Terms of Service

Welcome and thank you for your interest in Mercator Intelligence, Inc. ("Mercator", "we", "us" or "our"). This Terms of Service Agreement ("Terms of Service", together with any applicable Supplemental Terms (as defined in Section 1.3 (Supplemental Terms)), the "Agreement") describes the terms and conditions that apply to your use of (i) the website located at www.mercatorintelligence.com and its subdomains and any of Mercator's other websites on which a link to these Terms of Service appears (collectively, the "Website"), (ii) the software-as-a-service platform and related applications that we offer subject to these Terms of Service (each, an "Platform"), and (iii) the services, content, and other resources available on or enabled via our Website or any Platform, as further described in Section 1 (collectively, with our Platform and Website, the "Service").

Some portions of our Service are designed for users who are affiliated with our enterprise customers (each enterprise customer, a "Customer" and such users, "Customer Affiliated Users"). Customer Affiliated Users use the Service at the invitation of a Customer that has executed a separate enterprise services agreement with Mercator ("Enterprise Agreement"). Pursuant to such Enterprise Agreement, Mercator allows its Customers to designate certain Customer Affiliated Users as eligible to access the Service. If you are a Customer Affiliated User who accesses and uses the Service because you were directed or invited to do so by a Customer, then your access to and use of the Service may be subject to certain terms and conditions in the relevant Enterprise Agreement. If you use the Service in connection with your relationship with a Customer, then if you have questions about using any Service you should first direct them to such Customer.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, BROWSING THE WEBSITE, OR DOWNLOADING THE PLATFORM, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MERCATOR, (3) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES OR CANADA, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION; AND (4) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICE ON BEHALF OF AN ENTITY, ON BEHALF OF THE ENTITY IDENTIFIED IN THE ACCOUNT REGISTRATION PROCESS. IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY (E.G. A CUSTOMER), ALL REFERENCES TO "YOU" OR "YOUR" IN THIS AGREEMENT WILL ALSO BE DEEMED TO REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE.

The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and Mercator, your right to access and use the Service, in whole or in part, is subject to this Agreement.

1.1 Overview. The Service makes available an artificial intelligence powered assistant designed to assist planners and merchandisers with supply chain challenges.

1.2 Platform License. Subject to your compliance with this Agreement, Mercator grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the features and functionality of the Platform for your personal or internal business purposes on behalf of the Customer for whom you are a Customer Affiliated User.

1.3 Supplemental Terms. Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms ("Supplemental Terms"). Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Service are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service.

1.4 Updates. You understand that the Service is evolving. You acknowledge and agree that Mercator may update the Service with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Service. Any future release, update or other addition to the Service shall be subject to this Agreement.

1.5 Our Privacy Policy. Our Privacy Policy applies to your use of the Services. You may contact us with privacy questions as set out in our Privacy Policy. To the extent permitted by applicable law, by using the Services you consent to the collection, use, disclosure and other handling of your personal information as set out in our Privacy Policy.

2.1 Registering Your Account. In order to access certain features of the Service, you may be required to register an account on the Service ("Account") and fill out a profile.

2.2 Registration Data. In registering an Account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form or your Account profile (the "Registration Data"), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.

2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Mercator. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Service by minors. You may not share your Account or password with anyone, and you agree to notify Mercator immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete or not current, or Mercator has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete or not current, Mercator has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account at any given time. Mercator reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party's rights. You agree not to create an Account or use the Service if you have been previously removed by Mercator, or if you have been previously banned from any of the Service.

2.4 Necessary Equipment and Software. You must provide all equipment and other software necessary to access or use the Service. You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing the Service.

3.1 Types of Content. You acknowledge that any information (including, without limitation, supply chain information, forecasts, order and purchasing history, pricing), data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service (collectively, "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not Mercator, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available ("Make Available") through the Service ("Your Content"), including with respect to such Content's quality, accuracy, and completeness, and that other users of the Service, and not Mercator, are similarly responsible for all Content that they Make Available through the Service ("User Content"). Any of Your Content that includes personal information is also subject to our Privacy Policy, and in the event of any contradiction between this Agreement and our Privacy Policy with respect to personal information, our Privacy Policy will prevail.

