LAST UPDATED: August 2nd, 2019
These Terms of Service and any terms expressly incorporated herein (“Terms”) apply to any access to, or use of, any services made available by SurftheWeb. (“Mercuriex”) using the website www.mercuriex.com (the “Site”) or our mobile applications, and to any other related services provided by Mercuriex (collectively, the “Services”). By clicking on an “I Agree” button or check box presented with these Terms or, if earlier, by accessing or using any Services, you agree to be bound by these Terms.
THE ARBITRATION CLAUSE IN SECTION 18 GOVERNS RESOLUTION OF CERTAIN DISPUTES AND WAIVES ANY RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
1. MODIFICATION OF TERMS
Mercuriex may modify these Terms by providing notice of such changes, such as by sending you an email, providing notice through the Services, or updating the “Last Updated” date at the top of these Terms. By clicking on an “I Agree” button or checkbox presented with the modified Terms, or by continuing to access or use of the Services, you confirm your agreement to the modified Terms. If you do not agree to any modification to these Terms, you must stop using the Services. Mercuriex encourages you to frequently review the Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Services. If you have any question regarding the use of the Site or Services, please contact our Support Team by filing a support request at https://support.Mercuriex.com.
2.1. General Requirements
The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms. You represent and warrant that you: (a) are of legal age to form a binding contract (at least 18 years old in the U.S.); (b) have not previously been suspended or removed from using our Services; (c) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (d) are not placed on the U.S. Commerce Department’s Denied Persons List; and (e) have full power and authority to agree to these Terms.
2.2. Restricted Locations
You may not use the Services if you are located in, or a citizen or resident of any state, country, territory or other jurisdiction that is embargoed by the United States or where your use of the Services would be illegal or otherwise violate any applicable law. You represent and warrant that you are not a citizen or resident of any such jurisdiction and that you will not use any Services while located in any such jurisdiction. You also may not use the Services if you are located in, or a citizen or resident of, any other jurisdiction where Mercuriex has determined, at its discretion, to prohibit use of the Services. Mercuriex may implement controls to restrict access to the Services from any jurisdiction prohibited pursuant to this Section 2.2. You will comply with this Section 2.2, even if Mercuriex’s methods to prevent use of the Services are not effective or can be bypassed.
2.3. Enterprise User
Unless Mercuriex has provided prior, written approval to use your account for trading on behalf of a corporation or other legal entity (an “Enterprise User”), you will use the Services and your Mercuriex Account (as defined below) only for your own account and not on behalf of, or for the account of, any third party. If Mercuriex has approved your account for trading on behalf of an Enterprise User, you will use the Services and your Mercuriex Account solely for the account of the specified Enterprise User. If you use any Services on behalf of any Enterprise User, you agree to these Terms on behalf of yourself and any such Enterprise User, and you represent and warrant that you have the authority to bind the Enterprise User to these Terms and that both you and the Enterprise User will be jointly and severally liable under these Terms for any violation of these Terms or any other act or omission by the Enterprise User or by you.
3.1. Mercuriex Account
In order to use any Services, you must create and maintain an account through the Services (“Mercuriex Account”). To create or maintain your Mercuriex Account, or enable functions on your Mercuriex Account, you will be required to provide Mercuriex with certain information and documentation, including, as applicable, the information and documentation associated with identity verification and other screening procedures described in Section 3.3, below. You will: (a) create a unique password; (b) provide complete and accurate information; (c) promptly update any information you have provided so that the information is complete and accurate at all times; (d) maintain the security of your Mercuriex Account by protecting your password from unauthorized access or use; (e) promptly notify Mercuriex if you discover or suspect any unauthorized access or use of your Mercuriex Account or any security breaches related to your Mercuriex Account; and (f) be responsible for all activities that occur under your Mercuriex Account, and accept all risks of any authorized or unauthorized access to your Mercuriex Account.
3.2. Enhanced Security
Mercuriex may offer optional enhanced security features for your Mercuriex Account (including, for example, two-factor authentication). Mercuriex encourages, but may not require, you to use any such enhanced security features. If you do enable enhanced security features, it is your responsibility to ensure the security of, and your continuous control over, any device or account that may be associated with the enhanced security features.
