Introduction and Agreement
These Terms of Use (the “Agreement”) constitute a legally binding agreement by and between You (our Customer) and The Company (Mercuri) concerning Your use of the Mercuri.ca website (the “Website”) and the conferencing services offered by Mercuri in association with the Website (the “Services”). By using the Website and Services, You represent and warrant that You have read and understood, and agree to be bound by, this Agreement. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND REFRAIN FROM USING THE SERVICES IN ANY WAY.
The Service we (MERCURI ) supply to you (our Customer) is the ability to have simultaneous telephone calls with other Participants via the telephone network, WebRTC, video and other communications technology.
The Service will be subject to available capacity and we do not guarantee that the number of connections required by you will always be available at any given time.
In providing the Service, we promise to use the reasonable skill and care of a competent Service provider.
Definitions
“Call Charge” means the price charged to the caller by the network operator.
“Contract” means, in order of precedence, these conditions and the Registration Process.
“Participant” means you and anyone you allow to use the Service.
“Registration Process” means the registration process completed by you.
“Service” means all or part of the Service explained in Section 1 that we agree to provide to You under this Contract.
“We” and “MERCURI ” and Mercuri Conferencing and “Us” means Danis Communications Inc. and its affiliated Companies.
“You” means the customer we make this Contract with and who is named in the Registration Process and/or your company and/or your Participants as the context requires.
Eligibility, Term, and License to Use
BY USING THE WEBSITE AND THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. If You are using the Website or Services on behalf of a company, You further represent and warrant that You are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Subject to Your compliance with the terms and conditions of this Agreement, Mercuri grants You a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Website and Services. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of Mercuri or any other party. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
For use of the Mercuri Service, this contract begins when you have been issued with a PIN code or when you use the Service for the first time, whichever is first or when you have successfully completed the registration process.
By using the Website and Services, You consent to the collection and use of certain information about You, as set forth in Mercuri’s Privacy Policy (the “Privacy Policy”), including the Registration Process. By using the Website and Services, You represent and warrant that You have read and understood, and agree to the same. IF YOU DO NOT UNDERSTAND OR DO NOT AGREE TO THE SAME, YOU MUST IMMEDIATELY LEAVE THE WEBSITE. In the event of any conflict between the Privacy Policy and this Agreement, the terms of this Agreement shall control.
Registration Process
In connection with Your use of the Website and Services, You will be required to complete a registration form. You represent and warrant that all information You provide on any registration form or otherwise in connection with Your use of the Website or Services will be complete and accurate, and that You will update that information as necessary to maintain its completeness and accuracy.
You will also be asked to provide, or may be given, a user name and password in connection with Your use of the Website and Services. You are entirely responsible for maintaining the confidentiality of Your password. You may not use the account or password of any other Website or Services user. You agree to notify Mercuri immediately of any unauthorized use of Your account or password. Mercuri shall not be liable for any loss that You incur as a result of someone else using Your account or password, regardless of whether with or without Your knowledge. You may be held liable for any losses incurred by Mercuri, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of Your account or password.
Service Availability
The Service is available 24 hours a day 7 Days per week, except:
in the event of scheduled planned maintenance, in which case the Service may not be available;
in the event of unplanned or emergency maintenance, we may have to carry-out work that may affect the Service, in which case calls may be truncated or may not connect. If we have to interrupt the Service, we will make every effort to restore it within a reasonable time; or
in the event of circumstances beyond our reasonable control.
Maintenance schedules and Service status reports will be provided upon request.
We cannot guarantee that the Service will never be faulty, but we will make every effort to correct reported faults as soon as we reasonably can.
Occasionally we may have to:
change the code or phone number or the technical specification of the Service for operational reasons; or
give you instructions that we believe are necessary for security, health or safety, or for the quality of the Service that we supply to you or to our other customers and you agree to observe them; but before doing so, we will give you as much notice as we can.
Charges for the Service
You will be charged for the use of the Service.
Each user of the Service, including you, will be charged the prevailing Call Charges for calls to the dial-in number applicable to the Service that you use.
