Terms of Use
These Terms of Use constitute an agreement ("Agreement") between Mercury FON, LLC., a Virginia limited liability company ("Mercury FON™ ", "we" or "us"), and the end-user customer ("Customer", "you" or "user") for all of Mercury FON™ 's telecommunication services ("Service" or "Services") relating to your assigned toll free and/or local number account ("Account"). This Agreement covers and applies to all of Mercury FON™ 's free and paid service plans. If you are not willing to be bound by this Agreement in its entirety, do not click the box next to "I Agree to the Terms of Use" box.
1. ACCEPTANCE
Please be aware that any of the following actions, without limitation or qualification, constitutes your acceptance and agreement to be bound by and to comply with all of the terms and conditions of this Agreement:
1.1 Your initialization of the Service through use of your Account,
1.2 Your registering for Service as part of the registration process as part of the free-trial or pay-for-service, either on the telephone or through the Mercury FON™ website (www.MercuryFON.com) or through any of the Mercury FON™ subdomains (e.g. www.myMercuryFon.com) (the Mercury FON™ website and subdomains are collectively referred to herein as, the "Site");
1.3 providing your credit card number and billing information,
1.4 clicking the box "I Agree to the Terms of Use"
1.5 through the use of your Account and PIN (defined below); or
1.6 your use of the Site.
2. MERCURY FON™ SERVICES
This Agreement applies to both Mercury FON™ telecommunication and facsimile services and Mercury FON™ refers to all telecommunications and facsimile services provided by us. Unless expressly noted otherwise herein, the term "Service" or "Services" includes both Mercury FON™ and Mercury Fax™ .
3. VOICEMAIL, BROADCASTING AND FAX SERVICES
Mercury FON™ has no obligation to store your voicemails, sent/received calls and/or faxes and does so only as a convenience to you. You agree that Mercury FON™ has no responsibility or liability whatsoever for the deletion or failure to store any voicemail or fax messages, any call-log information and/or other communications maintained or transmitted by the Services.
4. OWNERSHIP
4.1 All Materials (defined below), Services, Accounts and content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Services ("Content"), are provided by Mercury FON™ unless indicated otherwise. All intellectual property rights in the Materials, Content, Services and Accounts (including copyrights, trademarks, service marks, trade secrets and patents) are the property of Mercury FON™ . Mercury FON™ retains all copyrights in the individual pages, and their components, and collective works available at the Site.
4.2 The Materials, Content, Services and Accounts are copyrighted and are protected by federal and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way without Mercury FON™ 's prior written permission.
4.3 Trademarks and copyrights including Mercury FON, the Mercury FON™ character and elements and the Mercury FON™ logo are the property of Mercury FON™ . All other names and trademarks are the property of their respective holders.
4.4 Any new features provided by Mercury FON™ that augment or enhance the current Services shall also constitute "Services" and shall be subject to these terms and conditions.
4.5 You may not, and shall not allow any third party to, copy, distribute, sell, resell, license, sub-license, reproduce, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services and/or any of Mercury FON™ 's technology or software for any purpose whatsoever. You also shall not allow any third party to access the Services for any purpose whatsoever.
4.6 You may not remove the copyright notices and other proprietary legends from the Services and this agreement grants you no rights to use any trademark, copyright notice or other proprietary legends.
4.7 You may download one copy of the materials (the "Materials") and/or Content found on this Site for use with the Services and/or Accounts. This permission constitutes a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from us and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts within your control or possession.
5. TERM
The term of this Agreement begins on the date we activate Services for your Account. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof. If you agree to a six month agreement, we will waive account set-up fees. After this six month period, this Agreement will revert to a month to month term.
6. ORDER ACCEPTANCE POLICY
Acceptance of the submission of your order on the Site or receipt of an email confirmation signifies Mercury FON™ 's acceptance of your order and the provision of your Account. Mercury FON™ may verify orders to prevent fraud. Should Mercury FON™ suspect the placement of a fraudulent order (even after you have received an email confirmation of acceptance of your order and the provision of your Account), Mercury FON™ may contact you by email or telephone regarding such suspected fraudulent order and, in Mercury FON™ 's sole discretion, interrupt, restrict or terminate your Account without notice to you.