3.3. Identity Verification
Depending on the functions that you seek to enable on your account and Mercuriex’s risk determination, Mercuriex may, in its discretion, require identity verification and other screening procedures with respect to you or transactions associated with your Mercuriex Account. These verification and screening procedures may include, without limitation, checking the information you provide against the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Office of Foreign Assets Control, the U.S. Department of Commerce Denied Persons list, and any similar list issued by any U.S. governmental authority prohibiting or limiting business activities or transactions with any persons. You may be required to provide Mercuriex with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, photograph of your government-issued ID or other photographic proof of your identity, and information regarding your bank account. You hereby authorize Mercuriex, directly or through a third party, to make any inquiries Mercuriex considers necessary to verify your identity and/or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth); (b) query account information associated with your linked bank account (e.g., name or account balance); and (c) take action Mercuriex reasonably deems necessary based on the results of such inquiries and reports. You further authorize any and all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests. Mercuriex will have no liability or responsibility for any permanent or temporary inability to access or use any Services, including your inability to withdraw Tokens or execute Trades, as a result of any identity verification or other screening procedures.
3.4. Responsibility for Account Activities
You will be bound by, and hereby authorize Mercuriex to accept and rely on, any agreements, instructions, orders, authorizations and any other actions made, provided or taken by anyone who has accessed or used your Mercuriex Account regardless of whether the access is authorized or unauthorized. Upon receipt of written notice from you that the security of your account has been compromised, Mercuriex will take reasonable steps to protect your account, including, for example, to cease to allow actions initiated using any compromised account passwords. But, the first sentence of this section will continue to apply to any other account password, and any substitute password issued to replace the compromised account password.
3.5. Number of Mercuriex Accounts
Mercuriex may, in its sole discretion, limit the number of Mercuriex Accounts that you may hold, maintain, or acquire.
4. RISK DISCLOSURES; ASSUMPTION OF RISKS; RELEASE OF Mercuriex
Trading cryptocurrency, cryptographic tokens and other digital rights or assets (“Tokens”), and use of other Services provided by Mercuriex, involves significant risks and potential for financial losses, including without limitation the following:
The features, functions, characteristics, operation, use and other properties of any Token (“Token Properties”) and the software, networks, protocols, systems, and other technology (including, if applicable, any blockchain) (“Underlying Technology”) used to administer, create, issue, transfer, cancel, use or transact in any Token may be complex, technical or difficult to understand or evaluate.
Any Token and its Underlying Technology may be vulnerable to attacks on the security, integrity or operation of the Token or its Underlying Technology (“Attacks”), including Attacks using computing power sufficient to overwhelm the normal operation of a blockchain or other Underlying Technology.
Any Token, Token Properties or Underlying Technology may change or otherwise cease to operate as expected due to a change made to the Underlying Technology, a change made using features or functions built into the Underlying Technology or a change resulting from an Attack. These changes may include, without limitation, a “fork” or “rollback” of a Token or blockchain.
Any Token may be cancelled, lost or double spent, or otherwise lose all or most of their value, due to forks, rollbacks, Attacks, changes to Token Properties or failure of the Token to operate as intended.
Mercuriex may suspend or cease to support the transfer, storage or trading of any Token at any time at Mercuriex’s discretion. Other exchanges and service providers may do the same.
Mercuriex may not support metacoins, colored coins or other Tokens, or their related side chains or other Underlying Technology that are based on a fork, enhancement, or derivative of a different Token or Underlying Technology (“Derivative Protocols”) even if the Derivative Protocol is based on a Token that is supported by Mercuriex. Other exchanges or service providers may do the same.
Mercuriex may suspend or reject your transaction requests, suspend or cease support for Tokens, or suspend or terminate your access to the Services to comply with applicable laws or regulations or an order from law enforcement or other governmental authority, for other reasons as specified in these Terms or otherwise at Mercuriex’s discretion.
You may be unable to withdraw Tokens prior to Mercuriex ceasing to support transfer of any such Tokens, resulting in the loss of any such Tokens remaining in your Mercuriex Account.
Any Token may decrease in value or lose all of its value due to various factors including discovery of wrongful conduct, market manipulation, changes to Token Properties or perceived value of Token Properties, Attacks, suspension or cessation of support for a Token by Mercuriex or other exchanges or service providers, and other factors outside the control of Mercuriex.
Any Token may decrease in value or lose all of its value due to legislative or regulatory activity, or other government action. Government regulation of Tokens is unsettled and rapidly evolving.
Any Token may be lost if sent to the wrong address (for example but without limitation, if the address is improperly formatted, contains errors, or is intended to be used for a different type of Token). You may be prevented from sending a transaction request, or your transaction request or email may not be received by Mercuriex or the Services, due to hardware, software or services issues (including, without limitation, Internet and other network connectivity issues).