You should check with your telephone network operator to confirm the Call Charge rate for the dial-in number applicable to the Service that you use.
There are no cancellation, set-up or booking fees or charges. There are no account maintenance or minimum usage fees.
Fees associated with the Conferencing Services will be billed to You at completion of the current month and are due and payable at that time. All applicable taxes are not included and will be billed separately in addition to noted charges.
Mercuri may discontinue or suspend Services for non-payment at any time without incurring liability.
In the case of flat rate billing, we do not refund or credit partially used billing periods in the event of cancellation of subscription based or other services; cancellations are applicable only for the next applicable billing period. No refunds or credit are provided for any chargeable services used by You, such as toll-free usage, toll, or international dial-in numbers. Any other refunds or credits are at the sole discretion of Mercuri; in the event of any refund determined by Mercuri, You will typically receive the same within 3-5 business days.
Your Responsibilities
You and the Participants must use tone-dialing telephones and WebRTC (or other computer technologies provided as outlined) to dial-in to the Service.
You are responsible for the security and proper use of the PIN Code once you have received it from us. You have no right to sell or to agree to transfer the PIN Code provided to you for use with the Service and you must not try to do so.
When you register you must provide a current valid email address. This email address will be used by us to communicate Service messages and for marketing purposes. By establishing an account with Mercuri, and except as otherwise required by law, You consent to receive periodic email communications from Mercuri concerning our products and services, including without limitation Mercuri’s periodic newsletter, occasional service update bulletins, and summary emails regarding scheduled conferences before and after they are complete. Your information will not be used by any company other than MERCURI . To be removed from the mailing list your PIN must be removed from the system and you will no longer be able to use the Service.
If you or your Participants use a mobile telephone to access the Service, we may send occasional SMS messages, you can opt out of these messages by contacting us at the address or telephone number shown in Section 13.
Nobody must advertise any phone number or PIN Code for the Service in or on a phone without our consent, and you must make sure that this does not happen. The action that we can take if this happens is explained in Section 11.
You must access the Service using the phone numbers issued to You.
Privacy laws may require that everyone on a recorded conference call agrees to being recorded. Please be aware that everyone entering a conference that is being recorded will hear a message stating the conference is being recorded.
Misuse and Prohibited Uses
Mercuri imposes certain restrictions on Your use of the Website. You represent and warrant that You and Your Participants will not:
make offensive, indecent, menacing, nuisance or hoax calls;
use any Service fraudulently or in connection with a criminal offence, and You must take all reasonable precautions to ensure that this does not happen;
violate or attempt to violate any security features of the Website;
access content or data not intended for You, or log onto a server or account that You are not authorized to access;
attempt to probe, scan, or test the vulnerability of the Website, or any associated system or network, or breach any security or authentication measures without proper authorization;
interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Website or infrastructure that provides the Services.
act in a way contrary to any Acceptable Use Policy set forth by MERCURI from time to time, which policy is available on request.
the action we can take if this you misuse the Service is explained in Section 11. If a claim is made against us because the Service is misused and you did not take all reasonable precautions to prevent that misuse, or did not notify us of that misuse at the first reasonable opportunity, you must reimburse us in respect of any sums we are obliged to pay and any other reasonable costs that we have incurred.
Voice Calls may be recorded and the recording used for the sole purpose of investigating abuse of the system.
Any violation of this section may subject You to civil and/or criminal liability, and Mercuri reserves the right to cooperate with law enforcement in any investigation of any violation of this or any other section of this Agreement.
Disclaimers and Limitation of Liability
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD MERCURI OR ITS LICENSORS OR SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE WEBSITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
We do not recommend use of the Service where the risk of non-connection or loss of connection carries a material risk. Accordingly you may only use the Service if you accept that all such risk is yours and you should insure accordingly.
THE LIABILITY OF MERCURI AND ITS LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MERCURI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO MERCURI OR ITS LICENSORS AND SUPPLIERS) ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MERCURI AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATION.