7. REGISTRATION PROCEDURES
Upon signing up for the Service, you agree to provide true, accurate, current and complete name, contact information, Registered Location, and other data to Mercury FON™ and at subsequent times as requested by Mercury FON™ . If you provide information that is, or that Mercury FON™ suspects to be, false, inaccurate, not current or incomplete, Mercury FON™ has the right to suspend or terminate the Services and refuse any and all current or future use of all Services, or any portion thereof. At all times, you shall maintain and promptly update registration data as applicable.
Upon completion of all registration information and acceptance of this Agreement, Mercury FON™ will provide you with a password, user ID, and when applicable, a PIN and telephone number. You are solely responsible for maintaining the confidentiality of your password and PIN, and, at all times, you will be solely responsible for all transactions and activities that occur as a result of your disclosure of such password and/or PIN, even if such transactions and/or activities were not authorized by you. You shall at all times be responsible and liable for any transactions or activities that occur on your Account. You shall immediately notify Mercury FON™ if any unauthorized use of your Account has occurred or of any other breach of security. In no event shall Mercury FON™ be liable for any unauthorized activities with your Account.
8. USE OF SERVICES AND ACCOUNT
You agree not to use the Materials, Content, Services and your Account for any unlawful or abusive purpose or in any way which interferes with our ability to provide Services to our customers, or damages our property.
Certain pages on the Site or the access to the Services and/or your Account may be accessed only by use of a Personal Identification Number ("PIN"). You are solely responsible for all uses of the Site and/or the Services and/or your Account with your PIN. If you believe your Services or Accounts have been fraudulently used, you agree to immediately notify us of such unauthorized use. We have the right to interrupt, restrict or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.
9. CUSTOMER REPRESENTATIONS
You represent and warrant that:
9.1 you are at least 18 years of age or, as applicable, the age of majority in the country, state or province in which you reside,
9.2 you possess the legal right and ability to enter into this Agreement.
9.3 your name, user name, contact information and Registered Location are true and correct.
9.4 You accept financial responsibility for your use of the Services (as well as for use of your account by others, including minors living with you).
10. REQUIREMENTS FOR USE
In order to use the Service, you agree, at your sole expense, to:
10.1 provide and be responsible for payment for all equipment necessary to establish a connection to the Internet and/or to the Publicly Switched Telephone Network ("PSTN"), as may be required to use the Service;
10.2 provide for access to the Internet and/or PSTN and pay any Internet connection service fees associated with such access;
10.3 supply and pay for all phone service features required for your use of the Service.
11. AUTHORIZED USES; PROHIBITED USES
You agree to use the Service only for lawful purposes and that you shall not, at any time, use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide Service to other customers, prevents or restricts other customers from using the Service, or damages any Mercury FON™ or other customer's property. Specifically, and without limiting the generality of the foregoing, you agree to the following:
11.1 You will not use the Service for illegal purposes.
11.2 You accept sole liability and responsibility for any transmissions sent through the Service. Mercury FON™ simply acts as a passive conduit for you to send and receive communications and information of your own choosing and Mercury FON™ has no control over the content of any transmission nor will it be liable for such content.
11.3 Mercury FON™ has the right to restrict termination to any telephone numbers in its sole discretion. These may include, without limitation, certain geographic locations, special services numbers, satellite telephony services, and other call forwarding services.
11.4 You shall not use the Services to create or distribute any images, sounds, messages or other materials which are obscene, harassing, racist, malicious, fraudulent, infringing or libelous, nor use the Services for any activity that may be considered unethical, immoral, violative of any third party's rights, or illegal.
11.5 You will abide by all rules, regulations, procedures and policies of Mercury FON™ and any policies of all third-parties' networks connected to the Services and you shall not interfere with or disrupt such networks.
11.6 You shall not attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means:
11.7 You shall not interfere with another customer's or third-party’s use and enjoyment of the Service or use the Service in any manner which disrupts, prevents or restricts any other customer from using the Service.
11.8 Your use of the Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws and false advertising). You accept sole responsibility for all acts or omissions that occur under your account or password, including the content of your transmissions through the Service. By way of example, and not as a limitation, you agree not to:
11.8.1 Use the Service in violation of any US law regarding the transmission of technical data exported from the United States.