Your transaction request or email to Mercuriex or the Services may be lost, intercepted or altered during transmission.
Unauthorized third parties may access or use your Mercuriex Account and effect transactions without your knowledge or authorization, whether by obtaining the password to your Mercuriex Account, obtaining control over another device or account used by you in connection with any enhanced security measures enabled for your account, or by other methods.
The risks described in this Section 4 may result in loss of Tokens, decrease in or loss of all value for Tokens, inability to access or transfer Tokens, inability to trade Tokens, inability to receive financial benefits available to other Token holders, and other financial losses to you. You hereby assume, and agree that Mercuriex will have no responsibility or liability for, such risks. You hereby irrevocably waive, release and discharge any and all claims, whether known or unknown to you, against Mercuriex, its Affiliates and their respective shareholders, members, directors, officers, employees, agents and representatives related to any of the risks set forth herein. You waive application of Section 1542 of the Civil Code of the State of California, or any similar statute or law of any other jurisdiction. Section 1542 reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You represent and warrant that you have: (a) the necessary technical expertise and ability to review and evaluate the security, integrity and operation of any Tokens that you decide to acquire or trade; and (b) the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits and risks of any Token or trade. You accept the risk of trading Tokens by using the Services, and are responsible for conducting your own independent analysis of the risks specific to the Tokens and the Services. You should not acquire or trade any Tokens unless you have sufficient financial resources and can afford to lose all value of the Tokens.
Mercuriex’s decision to support transfer, storage or trading of any particular Token through the Services does not indicate Mercuriex’s approval or disapproval of the Token or the integrity, security or operation of the Token or its Underlying Technology. The risks associated with Tokens and trading Tokens apply notwithstanding Mercuriex’s decision to support a particular Token. Mercuriex does not provide trading advice, does not have any fiduciary duty to you or any other user and does not make any warranty about the suitability of any Token for trading or ownership by you.
6. ACCOUNT FUNDING; TRANSFERS
6.1. Initial Account Funding
In order to engage in a Trade (as defined below) you must first transfer Tokens that are supported by the Services to your Mercuriex Account. The Services associated with your Mercuriex Account include a wallet service provided by Mercuriex (“Hosted Wallet”). The Hosted Wallet will permit you to generate one or more addresses to which Tokens may be transferred from an account, wallet or address not hosted or controlled by Mercuriex (“External Account”). Mercuriex may require that you verify your control over an External Account or satisfy other verification or screening requirements prior to enabling transfers between the applicable External Account and your Hosted Wallet (any such External Account, an “Approved External Account”).
You may periodically at your discretion transfer from an Approved External Account to your Hosted Wallet any Tokens that are supported for transfer and storage using the Services. If you transfer to your Hosted Wallet any Tokens that are not supported by the Services, such Tokens may be permanently lost.
You are required to retain in your Hosted Wallet a sufficient quantity of Tokens necessary to satisfy any open orders (and applicable Mercuriex fees). In addition, there may be limits on the amounts that you are able to withdraw on a daily or other periodic basis. Otherwise, you may periodically at your discretion withdraw Tokens by transferring Tokens from your Hosted Wallet to an address not controlled by Mercuriex (“External Address”). Mercuriex may require you to verify that any External Address to which you seek to transfer Tokens is associated with an Approved External Account. You hereby authorize Mercuriex to use your Hosted Wallet to send to any External Address specified by you using the Services, the number of Tokens specified by you using the Services. Mercuriex is not able to reverse any transfers and will not have any responsibility or liability if you have instructed Mercuriex to send Tokens to an address that is incorrect, improperly formatted, erroneous or intended for a different type of Token.
6.4. Other Terms Applicable to Transfers
You will be responsible for: (a) paying all fees charged by any third party service provider associated with any External Account or External Address as well as for paying any fees charged by Mercuriex for any transfers; (b) ensuring that any inbound and outbound transfers are handled in compliance with Mercuriex requirements, third party service provider requirements or Token requirements; (c) ensuring that the address to which any Tokens are to be transferred is properly formatted and suitable for the type of Token being transferred; and (d) ensuring that there are no errors in any of the transfer instructions you provide using the Services. In the event you fail to comply with any requirements of this Section 6.4, the transferred Tokens may be permanently lost. The timing for completing any transfer will depend on third party actions that are outside the control of Mercuriex and Mercuriex makes no guarantee regarding the amount of time it may take to complete any transfer. Mercuriex may impose limits on the amount of any inbound or outbound transfers, or suspend or terminate the ability to transfer Tokens into or out of your Hosted Wallet in order to comply with applicable laws or regulations, an order from law enforcement or other governmental authority, or otherwise at Mercuriex’s discretion.
