldwide license to use, copy, publicly perform, digitally perform, publicly display, and distribute such Posted Content and to prepare derivative works of, or incorporate into other works, such Posted Content.
- The following is a partial list of the kind of Posted Content and communications that are illegal or prohibited on/through the Mercator Site. Mercator reserves the right (but is not obligated) to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication from the Mercator Site and terminating the membership of such violators or blocking your use of the Mercator Site. You may not post content that:
- is false or intentionally misleading;
- is patently offensive to users of the Mercator Site, such as content or messages that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- involves the transmission of unsolicited mass mailing or “spamming”;
- violates the intellectual property or other rights of any person;
- promotes illegal activities or conduct that is abusive;
- is threatening, obscene, defamatory or libelous; or
- is pornographic or sexually explicit in nature.
5. Copyright Dispute Policy. Mercator has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (DMCA). The address of Mercator’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is provided at the bottom of this section.
- Mercator Policy. It is Mercator’s policy to (a) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (b) remove and discontinue service to repeat offenders.
- Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Mercator Site infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below (“Proper Bona Fide Infringement Notification”):
- a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- identification of works or materials being infringed;
- identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Mercator is capable of finding and verifying its existence;
- contact information about the notifier including address, telephone number and, if available, email address;
- a statement that the notifier has a good faith belief that the material is not authorized by the copyright owner, its agent, or the law; and
- a statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
- Upon Receipt of a Bona Fide Infringement Notification. Once Proper Bona Fide Infringement Notification is received by the Designated Agent, it is Mercator’s policy:
- to remove or disable access to the infringing material;
- to notify the content provider, member or user that it has removed or disabled access to the material; and
- for repeat offenders, to also terminate such content provider’s access to the site.
- Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider, member or user believes that the material that was removed or to which access was disabled is either not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated Agent listed below:
- a physical or electronic signature of the content provider, member or user;
- identification of the material that has been removed or to which access to has been disabled and the location at which the material appeared before it was removed or disabled;
- a statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- the content provider’s, member’s or user’s name, address, telephone number, and, if available, email address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Mercator is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
- Removal. If a counter-notice is received by the Designated Agent, Mercator may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored after receipt of the counter-notice, at Mercator’s discretion.
- Address for Designated Agent. Please contact Mercator’s Designated Agent to Receive Notification of Claimed Infringement at the following address:
Mercator Advisory Group, Inc.
201 Boston Post Road West, Suite 301
Marlborough, MA 01752
Email to: email@example.com
8. Ownership. The Mercator Site (including, but not limited to, text, photographs, graphics, video and audio content) is protected by copyright as a collective work or compilation under the copyright laws of the United States and other countries. All individual articles, content and other elements comprising the Mercator Site are also copyrighted works. Except for the content submitted by others, the Mercator Site and all aspects thereof, including all copyrights, trademarks, and other intellectual property or proprietary rights therein, is owned by Mercator or its licensors. You acknowledge that the Mercator Site and any underlying technology or software used in connection with the Mercator Site contain Mercator’s proprietary information. Except as expressly and unambiguously provided herein, Mercator and its suppliers do not grant you any express or implied rights, and all rights in the Mercator Site not expressly granted by Mercator to you are retained by Mercator.
9. Disclaimer. THE MERCATOR SITE IS PROVIDED BY MERCATOR ON AN “AS IS” BASIS. MERCATOR AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO THE OPERATION OF THE MERCATOR SITE OR THE INFORMATION, CONTENT OR MATERIALS INCLUDED ON THE MERCATOR SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MERCATOR AND ITS LICENSORS AND AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MERCATOR AND ITS LICENSORS AND AFFILIATES FURTHER DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE MERCATOR SITE. MERCATOR IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE MERCATOR SITE. Mercator does not warrant or covenant that the Mercator Site will be available at any time or from any particular location, will be secure or error-free, that defects will be corrected, or that the Mercator Site is free of viruses or other potentially harmful components. Any material or content downloaded or otherwise obtained through the use of the Mercator Site is accessed at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM MERCATOR OR THROUGH OR FROM THE MERCATOR SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
10. Limitation on Liability. Mercator will not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Mercator’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). WITHOUT LIMITING THE FOREGOING, MERCATOR AND ITS AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MERCATOR’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO MERCATOR FOR THE MERCATOR SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (ii) ONE HUNDRED DOLLARS $100. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “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.”