Terms of Services

PLEASE READ CAREFULLY BEFORE DOWNLOADING THE SOFTWARE OR USING THE MERCON OPTICS PRODUCT

1. YOUR AGREEMENT WITH MERCON OPTICS

1.1 Mercon Optics applications (“Mercon OpticsSoftware”), other Mercon Optics branded web sites (“Mercon Optics Websites”) and associated documentation (whether in printed or electronic form) including any improvements, modifications, enhancements, fixes, updates, upgrades and future versions thereto (“Updates”) and whether made available for free or for a fee, (collectively the “Software”) is licensed (not sold) to you by Mercon Optics, LLC.

1.2 The features and products that are made available through the Software for free (excluding products or features available for free on a trial basis only) (“Free Products”) are provided to you by Mercon Optics, LLC.

1.3 Any additional products or features of the Mercon Optics apps or Mercon Optics Websites, or other “Mercon Optics” branded products, that you pay for (including products or features which are available for free on a trial basis only) (“Paid For Products”) are provided to you by Mercon Optics, LLC.

1.4 Mercon Optics’s websites www.Mercon Optics.com(as applicable) (“Mercon Optics Website(s)”) are operated by Mercon Optics, LLC.

1.5 “Mercon Optics’’ means Mercon Optics, LLC, 2504 Auburn Way N,  Auburn, WA 98002, United States as the context requires;

“Products” means collectively the Free Products and Paid For Products;

“you” or “your” means you, the registered holder of the User Account (as described in paragraph 6.1) and licensee under these Terms.

1.6 Your agreement with Mercon Optics is made up of the terms and conditions set out in this document, together with any fair usage policies described in this document (collectively the “Terms”). To the extent of any inconsistency between the fair usage policies or any Additional Terms and this document, this document shall take precedence.

2. ACCEPTANCE OF THE TERMS

2.1 In order to download and/or use the Software, Products and/or Mercon Optics Websites you must first accept these Terms. These Terms are accepted by you (a) when you click to accept or agree the Terms; or (b) when you download and/or use the Software, Products and/or Mercon Optics Websites. We advise you to print a copy of these Terms for your records. These Terms remain effective from the date of acceptance until terminated by you or Mercon Optics in accordance with paragraph 11.

2.2 You cannot accept these Terms if: (a) you are not lawfully entitled to use the Software, Products and/or Mercon Optics Websites in the country in which you are located or resident or (b) if you are not of legal age to form a binding agreement with Mercon Optics.

3. CHANGES TO THE TERMS

3.1 Mercon Optics may make changes to these Terms from time to time. Mercon Optics will publish the changes at  www.Mercon Optics.com/legal/tou . Changes to the fair usage policies and/or Additional Terms will be posted on the applicable Mercon Optics Website. The changes will be effective when published. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Software, Products and/or Mercon Optics Websites after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with Mercon Optics in accordance with paragraph 11 below.

4. LICENCE

4.1 Licence. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to download and install the Software on a personal computer, mobile phone or other device; and personally use the Software through your individualMercon Optics user account (“User Account”). For the avoidance of doubt, (a) IT administrators working on behalf of a company may download and install the Mercon Optics Software onto personal computers or other devices used by personnel of such company; and (b) you are permitted to use the Software at a university or other educational institution, or at work. Mercon Optics reserves all rights not expressly granted to you under these Terms.

4.2 Restrictions. You may not and you agree not to.

(a) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party in the Software;

(b) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Software or any part or features thereof (except to the extent permitted by law);

(c) remove, obscure or alter any copyright notices or other proprietary notices included in the Software;

(d) use the Software or cause the Software (or any part of it) to be used within or to provide commercial products or services to third parties. The foregoing shall not preclude you using the Software for your own business communications, subject to Section 4.1 above;

(e) other than for the purposes of download and installation, use the Software except through your User Account.

4.3 Third Party Technology. If you are using Software pre-loaded on, embedded in, combined, distributed or used with or downloaded onto third party products, hardware, software applications, programs or devices (“Third Party Technology”), you agree and acknowledge that: (a) you may be required to enter into a separate license agreement with the relevant third party owner or licensor for the use of such Third Party Technology; (b) some Products and/or functionality may not be accessible through the Third Party Technology and Mercon Optics cannot guarantee that the Software shall always be available on or in connection with such Third Party Technology.