7. EXCHANGE ORDERS AND TRADES
7.1. Orders; Fees
A “Trade” is an exchange of Tokens for which trading is supported on the Services between you and another user of the Services whereby you dispose of certain Tokens and acquire different Tokens. An “Order” is created when you enter an instruction to effect a Trade using the Services. When you enter an Order you authorize Mercuriex to execute a Trade on a spot basis for all or a portion of the number of Tokens specified in your Order in accordance with such Order. You agree to pay Mercuriex any applicable fees for Trades and authorize Mercuriex to deduct any such fees from your Hosted Wallet.
7.2. No Broker or Fiduciary Relationship
Mercuriex is not your broker, intermediary, agent, or advisor and has no fiduciary relationship or obligation to you in connection with any Trades or other decisions or activities effected by you using the Services. No communication or information provided to you by Mercuriex is intended as, or shall be considered or construed as, advice. Please refer to Section 4 for a summary of some of the risks you should consider when choosing whether to use our Services.
7.3. Order Confirmation
Before an Order is placed, the Services will generate and a display summarizing the details of the proposed transaction, including type and amount of Tokens you are seeking to dispose of, the type and amount of Tokens that you are willing to accept in exchange for the Tokens you are seeking to dispose of, Mercuriex’s estimated fees if the entire Order were to be executed, and the total number and type of Tokens that will be transferred out of your Hosted Wallet if the entire Order were to be executed. Your Order will be placed upon confirmation of the Order summary via the Services. Notwithstanding the foregoing, you agree that the failure of the Services to provide such Order summary or confirmation shall not prejudice or invalidate any Order submitted by you or any Trade completed based on such Order.
7.4. Order Matching and Trade Execution
Upon placement of an Order, your Mercuriex Account will be updated to reflect the open Order and your Order will be included in Mercuriex’s order book for matching with Orders from other users. If all or a portion of your Order is matched with another user, the Services will execute a Trade. Upon execution of a Trade, your Mercuriex Account will be updated to reflect that the Order has either been closed due to having been fully executed, or updated to reflect any partial fulfillment of the Order. Orders will remain open until fully executed or cancelled in accordance with Section 7.5 below. For purposes of effectuating a Trade, you authorize Mercuriex to take temporary control of the Tokens that you are disposing of in the Trade.
You may only cancel an order initiated via the Services if such cancellation occurs before your Order has been matched with an Order from another user. Once your Order has been matched with an Order from another user, you may not change, withdraw, or cancel your authorization for Mercuriex to complete such Order. If any order has been partially matched, you may cancel the unmatched portion of the Order unless and until the unmatched portion has been matched. Mercuriex reserves the right to refuse any cancellation request associated with a market Order after you have submitted such Order.
7.6. Insufficient Tokens
If you have an insufficient amount of Tokens in your Hosted Wallet to fulfill an Order, Mercuriex may cancel the entire Order or may fulfill a partial Order that can be covered by the Tokens in your Hosted Wallet (after deducting any fees payable to Mercuriex in connection with the Trade).
8. GENERAL SERVICE TERMS
8.1. Conditions and Restrictions
Mercuriex may, at any time and in its sole discretion, refuse any transfer request, Order or other transaction request submitted via the Services, impose limits on the amounts of transfers or Trades that can be completed on a daily or other periodic basis or impose any other conditions or restrictions upon your use of the Services, without prior notice. For example, Mercuriex may: (a) limit the number of open Orders that you can establish via the Services; (b) restrict transaction requests from certain locations; or (c) restrict withdrawals or trading if there is a reasonable suspicion of fraud, diminished capacity, inappropriate activity, or if Mercuriex receives reasonable notice that your ownership of some or all of the Tokens in your Mercuriex Account is in dispute.
8.2. Accuracy of Information
You must provide any information required by any screen displayed within the Services. You represent and warrant that all information you provide via the Services is accurate and complete.