To the extent allowed by law we disclaim all liability for the use of the Service, in particular:
I. any liability we have of any sort (including any liability because of our negligence) is limited to the amount of the actual call charges paid by You to Us for the call in question.
II. we have no liability for any unauthorized use or misuse of the Service by you or anyone else.
we have no liability either to you or any other Participant of your conference call for any loss that is not reasonably foreseeable, nor any loss of business, revenue, profit, or savings you expected to make, wasted expense, financial loss or data being lost or harmed.
matters beyond our reasonable control – if we cannot do what we have promised in this Contract because of something beyond our reasonable control, including but are not limited to; lightning, flood, or exceptionally severe weather, fire or explosion, civil disorder, war, or military operations, national or local emergency, anything done by government or other competent authority, or industrial disputes of any kind, (including those involving our employees), we will not be liable for this. If any such events continue for more than three months, we can terminate this Contract by giving you notice.
we are not liable whether in contract, tort (including liability for negligence) or otherwise for the acts or omissions of other providers of telecommunication Services or for faults in or failures of their networks and equipment.
MERCURI CONFERENCING, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE WEBSITE AND SERVICES. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, MERCURI, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NEITHER MERCURI NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER MERCURI NOR ITS LICENSORS OR SUPPLIERS HAS ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. ADDITIONALLY, MERCURI HAS NOT AUTHORIZED ANYONE TO MAKE ANY WARRANTY OF ANY KIND ON ITS BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT BY ANY THIRD PARTY.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATIONS OF LIABILITY IN ANY OTHER AGREEMENT OR AGREEMENTS BETWEEN YOU AND MERCURI OR BETWEEN YOU AND ANY OF MERCURI’S LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. MERCURI’S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
Each part of this Contract that excludes or limits our liability operates separately. If any part is disallowed or is not effective, the other parts will continue to apply.
Indemnity by You
You agree to defend, indemnify and hold harmless MERCURI and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns and contractors from and against any and all claims, actions, demands, causes of action and other proceedings, including but not limited to attorneys’ fees and costs, arising out of or relating to: (i) Your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; or (ii) Your access to or use of the Website or Services.
11. Termination of Agreement, Termination of Service, and Suspension of PIN Code or Account
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, MERCURI RESERVES THE RIGHT TO, IN MERCURI’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY USE OF THE WEBSITE OR SERVICES TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR ANY BREACH OR SUSPECTED BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THIS AGREEMENT, OR OF ANY APPLICABLE LAW OR REGULATION.
We can suspend the PIN Code:
Immediately, if you materially breach this Contract and/or we believe that the Service is being used in a way forbidden by Section 8. This applies even if you do not know that the calls are being made, or the Service is being used in such a way. We will inform you of such suspension or termination as soon as reasonably possible and explain why we have taken this action;
Upon reasonable notice if you breach this Contract and fail to remedy the breach within a reasonable period of being asked to do so.
If we suspend the PIN code, it will not be restored until you satisfy us that you will only use the Service in accordance with this Contract.
This Agreement shall automatically terminate in the event that You breach any of this Agreement’s representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by MERCURI.
You may terminate this Agreement at any time, for any or no reason at all, by providing Mercuri notice of Your intention to do so by email notice to CS@MERCURI.CA.
Any termination of this Agreement automatically terminates all rights and obligations created thereby, including without limitation Your right to use the Website and Services, except that Sections 7, 8, 9, 10, 15, 17 (consent to receive email, representation and warranty, disclaimers/limitation of liability, indemnity, intellectual property, jurisdiction) and 16 (general provisions) will survive any termination, and except that any payment obligation You may have relating to Your use of the Services under Section 6 shall remain outstanding and due and payable by You.