3.2 Sensitive Content. You acknowledge that the Service (a) is not intended for the processing of individually identifiable health information or protected health information as those terms are defined by the Health Insurance Portability and Accountability Act and its implementing regulations and (b) is not intended to process any personal information of individuals under 18 or the applicable age of digital consent. Accordingly, you agree, represent, and warrant that you will not Make Available any such Content through the Service.

3.3 Usage Data. Mercator shall have the right to (a) collect data regarding the statistical usage e.g., response times and error logs, or data related to billing, performance, and usage metrics ("Usage Data") with respect to your use of the Platform and Service; (b) de-identify such Usage Data with respect to your use of the Platform and Service; and (c) use such de-identified Usage Data, including on an aggregated basis with other similar Usage Data, for purposes of operating, providing, and improving the Platform and Service, including to train Mercator's Models and to market and promote the Platform and Service (provided that no such marketing or promotional use will enable identification of you or Customer). All Usage Data, including any de-identified or aggregated versions of such Usage Data, and all data derived from such Usage Data, will be owned and retained by Mercator.

3.4 Storage. Unless expressly agreed to by Mercator in writing elsewhere, Mercator has no obligation to store any of Your Content. Mercator has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. You agree that Mercator retains the right to create reasonable limits on Mercator's use and storage of Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Mercator in its sole discretion.

4.1 The Service. Except with respect to Your Content, you agree that Mercator and its suppliers or licensors own all rights, title and interest in, to and associated with the Service (including but not limited to, any Content delivered by Mercator or created through the Service) as well as any artificial intelligence algorithms or machine learning models that power or are made available pursuant to the Service ("Models"). You shall not remove, alter or obscure any copyright, trademark, service mark or other intellectual property or proprietary rights notices incorporated in or accompanying any Service.

4.2 Trademarks. MERCATOR and all related stylizations, graphics, logos, service marks and trade names used on or with the Service are the trademarks of Mercator and may not be used without permission in connection with your, or any third party's, products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.

4.3 Your Content. Mercator does not claim ownership of Your Content. However, when you Make Available any Content on or to the Service, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to Your Content). Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting.

4.4 License to Your Content. You grant Mercator a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (and you will waive any and all moral rights you have in our favor) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display, and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of (a) operating, improving, and providing the Service to you and to our other users, including without limitation, to train Mercator's Models; (b) for security purposes; and (c) complying with our legal obligations.

4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Mercator ("Feedback") is at your own risk and that Mercator has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Mercator a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and/or Mercator's business.

As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (iii) use any metatags or other "hidden text" using Mercator's name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to "scrape" or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of Mercator; (viii) interfere with or attempts to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Service; or (ix) take any action or Make Available any Content on or through the Service that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Mercator's prior written consent. Any unauthorized use of the Service terminates the licenses granted by Mercator pursuant to this Agreement.

Mercator may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.

Without limiting the foregoing, Mercator reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Mercator; (c) except to the extent prohibited by applicable law, 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; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if Mercator otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement.

7.1 Third-Party Services and AI Tools. Mercator makes available certain artificial intelligence tools in connection with Customer's use of the Platform (collectively, the "AI Tools"). Except where expressly specified otherwise in this Agreement, the AI Tools constitute a "Service" for the purposes of the Agreement and the Agreement shall apply in full to your use of the AI Tools. The AI Tools leverage third party large language models and artificial intelligence algorithms and platforms ("Third-Party Services") to generate suggested text, information, results, images, and other materials, including without limitation, simulations, purchase order recommendations, shipping and logistics recommendations, supplier communications, and other supply chain recommendations (collectively, the "Output") in response to Your Content that you submit, upload, or otherwise input to such AI Tool ("Inputs"). Mercator does not make any representations or guarantees with respect to Third-Party Services or any Output provided in connection therewith, including any guarantee that any such Output will result in any cost-savings. Such Third-Party Services are not under the control of Mercator and do not form part of the Platform. Mercator is not responsible for any Third-Party Services or Output generated thereby and you use such Third-Party Services and Output at your own risk. As between the parties, each of the Inputs and Output are considered "Your Content" for the purposes of the Agreement, provided that: (i) such Inputs may be provided to Third-Party Services in order for you to access the AI Tools, and such Third-Party Services may not be required to maintain the confidentiality of any Inputs or Output; and (ii) such Third-Party Services may retain certain rights to use or disclose the Inputs and Output, including to further train their algorithmic models, in the terms and conditions or policies governing the Third-Party Services ("Third-Party Terms"). Notwithstanding the foregoing, depending on your relationship and any contracts or agreements with the Customer with whom you are affiliated, the Customer may own the Output generated by you through the Service.