8.3. Support for Tokens
Mercuriex retains the right, in its sole discretion, to determine whether to support transfer, storage or trading of any Token using the Services, and may discontinue or terminate any support for any Token at any time for any or no reason. Unless otherwise required by law or law enforcement, Mercuriex will make reasonable efforts to notify you of its decision to cease to support of a Token. If Mercuriex ceases to support transfer or storage of a particular Token using the Services, Mercuriex will use commercially reasonable efforts to notify you at least 14 days prior so as to afford you with an opportunity to transfer the affected Token from your Hosted Wallet to an External Address. If you do not transfer the affected Token out of your Hosted Wallet prior to cessation of support for the Token by Mercuriex, the Token may be lost due to your inability to access, transfer or otherwise control the Token. Mercuriex will not be liable to you for any losses, liability or expenses related to its decision to cease any support for any Token.
8.4. Derivative Protocols
Unless Mercuriex notifies you or makes a public statement to the contrary, Mercuriex does not support Derivative Protocols and you should not use your Mercuriex Account to attempt to transfer, store, trade or engage in any other type of transaction involving a Derivative Protocol. Mercuriex will have no responsibility or liability whatsoever in respect to any Derivative Protocol.
8.5. Compliance with Law; Taxes
You are responsible for complying with all applicable laws related to your trading activities and other use of the Services, including without limitation any reporting obligations and payment of all applicable taxes. You will determine what, if any, taxes apply to the Trades and any other transactions you complete via the Services, and it is your responsibility to report and remit the correct tax to the appropriate tax authority. Mercuriex is not responsible for determining whether taxes apply to your Trades or for collecting, reporting, withholding, or remitting any taxes arising from any Trades.
8.6. AML/KYC Compliance
As a registered Money Services Business, Mercuriex maintains an internal anti-money laundering and know your customer compliance program (“AML/KYC Program”). The AML/KYC Program is a risk-based program founded on requirements of the Bank Secrecy Act, other anti-money laundering laws and implementing regulations, and guidance promulgated by the Financial Crimes Enforcement Network. This AML/KYC Program may be updated from time-to-time, including the procedures that Mercuriex uses to verify its customers’ identities.
8.7. Error Correction Attempts
Mercuriex may, at its option and discretion, attempt to correct, reverse or cancel any Order, Trade or transfer with respect to which Mercuriex has discovered that there was an error, whether such error was by you, Mercuriex or a third party. You hereby authorize Mercuriex to attempt any such correction, reversal or cancellation described in the preceding sentence. Mercuriex provides no guarantee or warranty that any such attempt will be successful and will have no responsibility or liability for the error or any correction attempt.
8.8. Unclaimed Property
If your Mercuriex Account has been inactive and you have not responded to reasonable attempts by Mercuriex to contact you for a period of several years (as defined by the relevant state statutes), Mercuriex may have an obligation to report any Tokens in your Hosted Wallet to the applicable governmental entity as unclaimed property. If this happens, Mercuriex will attempt to contact you using the contact information provided by you. If you do not respond, Mercuriex may be obligated to turn over any Tokens in your Hosted Wallet to the applicable governmental entity after deducting any fees payable to Mercuriex.
8.9. Property Disputes
If Mercuriex receives notice that any Tokens held in your Hosted Wallet are alleged to have been stolen or otherwise are not lawfully possessed by you, Mercuriex may, but has no obligation to, place an administrative hold on the affected Tokens or your Hosted Wallet. If Mercuriex does place an administrative hold on some or all of your Tokens, Mercuriex may continue such hold until such time as the dispute has been resolved and evidence of the resolution acceptable to Mercuriex has been provided to Mercuriex in a form acceptable to Mercuriex. Mercuriex will not involve itself in any such dispute or the resolution of the dispute. You agree that Mercuriex will have no liability or responsibility for any such hold, or for your inability to withdraw Tokens or execute Trades during the period of any such hold.
8.10. Token Promotions
You are responsible for doing all things and taking all actions necessary to enable or receive financial or other benefits made available to Token holders. For example, and without limitation, if new or additional Tokens are provided (whether by “airdrop” or other means) to holders of a Token, it would be your responsibility to claim the Tokens and to designate the wallet address for such Tokens to be delivered. Mercuriex has no responsibility to enable, facilitate or help with claiming or receiving any such Tokens or other benefits. For more information, please see our FAQ posted here.