Amendments and Changes
Internet and wireless technology and the applicable laws, rules and regulations change frequently. ACCORDINGLY, MERCURI RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AND ITS PRIVACY POLICY AT ANY TIME. NOTICE OF ANY SUCH CHANGE WILL BE GIVEN BY THE POSTING OF A NEW VERSION OR A CHANGE NOTICE ON THE WEBSITE. IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT AND THE PRIVACY POLICY PERIODICALLY. IF AT ANY TIME YOU FIND THIS UNACCEPTABLE, YOU MUST IMMEDIATELY LEAVE THE WEBSITE AND REFRAIN FROM USING THE SERVICES. We can change the conditions of this Contract at any time. We will give you as much notice as reasonably possible of any change to these conditions.
You cannot transfer or try to transfer this Contract or any part of it to anyone else.
You may cancel the contract at any time by writing to us at the address in Section 13, but such cancellation will be ineffective to the extent you continue to use the Service.
If you do not use the Service for at least 6 months we reserve the right to remove the PIN allocated to you from the system.
13. Notice
Any notice under this contract must be delivered or sent by facsimile or pre-paid post or by e-mail as follows:
to us at Mercuri Conferencing, 760 Brant Street, suite 407 Burlington ON L7R4B8 CANADA, or any other address we give you.
to us via facsimile sent to +01 (905) 631-2106.
to us via email sent to CS@MERCURI.CA.
to you at either the postal or e-mail address you gave us during the Registration Process.
Third Party Rights
A person who is not a party to this Contract, has no right under the Contracts (Rights of Third Parties) Act 1999 (UK) to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
The Website may be linked with websites operated by third parties (“Third-Party Websites”). Mercuri does not have control over the Third-Party Websites, each of which may be governed by its own terms of service and privacy policy. MERCURI HAS NOT REVIEWED, AND CANNOT REVIEW OR CONTROL, ALL OF THE MATERIAL, GOODS AND SERVICES MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. ACCORDINGLY, MERCURI DOES NOT REPRESENT, WARRANT OR ENDORSE ANY THIRD-PARTY WEBSITE, OR THE ACCURACY, CURRENCY, CONTENT, FITNESS, LAWFULNESS OR QUALITY OF ANY INFORMATION, MATERIAL, GOODS OR SERVICES MADE AVAILABLE ON OR THROUGH THIRD-PARTY WEBSITES. MERCURI DISCLAIMS, AND YOU HEREBY AGREE TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM YOUR USE OF THIRD-PARTY WEBSITES.
Except for the parties as and to the extent set forth in Section 10, and MERCURI’s licensors and suppliers as and to the extent expressly set forth in Section 9, there are no third-party beneficiaries to this Agreement.
Intellectual Property
The Website, all content and materials located on the Website, and the conferencing infrastructure that delivers the Services, including without limitation the Mercuri name and any logos, designs, text, graphics and other files, and the selection, arrangement and organization thereof, are the intellectual property of Mercuri or its licensors. Except as explicitly provided, neither Your use of the Website and Services, nor Your entry into this Agreement, grant You any right, title or interest in or to any such content or materials. Free Conference and the Mercuri logo, are trademarks, servicemarks or registered trademarks of MERCURI . The Website is Copyright © 2003 to the present, MERCURI . ALL RIGHTS ARE RESERVED.
If you have evidence, know, or have a good faith belief that your copyright rights or the copyright rights of a third party have been violated and you want Mercuri to delete, edit, or disable the material in question, you must provide Mercuri with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Mercuri to locate the material; (d) information reasonably sufficient to permit Mercuri to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
16. General Provisions
Entire Agreement; Interpretation. This Agreement constitutes the entire agreement between Mercuri and You concerning Your use of the Website and Services. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against party.
Severability; Waiver. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
Assignment. This Agreement and all of Your rights and obligations thereunder will not be assignable or transferable by You without the prior written consent of MERCURI. Notwithstanding the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
Relationship. You and Mercuri are independent parties, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
Governing Law
This contract is governed by the laws of the Province of Ontario in the Country of Canada without regard to its conflict of law principles. This Agreement, including without limitation its construction and enforcement, shall be treated as though it were executed and performed in Burlington, Ontario.
THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE WILL BE THE PROVINCIAL AND FEDERAL COURTS OF ONTARIO, CANADA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER IT AROSE OR BE FOREVER WAIVED AND BARRED.