7.2 AI Tools. You understand and agree that (a) the Service utilizes AI Tools, which may result in inaccurate or incomplete results given the probabilistic nature of machine learning, and (b) Your Content may be transmitted to the third-party providers of such AI Tools as part of the Service. Without limiting the disclaimers in Section 1.1 and 10, all Content made available through the Service are provided for informational purposes only, and you are responsible for evaluating the accuracy and suitability of such Content as appropriate for your use case. You agree that Mercator shall have no responsibility or liability arising from the provision of inaccurate or inappropriate Content or any decisions made in reliance on such Content and that such decisions are made at your own risk.

7.3 Responsible Use of AI Tools. You shall comply with all obligations and commitments in the Agreement with respect to Your Content in connection with your use of the AI Tools. You are solely responsible for the Inputs, and your use of the Outputs thereof. Without limiting the disclaimers set forth in Section 10, you are responsible for reviewing any Output prior to your use and exercising your own judgement as to its suitability for use. Without limiting the foregoing and your representations and warranties under the Agreement, you shall not use any Inputs or Output that: (a) infringes or misappropriates any third party's intellectual property rights or other proprietary rights; (b) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Platform; or (d) violates the Third-Party Terms. Mercator reserves the right to suspend or terminate your access to the AI Tools or the Platform as a whole for any failure by you to comply with this Section. You acknowledge and agree that, notwithstanding the automated suggestions provided by the AI Tools, you and the applicable Customer remain solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.

If you are a Customer Affiliated User, your access to and use of the Service is contingent on the applicable Customer's payment of the fees required under the Enterprise Agreement. Mercator has the right to suspend your Account and your access to the Service in the event of any delay by Customer in making any payments owed to Mercator.

You shall indemnify and hold Mercator, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "Mercator Party" and collectively, the "Mercator Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (i) Your Content; (ii) your use of, or inability to use, the Service, including with respect to any interactions with other users; (iii) your violation of this Agreement; (iv) your violation of any rights of another party, including any user; or (v) your violation of any applicable laws, rules or regulations. Mercator reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mercator in asserting any available defenses. This provision does not require you to indemnify any of the Mercator Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.

10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE MERCATOR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE.

(a) THE MERCATOR PARTIES MAKE NO WARRANTY, REPRESENTATION, GUARANTEE, OR CONDITION THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); (2) THE SERVICE OR ANY OUTPUT WILL RESULT IN A CERTAIN AMOUNT OF REVENUE OR COST-SAVINGS, OR ANY REVENUE OR COST-SAVINGS; (3) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (4) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE, COMPLETE, OR RELIABLE.

(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

(c) FROM TIME TO TIME, MERCATOR MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MERCATOR'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

10.2 No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES, INCLUDING OTHER USERS. YOU ACKNOWLEDGE AND AGREE THAT THE MERCATOR PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE MERCATOR PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF THIRD-PARTY SERVICES AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. MERCATOR MAKES NO WARRANTY THAT THE GOODS OR SERVICE PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.

10.3 Release. You acknowledge and agree that you are solely responsible for your interactions with other users on the Service, and in the event that you have a dispute with any other user, you release the Mercator parties from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE MERCATOR PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ANY MERCATOR PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.