8.11. Unacceptable Use or Conduct
You will not:
violate any law, regulation, contract, intellectual property or other third-party right, or commit a tort while using the Services;
use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
use the Services to pay for, support, or otherwise engage in any illegal gambling activities, fraud, money-laundering, or terrorist activities, or other illegal activities;
use any robot, spider, crawler, scraper, or other automated means or interface not provided by Mercuriex to access the Services or to extract data;
use or attempt to use another user’s account without authorization;
attempt to circumvent any content filtering techniques Mercuriex employs, or attempt to access any service or area of the Services that you are not authorized to access;
introduce to the Services any malware, virus, trojan worms, logic bombs, or other harmful material;
develop any third-party applications that interact with our Services without our prior written consent, or unless otherwise agreed;
provide false, inaccurate, or misleading information;
post content or communications that are, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
post content containing unsolicited promotions, political campaigning, or commercial messages (SPAM) or any chain messages or user content designed to deceive or trick the user of the Service;
post content containing private information of any third-party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; or
encourage or induce any third party to engage in any of the activities prohibited under this Section.
You agree to pay Mercuriex the fees described in the fee schedule (“Fee Schedule”), as periodically updated by Mercuriex at Mercuriex’s discretion. The updated Fee Schedule will apply prospectively to any Trades or other transactions that take place following the effective date of such updated Fee Schedule. You authorize Mercuriex to remove Tokens from your Hosted Wallet for any applicable fees owed by you under these Terms.
10. CHANGES; SUSPENSION; TERMINATION
10.1. Changes to Services
Mercuriex may, at its discretion and without liability to you, with or without prior notice and at any time, modify or discontinue, temporarily or permanently, all or any portion of any Services.
10.2. Suspension or Termination of Services
Mercuriex may, at its discretion and without liability to you, with or without prior notice and at any time, temporarily suspend or permanently terminate your access to all or a portion of any Services.
10.3. No Liability
Mercuriex will not be liable for any losses suffered by you resulting from any modification of any Services or from any suspension or termination of your access to all or a portion of any Services (whether pursuant to this Section 10 or for any other reason). If and when Services resume, you acknowledge that Token valuations and exchange rates may differ significantly from the valuations and rates prior to such event.
10.4. Effect of Termination
In the event of discontinuation of all Services or other termination of your right to access all Services: (a) all amounts payable by you to Mercuriex will immediately become due; (b) Mercuriex may delete or deactivate your Mercuriex Account and all related information and files in such account without liability to you; and (c) Mercuriex may cancel any open Orders or other transaction requests that are pending at the time of discontinuation or termination. In the event of discontinuation or termination of all Services or discontinuation or termination of transfer or storage Services for all or some Tokens, Mercuriex will use commercially reasonable efforts, unless prohibited in order to comply with applicable laws or regulations or by order of law enforcement or other governmental authority, to provide you with a period of 90 days to remove the affected Tokens from your Hosted Wallet.
The terms of Sections 2.3, 3.3, 4, 5, 6 and 8 through 20 will survive any termination of your access to the Services.
11. ELECTRONIC NOTICES
11.1. Consent to Electronic Delivery
You consent to receive electronically all communications, agreements, documents, receipts, notices, and disclosures (collectively, “Communications”) that Mercuriex provides in connection with this Agreement, your Mercuriex Account or any Services. You agree that Mercuriex may provide these Communications to you by posting them via the Services, by emailing them to you at the email address you provide, sending them using an app or other messaging service to your account on the app or messaging service, and/or by sending an SMS or text message to a mobile phone number that you provide. Your carrier's normal, messaging, data, and other rates and fees may apply to any mobile Communications. You should maintain copies of electronic Communications by printing a paper copy or saving an electronic copy. You may also contact Mercuriex’s Support Team to request additional electronic copies of Communications or, for a fee, paper copies of Communications (as described below) by filing a support request at https://support.Mercuriex.com.
11.2. Hardware and Software Requirements
In order to access and retain electronic Communications, you will need a computer with an Internet connection that has a current web browser with cookies enabled and 128-bit encryption. You will also need to have a valid email address on file with Mercuriex and have sufficient storage space to save past Communications or an installed printer to print them.
11.3. Withdrawal of Consent
You may withdraw your consent to receive electronic Communications by sending a withdrawal notice to our Support Team by filing a support request at http://support.Mercuriex.com. If you decline or withdraw consent to receive electronic Communications, Mercuriex may suspend or terminate your use of the Services.