11.8.2 Use the Service in connection with chain letters, junk email, voice mail, faxes, spamming or any duplicative or unsolicited messages (commercial or otherwise).
11.8.3 Harvest or otherwise collect information about others, including email addresses, without their consent.
11.8.4 Transmit any material that contains viruses, time bombs, trojan horses, worms, or any other programs that may be harmful or dangerous.
11.8.5 Create a false identity (i.e., "ID Spoofing") or forged email address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message.
11.8.6 Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademarks, copyrights or moral / publicity rights.
11.9 This Agreement constitutes notice, and you acknowledged such notice, that, in accordance with the Digital Millennium Copyright Act, Mercury FON™ may, in appropriate circumstances, terminate the Service of any user who infringes the copyrights of third-parties. Mercury FON'TMs election not to terminate or suspend your rights to use the Service for only a single infringement shall not constitute a waiver of its rights to do so upon subsequent infringement, Mercury FON™ may or may not, in its sole discretion, attempt to contact you prior to such termination or suspension.
12. CHARGES
12.1 You agree to pay all charges to your Account for Services, including but not limited to, long distance and directory assistance charges, regulatory and government fees, and for all taxes and surcharges, including regulatory recovery fees, imposed on you or us as a result of your use of the Services.
12.2 Each service plan, for both toll-free and local numbers, has (i) a flat monthly service fee (this service fee, which is posted on the Site, is the basic charge associated with your Service. This fee includes the calling charges defined by your Service plan within the continental United States and Canada (excluding Alaska, Hawaii and United States territories such as Puerto Rico); (ii) a certain number of "free" minutes to be used in the continental United States and Canada (excluding Alaska and Hawaii and United States territories such as Puerto Rico) as posted on the Site, and (iii) an additional minute rate (if you exceed the number of calling minutes on your Service plan, Mercury FON™ will bill you for the minutes you use above your allowance) as posted on the Site.
12.3 International calls (not including calls to Canada) and calls to areas outside the continental United States (including, but not limited to, Alaska and Hawaii and United States territories such as Puerto Rico), including calls forwarded from the continental United States and Canada to such international areas, are charged based on the international outbound rates posted on the Site. International calls (not including calls from Canada) and calls from areas outside the continental United States (including, but not limited to, Alaska and Hawaii and United States territories such as Puerto Rico), including calls forwarded from such international areas into the continental United States and Canada, are charged based on the international inbound rates posted on the Site.
12.4 Mercury FON™ may charge initiation fees and additional fees for optional features, add-ons, and other added products and Services.
12.5 Mercury FON™ reserves the right to change its pricing and/or billing practices in its sole discretion. Mercury FON™ bills usage charges in six (6) second increments with an eighteen (18) second minimum, or as otherwise stated by your Service plan.
12.6 Service plans are charged once a month or upon the usage of an additional 1000 minutes, whichever comes first.
12.7 Customers with past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or updating their credit or debit card on file.
13. PLAN CREDITS AND CHARGEBACKS
13.1 Generally. Mercury FON™ will charge Customers with past due balances on previous or multiple accounts the full balance upon opening a new account or updating their credit card on file. Mercury FON™ also reserves the right to charge termination and transfer fees consistent with each plan's terms and conditions. Further, upon termination of your Account for any reason, all unused credits or pre-paid minutes shall expire in their entirety and Mercury FON™ will not refund or prorate any unused credits or minutes.
13.2 Plan Credits. Mercury FON™ offers several different Service plans. Some of the plans provide for a fixed number of monthly credits. You may use credits for domestic, international or VoIP calling and faxing. However, all credits are quoted for domestic minute usage and, if you use credits for international or VoIP calling, we may charge you higher rates. Further, if you purchase additional credits and use them for international or VoIP calling, additional charges may apply. Further, international rates may change without notice. You should refer to your specific Service plan details regarding all domestic, international and VoIP charges and all other terms and conditions of your Service plan.
13.3 Credits, bonus minutes and other promotional incentives and the like have no monetary value. All credits, bonus minutes and other promotional incentives are personal to you and your Account and may not be sold, transferred, assigned or used by another user or with another user’s Account.