5. USE OF THE SOFTWARE AND PRODUCTS AND MERCON OPTICS WEBSITES

5.1 General Conditions of Use: If you arrive at the site through entities linked and/or integrated with Revolver or otherwise by or through a third party (e.g., an auction, exchange, or Internet-based intermediary that hosts electronic marketplaces and mediates transactions among businesses), then you authorize such third party to transfer relevant data to Mercon Optics to facilitate the transaction. You represent and warrant that all information you provide to Mercon Optics or to such third party will be true, accurate and complete. The party entering into this agreement on behalf of any user represents and warrants that he/she is authorized to do so and to bind the user and is a natural person of at least twenty one (21) years of age. In order to initiate and commence a transaction, all users to a transaction must register at the site, agree to all term of use.

5.2 Equipment: In order to use the Software and the Products you will need an Internet connection. You are responsible for providing all equipment required to access the Internet or enable communications such as headsets and microphones.

5.3 Use of Your Equipment: The Mercon OpticsSoftware may use the processing capabilities, memory and bandwidth of the computer (or other applicable device) you are using, for the limited purpose of facilitating the communication and establishing the connection between Mercon Optics Software users. If your use of the Mercon Optics Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, you acknowledge and agree that your license to use the Mercon Optics Software is subject to you obtaining consent from the relevant third party for such use. You represent and warrant that by accepting these Terms, you have obtained such consent.

5.4 Updates to the Software: Mercon Optics may automatically check your version of the Mercon Optics Software. You may be required to enter into an updated version of these Terms to be able to download or otherwise take advantage of any Updates. Mercon Optics has no obligation to make available any Updates. However, Mercon Optics may (a) require you to download and install Updates; or (b) download and install Updates from Mercon Optics automatically from time to time. You agree to receive such updates from Mercon Optics in order to continue using the Mercon Optics Software and you agree to accept such Updates subject to these Terms.

5.5 Suspension, technical improvement and maintenance: From time to time, Mercon Optics may need to perform maintenance on or upgrade the Software, Products or Mercon Optics Websites or the underlying infrastructure that enables you to use the Software, Products or Mercon Optics Websites. This may require Mercon Optics to temporarily suspend or limit your use of some or all of the Software, Products or Mercon Optics Websites until such time as this maintenance and/or upgrade can be completed. To the extent possible and unless an intervention is urgently required, Mercon Optics will publish the time and date of such suspension or limitation on the Mercon Optics Website in advance. You will not be entitled to claim damages for such suspension or limitation of the use of any Software, Product or Mercon Optics Website.

5.6 Mercon Optics Content:Mercon Optics does not control, is not responsible for and makes no representations or warranties with respect to any user content. You are solely responsible for your access to, use of and/or reliance on any user content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any user content.

You are also responsible for any content that you post or transmit and, if you create an account, you are responsible for all content posted or transmitted through or by use of your account.

Content prohibited from Mercon Optics includes but is not limited to: (1) illegal content; (2) content in facilitation of the creation, advertising, distribution, provision or receipt of illegal goods or services; (3) offensive content (including, without limitation, defamatory, threatening, hateful or pornographic content); (4) content that discloses another’s personal, confidential or proprietary information; (5) false or fraudulent content (including but not limited to false, fraudulent or misleading responses to user ads transmitted via Mercon Optics); (6) malicious content (including, without limitation, malware or spyware); (7) content that offers, promotes, advertises, or provides links to posting or auto-posting products or services, account creation or auto-creation products or services, flagging or auto-flagging products or services, bulk telephone numbers, or any other product or service that if utilized with respect to Mercon Optics would violate these TOS or Mercon Optics’s other legal rights; and (8) content that offers, promotes, advertises or provides links to unsolicited products or services.

You automatically grant and assign to Mercon Optics, and you represent and warrant that you have the right to grant and assign to Mercon Optics, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any content that you post. You also expressly grant and assign to Mercon Optics all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).