11.4. Requesting Paper Copies
If, after you consent to receive Communications electronically, you would like a paper copy of a Communication that Mercuriex previously sent you, you may request a copy within 30 days after the date Mercuriex provided the Communication to you by contacting Mercuriex at https://support.Mercuriex.com. In order for Mercuriex to send paper copies to you, you must have a current street address on file with Mercuriex. Please note that our Services operate exclusively online and it is very burdensome for Mercuriex to produce paper copies of Communications. Therefore, if you request paper copies, you agree that Mercuriex may charge you a processing fee, in the amount described in the Fee Schedule at Mercuriex.com/fees for each page of Communication requested.
11.5. Updating Contact Information
It is your responsibility to keep your email address and/or mobile phone number on file with Mercuriex up to date so that Mercuriex can communicate with you electronically. If Mercuriex sends you an electronic Communication but you do not receive it because your email address or mobile phone number on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, Mercuriex will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Mercuriex to your email address book so that you will be able to receive the Communications Mercuriex sends to you. You can update your email address, mobile phone number, or street address at any time by filing a support request at https://support.Mercuriex.com. If your email address or mobile phone number becomes invalid such that electronic Communications sent to you by Mercuriex are returned, Mercuriex may deem your account to be inactive, and you may not be able to complete any transaction via our Services until Mercuriex receives a valid, working email address or mobile phone number from you.
12. PROPRIETARY RIGHTS
12.1. Ownership of Services
The Services, Site and all technology, content and other materials used, displayed or provided in connection with the Services or Site (“Mercuriex Materials”) together with all intellectual property rights in any of the foregoing are, as between you and Mercuriex, owned by Mercuriex.
You may use the Mercuriex Materials solely as authorized by Mercuriex in connection with your use of the Services for as long as Mercuriex permits you to continue to access the Services. Without limiting the foregoing: you will not (a) resell, lease, lend, share, distribute or otherwise permit any third party to use the Site, Services or Mercuriex Materials or use the Site, Services or Mercuriex Materials in any service bureau environment; (b) modify or create derivative works of the Site, Services or Mercuriex Materials, or any portion thereof; (c) frame, display or incorporate the Site, Services or Mercuriex Materials in any website or any other work of authorship; (d) decompile, disassemble, reverse engineer or attempt to discover the source code of the Site, Services or Mercuriex Materials; (e) use the Site, Services or Mercuriex Materials to design, develop or create any competing product or service; or (f) otherwise use the Site, Services or Mercuriex Materials for any commercial or noncommercial purpose other than their intended purposes determined at Mercuriex’s discretion. "Mercuriex”, any product or service names, logos, and other marks used on the Site or Mercuriex Materials, or otherwise in connection with the Services, are trademarks owned by Mercuriex or its licensors. You may not copy, imitate or use them without Mercuriex's prior written consent.
Mercuriex will own any feedback, suggestions, ideas, or other information or materials regarding Mercuriex or the Services that you provide, whether by email, posting through the Services or otherwise (“Feedback”). You hereby assign to Mercuriex all right, title and interest to Feedback together with all associated intellectual property rights. You will not be entitled to, and hereby waive any claim for, acknowledgment or compensation based on any Feedback or any modifications made based on any Feedback.
12.4. User Content
You hereby grant to Mercuriex a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium or manner, any text, information, data, materials, images, or other content you provide to Mercuriex using the Services or submit or post to the Site and that is not Feedback owned by Mercuriex (the “User Content”). You represent and warrant that: (a) you own the User Content or have the right to grant the rights and licenses in these Terms, and (b) the User Content and use by Mercuriex of the User Content as licensed herein does not and will not violate, misappropriate or infringe on the rights of any third party. Mercuriex may remove any User Content from the Site for any reason at Mercuriex’s discretion.
13. THIRD-PARTY CONTENT
In using the Services, you may view content provided by third parties (“Third-Party Content”). Mercuriex does not control, endorse, or adopt any Third-Party Content and shall have no responsibility for Third‑Party Content, including without limitation material that may be misleading, incomplete, erroneous, offensive, indecent, or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. Mercuriex is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, and you understand that your use of Third-Party Content, and your interactions with third parties, is at your own risk.
14. DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SITE, THE SERVICES, THE Mercuriex MATERIALS AND ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF Mercuriex ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND Mercuriex EXPRESSLY DISCLAIMS, AND YOU WAIVE, ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WITHOUT LIMITING THE FOREGOING, Mercuriex DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE SERVICES OR Mercuriex MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE THAT YOUR USER DATA MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, VIRUSES OR OTHER HARMFUL MATERIALS, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES.