13.4 Chargebacks. Mercury FON™ strongly discourages the use of chargebacks. If you believe your Account has been created fraudulently or in error, you must follow the following procedures no later than 3 days after you first discover the Account was fraudulently or erroneously created: (1) you must contact via email our customer support department at support@MercuryFON.com. The subject line of the email must state "Chargeback" and you must provide the following information in the email: (a) your name, contact information, and the Mercury FON™ Account telephone number in question, (b) the date that the Account in question was created, (c) the credit card account number used to open the Account, and (d) the total amount charged to the Account. Our customer support representatives will contact you to attempt to resolve the matter; and (2) if you are not able to resolve the matter with our customer support group, you must then contact our legal department via email at legal@MercuryFonTM.com to try to resolve the matter. If you take any action to reverse your Account charges with your credit card company without first following both of the procedures set forth herein, we reserve the right to take legal action against you for damages, including, among other things, fraud.
14. BILLING AND PAYMENT
Any applicable initiation fees and monthly recurring charges are billed in advance of the month of usage. We will also bill you for additional minutes you use (which exceeded the number of calling minutes in your plan); either on the month following such usage or upon the usage of an additional 1000 minutes, whichever comes first. We will bill usage charges in arrears. Unless otherwise agreed to in writing, you are to pay for all charges by credit or debit card. We will automatically bill credit or debit cards monthly or upon the usage of an additional 1000 minutes, whichever comes first, and no additional notice or consent will be required for billings to that credit or debit card or account. You will advise us of any changes to your credit or debit card account, such as account number, billing address, or expiration date changes. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and pro-rations. Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per annum or (b) the highest amount allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked "Paid in Full") shall not waive any of our rights to collect the full amount due under this Agreement. Notice of any disputes must be in writing and received by us at our address within thirty (30) days after the invoice date or you will waive any objection.
15. DEFAULT/TERMINATION
15.1 Unless you have agreed to the six month service period, you may terminate this Agreement at any time with thirty (30) days notice in accordance with the immediately following procedure. If you chose the six month service period option, you may terminate this Agreement at the end of the six month service period, or at any time thereafter, in either case with thirty (30) days notice in accordance with the immediately following procedure. You must give such notice of termination by "Submitting a Ticket" to our Billing Department. You can "Submit a Ticket" on the Support Center page of the Site at http://www.MercuryFon.com/contact-us. Upon receipt of your Ticket, indicating your desire to terminate this Agreement, we will generate a Cancellation Ticket to cancel your Account. We will send to you, by e-mail, a Cancellation Ticket Number to confirm that your termination notice was received. If you do not receive a Cancellation Ticket Number, your termination notice may not have been received by us. You may contact our Customer Support Department at 1-888-915-6366 to verify the generation of a Cancellation Ticket Number. Your termination request will take effect on the first day of the next billing cycle. Because minutes are paid in arrears, a final payment for minute usage will be processed on your next billing date after termination.
15.2 We may terminate this Agreement at any time without notice as provided below. Upon termination, whether by you or by us, we will not refund or prorate service fees, set up charges, or additional charges incurred.
15.3 If you fail to pay any amount owed to us within 5 days after the due date, or if you have in the past failed to pay amounts due us or an affiliate of ours, or if you breach any representation to us or fail to perform any of the promises you have made in this Agreement, or if you are subject to any proceeding under the Bankruptcy Act or similar laws, you will be in default and we may, in our sole discretion and with or without prior notice, restrict or terminate Services and/or terminate this Agreement, in addition to all other remedies available to us.
15.4 Upon termination of this Agreement and/or your Services, your right to use the Services immediately ceases. You shall have no right and we will have no obligation thereafter to forward any unread or unsent messages to you or any third party. We may require reactivation charges to renew Services after termination or suspension. Upon termination, you are responsible for paying all amounts and charges owing under this Agreement.
15.5 Should your credit or debit card be declined for any reason, we will attempt to charge it again in five (5) days, and if necessary, ten (10) days. If the third attempt to bill your credit or debit card fails, We will terminate your account on the tenth (10th) day and we will notify you of such termination by email, by message sent to your voicemail box, or by telephone.
15.6 We may terminate any Account if we cannot confirm an order by phone and do not receive any replies from the account holder. We will require a credit or debit card authorization form to reactivate such accounts.