You agree to indemnify and hold Mercon Optics and Mercon Optics Representatives harmless from and against any third-party claim, cause of action, demand or damages related to or arising out of: (a) content that you post or transmit (including but not limited to content that a third-party deems defamatory or otherwise harmful or offensive); (b) activity that occurs through or by use of your account (including, without limitation, all content posted or transmitted); (c) your use of or reliance on any user content; and (d) your violation of the TOS. This indemnification obligation includes payment of any attorneys’ fees and costs incurred by Mercon Optics or Mercon Optics Representatives.

5.7 Conduct: Mercon Optics does not control, is not responsible for and makes no representations or warranties with respect to any user or user conduct. You are solely responsible for your interaction with or reliance on any user or user conduct. You must perform any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any user or user conduct.

You are also responsible for your own conduct and activities on, through or related to Mercon Optics, and, if you create an account on Mercon Optics, you are responsible for all conduct or activities on, through or by use of your account.

You agree to indemnify and hold Mercon Optics and Mercon Optics Representatives harmless from and against any third-party claim, cause of action, demand or damages related to or arising out of your own conduct or activities on, through or related to Mercon Optics, and related to or arising out of any conduct or activities on, through or by use of your Mercon Optics account, if any. This indemnification obligation includes payment of any attorneys’ fees and costs incurred by Mercon Optics or Mercon Optics Representatives.

5.8 Transactions: Mercon Optics in its sole discretion, may refuse to complete any transaction that Mercon Optics has reason to believe is unauthorized or made by someone other than you, may violate any law, rule or regulation, or if Mercon Optics has reasonable cause not to honor it. Each User agrees to indemnify and hold Mercon Optics harmless for losses resulting from any use or attempted use of the services in violation of this agreement.

5.9 Rejection of Payment: Since the use of a bank account, credit card or debit card account, or the making of an electronic funds transfer may be limited by your agreement with your financial institution and/or by applicable law, Mercon Optics is not liable to any user if Mercon Optics does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an Account. Mercon Optics may post operating rules related to payment on the site and change such rules from time to time.

5.10 Cancelling a Transaction:If a transaction cannot be completed for any reason, including cancellation by Mercon Optics for any reason, Mercon Optics will notify each user in such transaction by e-mail, to the e-mail address each has provided to Mercon Optics. In Mercon Optics’s sole discretion, Mercon Optics may cancel any transaction if each user to a transaction fails to agree on the terms as required in the transaction details screens. You may cancel a transaction as provided in this agreement, on the general escrow instructions or in the transaction escrow instructions.

5.11 Quality: Mercon Optics cannot guarantee that the Software, Products or Mercon Optics Websites will always function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the Software, Products (depending on the Products used) or Mercon Optics Websites, and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply. Mercon Optics takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.

5.12 Changes to Products: Mercon Optics is constantly improving the Software and Products and may also need to change technical features from time to time in order to comply with applicable regulations. Accordingly, you acknowledge and agree that the Products and functionality of the Software may vary from time to time. Technical requirements for use of Products and Software and feature descriptions are available on the Mercon Optics Website. If you do not agree with any changes to Software and Products you may terminate your relationship with Mercon Optics in accordance with paragraph 11. You may need to upgrade to a new version in order to enjoy the benefit of certain Products. In addition, you acknowledge and agree that certain Products may be subject to usage limits or geographical restrictions, which may vary from time to time. Please check the Mercon Optics Website for details of the most up-to-date usage restrictions that apply to the Products that you are using.

5.13 Unsolicited Ideas If you send any Unsolicited Feedback to Mercon Optics through the Mercon Optics Website or otherwise, you acknowledge and agree that Mercon Optics shall not be under any obligation of confidentiality with respect to the Unsolicited Feedback.

6. OBLIGATIONS

6.1 User Account. Prior to your first use of the Mercon Optics Software, you will be asked to login using your User Account and choose a user ID and password. We recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You may only use the Software through your User Account. You are solely responsible and liable for all activities conducted through your User Account. To prevent unauthorized use, you shall keep your password confidential and shall not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. Mercon Optics takes no responsibility for your failure to comply with the obligations in this paragraph 6.1.