THE DISCLAIMER OF IMPLIED WARRANTIES CONTAINED HEREIN MAY NOT APPLY IF AND TO THE EXTENT IT IS PROHIBITED BY APPLICABLE LAW OF THE JURISDICTION IN WHICH YOU RESIDE.
You will defend, indemnify, and hold harmless Mercuriex, its Affiliates, and their respective shareholders, members, directors, officers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, the Services; (b) any Feedback or User Content you provide; (c) your violation of these Terms; or (d) your violation of any applicable law or the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, Mercuriex (or, at Mercuriex’s discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Mercuriex wishes to settle, and if so, on what terms.
16. DISCLAIMER OF DAMAGES
IN NO EVENT WILL Mercuriex, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, REVENUE, PROFITS OR OTHER BUSINESS OR FINANCIAL BENEFIT) ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE SERVICES, THE Mercuriex MATERIALS, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF Mercuriex, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF Mercuriex), EVEN IF Mercuriex HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. LIMITATION OF LIABILITY
IN NO EVENT WILL THE LIABILITY OF Mercuriex, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH SITE, THE SERVICES, THE Mercuriex MATERIALS, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES, OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF Mercuriex, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF Mercuriex) EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO Mercuriex UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
18. DISPUTE RESOLUTION; ARBITRATION; WAIVER OF CLASS ACTION
With the exception only of disputes related to the enforcement or validity of Mercuriex’s intellectual property rights, all disputes, controversies or claims arising out of or relating to these Terms or the Services, will be resolved through confidential binding arbitration held in Seattle, Washington in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You acknowledge and agree that you have read and understand the rules of JAMS or waived your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You agree that any dispute arising out of or related to these Terms or the Services is personal to you and Mercuriex and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You agree that these Terms involve matters affecting interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You agree that for any arbitration, the party filing the claim will pay the filing fee and the parties will split the remaining JAMS fees and costs. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. Otherwise, you and Mercuriex agree that the state or federal courts in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
WITH RESPECT TO DISPUTES SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 18, BOTH YOU AND Mercuriex ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) THOSE DISPUTES IN COURT BEFORE A JUDGE OR JURY.
19. GOVERNING LAW
The interpretation and enforcement of these Terms, and any dispute related to these Terms or the Services, will be governed by and construed and enforced in accordance with the laws of State of Washington, without regard to conflict of law rules or principles (whether of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that Mercuriex may initiate a proceeding related to the enforcement or validity of Mercuriex’s intellectual property rights in any court having jurisdiction. With respect to any other proceeding that is not subject to arbitration under these Terms, the federal and state courts located in King County, Washington will have exclusive jurisdiction. You waive any objection to venue in any such courts.
20. OTHER TERMS
20.1. Copyright Violations
Mercuriex has a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Mercuriex. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Mercuriex for certain costs and damages.
If you violate any of these Terms, Mercuriex may, as it determines reasonably necessary to remedy or mitigate your violation, delete all or part of such information transmitted by you, suspend or cancel your account, or confiscate Tokens owned by you without any prior notice to you. Mercuriex shall in no event be responsible or liable for any damage incurred by the user as a result of an action taken by Mercuriex pursuant to this paragraph. Any right or remedy of Mercuriex set forth in these Terms is in addition to, and not in lieu of, any other right or remedy whether described in these Terms, under statute, at law or in equity.
20.3. Mercuriex Affiliates and Contractors
An “Affiliate” is, with respect to a legal entity, another legal entity that controls, is under common control with, or is controlled by the first legal entity. The Site and any Services may be operated or provided by Mercuriex, its Affiliates or their respective contractors. To the extent that an Affiliate of Mercuriex, or contractor of Mercuriex or an Affiliate of Mercuriex, is operating or providing any Services, the Affiliate or contractor’s provision of such Services will be under terms identical to these Terms substituting the Affiliate or contractor’s name wherever Mercuriex’s name occurs in these Terms.
Mercuriex’s failure or delay in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.
The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
20.6. Force Majeure
Mercuriex will have no responsibility or liability for any failure or delay in performance of any Services, or any loss or damage that you may incur, due to any circumstance or event beyond the control of Mercuriex, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
You may not assign or transfer any right to use the Services or any of your rights or obligations under these Terms without prior written consent from us, including by operation of law or in connection with any change of control. Mercuriex may assign or transfer any or all of its rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
Headings of sections are for convenience only and shall not be used to limit or construe such sections.