11.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MERCATOR PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) $100; OR (ii) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.

11.3 User Content. MERCATOR ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

11.4 Exclusion of Damages. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.

11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MERCATOR AND YOU.

12.1 Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.

12.2 Termination of Service by Mercator. If you have, or Mercator suspects you have, materially breached any provision of this Agreement, or if Mercator is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), Mercator has the right to, immediately and without notice, suspend or terminate any Service provided to you. Mercator reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations for cause are made in Mercator's sole discretion and that Mercator shall not be liable to you or any third party for any termination of your Account.

12.3 Termination by You. If you want to terminate this Agreement, you may do so by closing your Account for the Service under your Account settings.

12.4 Termination of Service of an Affiliated Enterprise Customer. If you are a Customer Affiliated User, the termination of the applicable Enterprise Agreement may result in the termination of your Account or any Service provided to you without notice.

12.5 Effect of Termination. Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use or access to the Service. Mercator will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

12.6 No Subsequent Registration. If this Agreement is terminated for cause by Mercator or if your Account or ability to access the Service is discontinued by Mercator due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different member name or otherwise.

Please read this section (the "Arbitration Agreement") carefully. It is part of your contract with Mercator and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

13.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Mercator agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a "Dispute") will be resolved by binding arbitration, rather than in court, except that: (i) you and Mercator may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Mercator may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, "Dispute" will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

13.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Mercator. If that occurs, Mercator is committed to working with you to reach a reasonable resolution. You and Mercator agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome ("Informal Dispute Resolution"). You and Mercator therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Mercator that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@mercatorintelligence.com or regular mail to our offices located at 2021 Fillmore Street, PMB2306, San Francisco CA, 94115. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party's Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

13.3 Waiver of Jury Trial. YOU AND MERCATOR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Mercator are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

13.4 Waiver of Class and Other Non-Individualized Relief. YOU AND MERCATOR AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 13.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 13.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Mercator agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in San Francisco County in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Mercator from participating in a class-wide settlement of claims.

13.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Mercator agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association ("AAA"), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Mercator otherwise agree, or the Batch Arbitration process discussed in Section 13.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

You and Mercator agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

13.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 13.9 is triggered, the AAA will appoint the arbitrator for each batch.

13.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 13.4, including any claim that all or part of Section 13.4 is unenforceable, illegal, void or voidable, or that such Section 13.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 13.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 13.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

13.8 Attorneys' Fees and Costs. The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Mercator need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys' fees and costs.

13.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Mercator agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Mercator by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration").

All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by Mercator.

You and Mercator agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

13.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 2021 Fillmore Street, PMB2306, San Francisco CA, 94115, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

13.11 Invalidity, Expiration. Except as provided in Section 13.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Mercator as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

13.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Mercator makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Mercator at 2021 Fillmore Street, PMB2306, San Francisco CA, 94115, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Mercator will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.

14.1 Electronic Communications. The communications between you and Mercator may take place via electronic means, whether you visit the Service or send Mercator emails, or whether Mercator posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from Mercator in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mercator electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

14.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Mercator's prior written consent. Mercator may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

14.3 Force Majeure. Mercator shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: legal@mercatorintelligence.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

14.5 American Consumer Complaints. In accordance with California Civil Code §1789.3, if you are an American consumer, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service 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.

14.6 Agreement Updates. When changes are made, Mercator will make a new copy of this Terms of Service and/or Supplemental Terms, as applicable, available on the Service, and we will also update the "Last Updated" date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Mercator may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.

14.7 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Mercator agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in San Francisco County, California.

14.8 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.

14.9 Notice. Where Mercator requires that you provide an email address, you are responsible for providing Mercator with a valid and current email address. In the event that the email address you provide to Mercator is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Mercator's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Mercator at the following address: 2021 Fillmore Street, PMB2306, San Francisco CA, 94115. Such notice shall be deemed given when received by Mercator by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

14.10 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.11 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.

14.12 Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Service, you represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Mercator are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Mercator products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

14.13 Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.