6.2 Lawful Use: You must use the Software, Products and Mercon Optics Websites in accordance with the laws of where you are located. In some countries there are restrictions on the download and use of the Software, Products and/or Mercon Optics Websites. It is your responsibility to ensure that you are legally allowed to use the Software, Products and/or Mercon Optics Websites where you are located.

6.3 Prohibited Use: You may not:

(a) intercept or monitor, damage or modify any communication which is not intended for you;

(b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Software, Products, Mercon Optics Websites, communication or protocols;

(c) send unsolicited communications (also referred to as ‘SPAM’, ‘SPIM’ or ‘SPIT’) or any communication not permitted by applicable law or use the Software, Products or Mercon Optics Websites for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity;

(d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way;

(e) use the Software, Products or Mercon Optics Websites to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or

(f) use (including as part of your User ID and/or profile picture) any material or content that is subject to any third party proprietary rights, unless you have a license or permission from the owner of such rights; or

(g) collect or harvest any personally identifiable information, including account names, from the Software, Products or Mercon Optics Websites;

(h) impact or attempt to impact the availability of the Software, Products or Mercon Optics Websites for example, with a denial of service (DOS) or distributed denial of service (DDoS) attack;

(i) use or launch any automated system, including without limitation, robots, spiders or offline readers that access the Software, Products or Mercon Optics Websites. Notwithstanding the foregoing, you agree that Mercon Optics grants to the operators of public search engines permission to use spiders to copy materials from the Mercon Optics Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Mercon Optics reserves the right to revoke these exceptions at any time.

6.4 User Submissions Please exercise respect when participating in any features of the Mercon Optics Websites or Software such as Forums, Blogs or email functions. You acknowledge and agree that: (i) by using the Mercon Optics Websites and/or Software you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and Mercon Optics has no responsibility to you or any third party for any user submissions that you create, submit, post or publish on the Mercon Optics Websites or through the Software; (iii) Mercon Optics does not guarantee any confidentiality with respect to user submissions, whether or not they are published (iv) Mercon Optics is not responsible for any user submissions that you may have access to through your use of the Mercon Optics Websites or Software and all User Submissions are the responsibility of the person from whom such User Submissions originated. Mercon Optics does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with User Submissions.

In connection with your user submissions, you represent and warrant that you

(i) own or have the necessary licenses, rights, consents, and permissions to use and authorize Mercon Optics to use all copyrights, trade marks, trade secrets, patents and other intellectual property or proprietary rights in and to any and all User Submissions in accordance with these Terms; and

(ii) you have the written consent, release and /or permission of each and every identifiable individual person in the User Submission to use the name and/or likeness of each and every such individual in the User Submission, to enable inclusion and use thereof in the manner contemplated by these Terms.

Notwithstanding any rights or obligations governed by the Additional Terms (as defined below) if, at any time you choose to upload or post User Submissions to the Mercon Optics Websites or through the Software (excluding Reports and excluding the content of your communications) you automatically grant Mercon Optics a non-exclusive, worldwide, irrevocable, royalty-free, perpetual, sub-licensable and transferable license of all rights to use, edit, modify, include, incorporate, adapt, record, publicly perform, display, transmit and reproduce the User Submissions including, without limitation, all trade marks associated therewith, in connection with the Mercon Optics Websites and Mercon Optics’s Software and Products including for the purpose of promoting or redistributing part or all of the Mercon Optics Websites and/or the Software or Products, in any and all media now known or hereafter devised. You also hereby grant each user of the Mercon Optics Website and/or Mercon Optics’s Software or Products a non-exclusive license to access your User Submission through the Mercon Optics Website and/or Software or Products and to use, copy, distribute, prepare derivative works of, display, perform and transmit such User Submissions solely as permitted through the functionality of the Mercon Optics Websites and/or Software or Products and pursuant to these Terms of Use. In addition, you waive any so-called “moral rights” in and to the User Submissions, to the extent permitted by applicable law.