15.7 We reserve the right to immediately disconnect or modify your Service if we determine, in our sole discretion, that your use of the Service violates or at any time violated this Agreement.
15.8 To maintain or improve the Services, to prevent fraud, or for any other reason determined by Mercury FON, at its sole discretion, Mercury FON™ may restrict, suspend, terminate or modify your Service with or without notice.
15.9 Upon any termination in accordance with the foregoing, Mercury FON™ may immediately deactivate or delete your Account and all related information and files in your Account, reassign any telephone numbers associated with the account, and/or bar any further access to such files, information, or the Services.
15.10 Mercury FON™ shall not be liable to you or any third party for any reason for terminating your use or access to Services.
15.11 Outbound calling credit purchased by you will remain effective and shall not expire for as long as your Account is active and in good standing, as determined by Mercury FON™ in its sole discretion.
16. ACCOUNT CHANGES
You may change Service features or Service plans by notifying us in writing or by telephone. All requests need to provide name, address, account number, and administrative PIN or be submitted from the original email address on file.
17. OWNERSHIP OF TOLL-FREE NUMBER
You are the owner of any toll-free telephone number transferred by you to Mercury FON™ . Prior to termination of your Account for any reason, you may request to transfer your toll-free number to another carrier at no extra charge. If you fail to transfer your toll-free number to another carrier prior to terminating your Account, then following the termination of your Account, your toll-free number becomes property of Mercury FON™ . It is your responsibility to have your toll-free number transferred to another carrier prior to canceling your Account. For any account in default past 10 days, the number automatically becomes property of Mercury FON™ . If you ordered your toll-free number from Mercury FON, that number can be ported to another carrier for a $100 fee. Instant vanity searches are for Mercury FON™ customer use only. All search results are reserved automatically to ensure availability for our customers and will not be available to purchase from any other toll-free provider for 1 to 4 weeks
18. OWNERSHIP OF LOCAL NUMBERS
18.1 You are the owner of any local telephone number transferred by you to Mercury FON™ ("Transferred Local Number"). Prior to termination of your Account for any reason, you may request to transfer your Transferred Local Number to another carrier at no extra charge. If you fail to transfer your Transferred Local Number to another carrier prior to terminating your Account, then following the termination of your Account, your Transferred Local Number becomes property of Mercury FON™ . It is your responsibility to have your Transferred Local Number transferred to another carrier prior to canceling your Account.
18.2 You understand and agree that you are not the owner of any local telephone number assigned to you by Mercury FON™ ("Assigned Local Phone Number"). Ownership of any Assigned Local Phone Number is vested solely in Mercury FON™ (who will assign or re-assign such numbers to you for your use during the term of this Agreement).
18.3 You understand and agree that (a) Mercury FON™ may from time to time need to change your Assigned Local Phone Number (due to an area code split or for any other reason outside of Mercury FON™ 's control) and (b) following the termination of your Account for any reason you will no longer have access to your Assigned Local Phone Number. In either case, your Assigned Local Phone Number may be re-assigned immediately to another customer and you agree that Mercury FON™ will not be liable for damages (including consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contract, tort or other grounds, even if Mercury FON™ has been advised of the possibility of damages.
19. MODIFICATION
19.1 Prices or Billing Terms. Mercury FON™ reserves the right, at any time, to change its prices and billing methods for Materials, Content, Services and Accounts, effective immediately upon posting on the Site or by e-mail delivery to you.
19.2 In General. We may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of Mercury FON™ ), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (www.MercuryFON.com). If you do not agree to a significant change, you may terminate this Agreement by submitting a ticket within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment by you will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original.
20. ASSIGNMENT
We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of Mercury FON™ to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
21. UNSOLICITED ADVERTISEMENTS
21.1 At Mercury FON™ 's option and without further notice, Mercury FON™ may use technologies and procedures, such as filters, that may terminate such unsolicited advertisements without delivering them. If you believe that you are in receipt of an unsolicited advertisement and the solicitation contains a telephone number, fax number, or other contact information to "unsubscribe" from receipt of additional unsolicited communications and junk faxes, you are required to unsubscribe. You hereby release and agree to hold harmless Mercury FON™ from and against any damages or liabilities of any kind related to any voicemail, broadcast and/or fax spam or solicitations that you may send and/or receive using the Services. You further agree that you are not permitted to "opt in" to receive any voicemail, broadcast or fax advertisements on your Account other than Mercury FON™ solicitations.