You may not submit or publish through the Mercon Optics Website or Software any User Submissions that are libelous, defamatory, pornographic, harassing, hateful, an invasion of privacy, obscene, abusive, illegal, racist, offensive, harmful to a minor or an infringement of any intellectual property rights or a trade secret of a third party, or would otherwise violate the rights of any third party or give rise to civil or criminal liability. Furthermore, you may not submit or publish User Submissions that contain falsehoods or misrepresentations, solicit funds or services, contain advertising, promotional materials, junk mail, spam, chain letters or any form of solicitation, impersonate others or include programs that contain viruses or any other programs designed to impair the functionality of any computer. You agree not to solicit, for commercial purposes, any users of the Mercon Optics Website or Software with respect to their User Submissions. You agree not to circumvent, disable or otherwise interfere with the security related features of the Mercon Optics Website or Software or features that prevent or restrict the use of any content thereof.

6.5 Your Information: From time to time, Mercon Optics may request information from you for the purpose of supplying the Software or Products to you. You shall ensure that any such information is complete, up-to-date and accurate.

6.6 No Reselling. The Software and Products are for your individual use. You shall not resell or commercialise the Software and/or Products to any third party.

6.7 Export Restrictions: The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use, destination restrictions issued by national governments or similar bodies, and restrictions on embargoed nations.

6.8 Obligations of Sellers: On the transaction detail screens, each seller to a transaction must designate an account to which payment for the transaction will be made. Each Seller authorizes to initiate credit entries to such seller’s account for payment of the purchase price, or applicable balance due, and to debit Seller’s Account to discharge Seller’s obligations. Each Seller in a Transaction shall deliver the items set forth in transaction detail screens directly to the Buyer (or Buyers), at the address specified by such Buyer as shown on Mercon Optics and on the terms and conditions set forth in the transaction instructions. Mercon Optics shall designate a delivery service that provides a confirmation of delivery and shall provide a tracking or reference number for the shipment of the goods. Seller gives Mercon Optics permission to act as its agent in communicating with the shipping company regarding the notice of the delivery of the goods. In the event Mercon Optics does not receive notice of shipment from Seller within ten (10) calendar days of notification from Mercon Optics’s notice to Seller to ship the items, Seller authorizes Mercon Optics to return the escrowed funds (excluding Mercon Optics fees) to Buyer. In the event of a return of the items by Buyer, Seller shall notify Mercon Optics of the receipt of the returned items. Upon receipt of such notice from Seller, the Seller’s five (5) day inspection period shall commence. In the event Seller accepts the returned items within the inspection period or fails to act within the inspection period, Mercon Optics shall remit the escrowed funds (excluding Escrow.com fees) to Buyer. If Seller notifies Mercon Optics of its non-acceptance of any returned items within the Seller’s inspection period, then Mercon Optics will retain the escrow funds pending resolution of the dispute or take other action as authorized. Notwithstanding anything to the contrary above, if all users to a transaction agree on the transaction detail screens that there is no shipping required, then no party hereto will have any obligation under this Agreement with respect to shipping.

6.8 Obligations of Buyers:On the transaction detail screens, Buyer must designate a payment mechanism and an Account from which the purchase price and related fees (unless such fees are to be paid by Seller) will be obtained for the deposit into escrow. Depending on the amount of the transaction and the currency selected for the Transaction, Buyer may remit the necessary funds via various methods, which may include corporate credit card, charge card, debit card or purchasing card, or bank transfer. In the case of bank transfers, Buyer will initiate the wire to an account designated by Mercon Optics on or before the date set forth in the transaction detail screens. Regardless of the payment method, Buyer authorizes Mercon Optics and Mercon Optics authorized agents to initiate credit or debit transactions, as applicable, to obtain the purchase price and fees due for a Transaction and to initiate any debit or credit entries or reversals, as the case may be, as may be necessary to correct any error in a payment or transfer and to discharge Buyer’s obligations under Section 22 of this Agreement. Mercon Optics will deposit funds received from Buyer into an escrow trust account maintained by Mercon Optics (the “Escrow Account”). Unless otherwise requested as specified in the following sentence, escrowed deposits do not earn interest for Buyer or Seller. If you anticipate an extended closing of the Transaction, then you may request and approve an instruction to have Mercon Optics place Buyer’s funds into an interest bearing account for the benefit of Buyer or Seller. If interest is to accrue to the benefit of the Seller, then both Buyer and Seller must request and approve the establishment of the interest bearing account. If this request is made, then Mercon Optics will charge the account of the party to whom the interest accrues an additional nonrefundable service charge of $100.00, which must be paid in advance.

Buyer shall notify Mercon Optics of the receipt or non-receipt of the items on the date the merchandise is received or the Buyer Inspection Period is started. Buyer shall notify Mercon Optics of the Buyer’s acceptance or rejection of the items before the Buyer’s Inspection Period expires. Upon receipt of notice from Buyer that the items have been received and accepted, Mercon Optics shall transfer the payment amount (less any amount payable to Mercon Optics for Mercon Optics fees) to Seller’s Account. Transfer to a Seller generally will be initiated within the next business day from the day on which notice of acceptance of the items is received from the Buyer. If Buyer has not notified Mercon Optics of the non-receipt or rejection of the items during the Buyer’s Inspection Period, then Buyer authorizes Mercon Optics to remit the escrowed funds (excluding Mercon Optics fees) to the Seller. Buyer shall follow the procedures set forth on the Site in the event the items are rejected.

6.8 Obligations of Mercon Optics: Mercon Optics and its agents are obligated to perform only those duties expressly described in this agreement. Mercon Optics shall not be liable for any error in judgment, for any act taken or not taken, or for any mistake of fact or law, except for gross negligence or willful misconduct. Mercon Optics may rely upon any notice, demand, request, letter, certificate, agreement or any other document which purports to have been transmitted or signed by or on behalf of a User indicated as the sender or signatory thereof and shall have no duty to make any inquiry or investigation. In the event that Mercon Optics is uncertain as to Mercon Optics duties or rights under this agreement, receives any instruction, demand or notice from any user or financial institution which, in Mercon Optics’s opinion, is in conflict with any of the provisions of this agreement, or any dispute arises with respect to this agreement or the escrowed funds, Mercon Optics may (i) consult with counsel of our choice (including our own attorneys) and any actions taken or not taken based upon advice of counsel shall be deemed consented to by you, or (ii) refrain from taking any action other than to retain the funds in escrow for delivery in accordance with the written agreement of the users, the final decision or award of an arbitrator pursuant to an arbitration commenced and conducted in accordance with the general escrow instructions or a final, non-appealable judgment of a court of competent jurisdiction, or (iii) discharge our duties under this Agreement by depositing all funds by interpleader action with a court of competent jurisdiction in accordance with the procedures outlined in the general escrow instructions.

7. PROPRIETARY RIGHTS

7.1 The Software, Products and Mercon Optics Websites contain proprietary and confidential information that is protected by intellectual property laws and treaties.

7.2 The content and compilation of content included on the Mercon Optics Websites, (excluding User Submissions) such as sounds, text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of Mercon Optics, its affiliates or licensors. Mercon Optics reserves all rights not expressly granted in the Mercon Optics Websites.

7.3 Mercon Optics and/or its licensors retain exclusive ownership of the Software, Products and Mercon Optics Websites and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardize, limit or interfere with Mercon Optics’s intellectual property rights in the Software, Products and/or Mercon Optics Websites.

8. CHARGES

8.1 Charges for Mercon OpticsFees: Unless otherwise agreed upon by each user in the transaction, Selleragrees to pay the fees for the services that are disclosed on the Site at the time the completed transaction instructions are agreed to by all such users, as well as any other fees, including, without limitation, third party service fees (e.g., shipping, appraisal, inspection, etc.). Once paid, Mercon Optics fees are nonrefundable. Mercon Optics fees may change from time to time in Mercon Optics’s absolute and sole discretion. Mercon Optics is not responsible for payment of any sales, use, personal property or other governmental tax or levy imposed on any items purchased or sold through the services or otherwise arising from the transaction.

8.2 Third Party Charges: Using the Software on mobile applications will use some of the data allowance available on the data package to which you have subscribed with your mobile network operator. Out-of-country usage may lead to significantly higher costs than regular usage, and you are solely responsible for keeping yourself informed and paying for possible roaming and other applicable charges levied by your mobile network operator.

9. ENDING YOUR RELATIONSHIP WITH MERCON OPTICS

9.1 You may terminate your relationship with Mercon Optics at any time and without recourse to the courts by requesting closure of your User Account, ceasing to use the Software, Products and/or Mercon Optics Websites and cancelling any recurring payments.

9.2 Mercon Optics may terminate its relationship with you, or may terminate or suspend your use of the Software, User Account(s), Products or Mercon Optics Websites at any time and without recourse to the courts:

(a) if you are in breach of these Terms;

(b) if Mercon Optics reasonably suspects that you are using the Software, the Products and/or Mercon Optics Websites to break the law or infringe third party rights;

(c) if Mercon Optics reasonably suspects that you are trying to unfairly exploit or misuse the refund policy, or any of our policies.

(d) if Mercon Optics reasonably suspects that you are using our Products, Software and/or Mercon Optics Websites fraudulently or that your User Account is being used by a third party fraudulently;

(e) in respect of a particular Product, on thirty (30) days notice if Mercon Optics decides to cease offering that Product;

(f) immediately, if required due to a change in laws/regulation by a regulator or authority with a lawful mandate, or by any of Mercon Optics’s partners;

(g) on thirty (30) days notice if Mercon Optics decides to cease offering the Software to users in your jurisdiction generally.

9.3 Mercon Optics shall effect such termination by preventing your access to your User Account, the Software, Products and/or Mercon Optics Websites (as applicable). We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.

9.4 Consequences of Termination: Upon termination of your relationship with Mercon Optics: (a) all licenses and rights to use the Software, Products and/or Mercon Optics Websites shall immediately terminate; (b) you will immediately cease any and all use of the Software, Products and/or Mercon Optics Websites; and (c) you will immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control.

10. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY

10.1 For the purposes of this paragraph 12, “Mercon Optics” includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.

10.2 No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SOFTWARE, PRODUCTS AND MERCON OPTICS WEBSITES ARE PROVIDED “AS IS” AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; MERCON OPTICS DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, PRODUCTS AND/OR MERCON OPTICS WEBSITES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. MERCON OPTICS FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, PRODUCTS AND/OR MERCON OPTICS WEBSITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES MERCON OPTICS WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SOFTWARE.

10.3 Nothing in this these Terms shall exclude or restrict Mercon Optics’s liability for (a) death or personal injury, (b) loss resulting from Mercon Optics’s wilful default or gross negligence, (c) fraud or deliberate misrepresentation, or (d) any liability which cannot be limited or excluded by applicable law.

10.4 No Liability: YOU ACKNOWLEDGE AND AGREE THAT MERCON OPTICS WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO MERCON OPTICS, IN CONNECTION WITH OR ARISING FROM YOUR USE OF MERCON OPTICS WEBSITES, OR THE INTERNET COMMUNICATIONS SOFTWARE OR OTHER SOFTWARE THAT IS PROVIDED FREE OF CHARGE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SUCH SOFTWARE AND/OR MERCON OPTICS WEBSITES IS TO IMMEDIATELY DEINSTALL SUCH SOFTWARE AND CEASE USE OF SUCH SOFTWARE AND/OR MERCON OPTICS WEBSITES.

10.5 Limitation of Liability: Subject to paragraphs 12.3 and 12.4 above, Mercon Optics shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to Mercon Optics, for:

(a) any indirect, special, incidental or consequential damages; or

(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or

(c) any damage to or corruption of data (whether direct or indirect);

(d) any claim, damage or loss (whether direct or indirect) arising from or relating to:

  • • any product or service provided by a third party under their own terms of service;
  • • any Third Party Technology;

iii.            any third party website.

10.6 Subject to paragraphs 10.3 – 10.5 above, Mercon Optics’s total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability)) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF FIVE THOUSAND US DOLLARS IN ALL CASES.

10.7 If any third party brings a claim against Mercon Optics in connection with, or arising out of (i) your breach of these Terms; (ii) your breach of any applicable law of regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); (iv) your User Submissions or (v) your complaint in relation to any User Submission, you will indemnify and hold Mercon Optics harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim.

11.THIRD PARTY WEBSITES PRODUCTS AND SERVICES

11.1 Third parties may offer products or services via the Software and/or Mercon Optics Websites, including games, applications, images, ring tones, or avatars. Whilst Mercon Optics takes no responsibility for such products or services, if you encounter any problems with payment for or download, use of installation of such products or services, Mercon Optics will use commercially reasonable endeavours to assist or resolve the problems. The third party products or services may be subject to the third party provider’s own terms and privacy policy that you may have to accept upon download or installation. You should review such terms before making any purchase or using any third party product or service and Mercon Optics shall not be responsible for your failure to do so.

11.2 You acknowledge and agree that any third party product information and pricing that is shown on the Mercon Optics Websites regarding third party products and services is given to Mercon Optics by the applicable third party merchant (“Merchant”). The Merchant has the ability to change their pricing or terminate their product availability at anytime. Mercon Optics is not involved in any transactions between you and any Merchant whose products and/or services are listed on the Mercon Optics Websites. Mercon Optics does not control, is not responsible for and does not guarantee: (i) the pricing, quality, performance, availability or terms and conditions of purchase of products or services provided by the Merchant; (ii) any payment transactions, delivery, returns or after sales activities related to the products or services purchased on the Merchants’ websites; (iii) the availability of the Merchant’s websites; (iv) the completeness, truth or accuracy of any advertising or other materials on, or available from, the Merchants’ websites, nor any listing or other content about such products and services displayed on the Mercon Optics Websites; (v) links to the Merchants’ websites that are featured on the Mercon Optics Websites. Any questions, complaints, or claims related to any product or service provided by a Merchant should be directed to the applicable Merchant.

11.3 The Software and Mercon Optics Websites may include hyperlinks to other third party websites. Mercon Optics is not responsible for such third party websites or the availability of such websites and does not endorse any content or material on such third party websites. Your use of each of these third party websites is subject to the terms and conditions posted on the applicable website.

12. YOUR CONFIDENTIAL INFORMATION AND YOUR PRIVACY

Mercon Optics is committed to respecting your privacy and the confidentiality of your personal information. We will process your personal information, the traffic data and the content of your communication(s) in accordance with our Privacy Policy:  www.Mercon Optics.com/legal/privacy

13. HOW TO CONTACT MERCON OPTICS

13.1 To contact Mercon Optics in relation to the Mercon Optics Software or “Mercon Optics” branded Products, please submit a support request to support@Mercon Optics.com.

13.2 If you contact Mercon Optics by any means other than as set out in paragraphs 13.1, your request may not be acknowledged.

14. MISCELLANEOUS

14.1 You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with Mercon Optics.

14.2 For your convenience, Mercon Optics may provide you with a translation of the English language version of these Terms. In the event of any inconsistency between a non-English version of these Terms and the English version, the English version shall govern your relationship with Mercon Optics.

14.3 These Terms constitute the entire agreement between you and Mercon Optics with respect to your use of the Software, Products and/or Mercon Optics Websites and replace any prior agreements between you and Mercon Optics with respect to the Software, Products and/or Mercon Optics Websites.

14.4 If any provision of these Terms (or part of it), is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Terms without affecting the legality, validity or enforceability of the remainder of the Terms.

14.5 The failure by Mercon Optics to exercise, or delay in exercising, a legal right or remedy provided by these Terms or by law shall not constitute a waiver of Mercon Optics’s right or remedy. If Mercon Optics waives a breach of these Terms, this shall not operate as a waiver of a subsequent breach of the Terms.

14.6 You may not assign these Terms or any rights or obligations contained in them. Mercon Optics may, without prior notice, assign these Terms or any rights or obligations contained in them to any third party.

14.7 This paragraph 14, along with paragraphs, 4.2, 12 and any other provisions, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination of the Terms.

14.8 You acknowledge and agree that if Mercon Optics is unable to provide the Software, Products and/or Mercon Optics Websites as a result of a force majeure event, Mercon Optics will not be in breach of any of its obligations towards you under these Terms. A force majeure event means any event beyond the control of Mercon Optics.

14.9 These Terms shall be governed by and interpreted in accordance with the laws of the United Statesand shall be subject to the jurisdiction of the courts of the state of Washington.

 

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE OR USE THE SOFTWARE, PRODUCTS AND/OR MERCON OPTICS WEBSITES, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO MERCON OPTICS THE RIGHTS SET FORTH HEREIN.

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