21.2 The transmission of unsolicited calls, using the Service for broadcasting, or transmitting unsolicited fax advertisements is illegal under federal law, including the Federal Telephone Consumer Protection Act of 1991 (http://ftp.fcc.gov/cgb/consumerfacts/unwantedfaxes.coml), and a number of similar state laws. Distribution of unsolicited voicemail, broadcast and fax advertisements through the Services is prohibited. You shall not use the Service to send or transmit any unsolicited communications or advertisements and understand that, if you do, Mercury FON™ may immediately terminate your right to use the Services without any liability of any kind.
22. WARRANTY DISCLAIMER
23. THE SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND Mercury FON™ MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. Mercury FON™ MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OF PROPRIETARY RIGHTS. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES SHALL BE BORNE SOLELY BY YOU. THIS SECTION 22 SHALL SURVIVE TERMINATION OF THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:
23.1 Mercury FON™ MAKES NO WARRANTY ON UP-TIME, MEAN-TIME BETWEEN FAILURES, QUALITY OF SERVICE, THE QUALITY OF VOICE OR FAX COMMUNICATIONS OR THE USE My Mercury FON™ web portal.
23.2 Mercury FON™ MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. Mercury FON™ IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL.
23.3 Mercury FON™ DOES NOT WARRANT THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF THE SERVICES OR ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES ARE AT YOUR SOLE RISK AND DISCRETION AND Mercury FON™ WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY.
23.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Mercury FON™ , ITS EMPLOYEES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
23.5 ALTHOUGH Mercury FON™ MAKES REASONABLE EFFORTS TO ENSURE THAT VOICEMAILS AND FAX TRANSMISSIONS ARE SECURE, Mercury FON™ MAKES NO GUARANTEES OF SECURITY.
25.6 YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
25.7 SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU
24. LIMITATION OF LIABILITY
IN NO EVENT SHALL MERCURY FON™ , ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO:
24.1 YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF Mercury FON™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
24.2 INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, Mercury FON™ SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND Mercury FON™ AGREE THAT IN NO EVENT SHALL Mercury FON™ 's LIABILITY TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY. ?
24.3 YOU AND Mercury FON™ AGREE THAT THIS AGREEMENT, AND IN PARTICULAR THIS SECTION 23 OF THIS AGREEMENT, ("LIMITATION OF LIABILITY"), REFLECTS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND Mercury FON™ . YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, Mercury FON™ WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
25. INDEMNITY
YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS Mercury FON™ , ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF Mercury Fon™ OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
26. EMERGENCIES
Mercury FON™ IS NOT A "DIAL-TONE" PROVIDER. IN THE EVENT OF AN EMERGENCY WHILE USING YOUR SERVICES, HANG UP AND DIAL "911". YOU MUST USE THE TELEPHONE SERVICE PROVIDED BY YOUR LOCAL CARRIER TO MAKE A 911 CALL.
27. RECORDING CONVERSATIONS
Mercury FON™ provides a function that allows you to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary from state to state. You accept sole responsibility for complying with all federal, state and local laws in the relevant jurisdiction when using this feature. Mercury FON™ expressly disclaims all liability with respect to your recording of telephone conversations. You hereby release and agree to hold harmless Mercury FON™ from and against any damages or liabilities of any kind related to the recording of any telephone conversations using the Services.
28. COOPERATION WITH GOVERNMENT AUTHORITIES
If necessary and in accordance with applicable law, Mercury FON™ will cooperate with local, state, federal, international and/or worldwide government authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, Mercury FON™ , its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.
29. CALEA
Mercury FON™ intends to fully comply with the Communications Assistance for Law Enforcement Act ("CALEA"). By using the Services, you hereby agree and consent to Mercury FON™ 's right to monitor, “tap and trace” and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
30. LINKS TO OTHER MATERIALS
The site contains links to other websites, and references to other sources of information. We do not control, nor are we responsible for, the content of any linked site, any link contained in a non-affiliated linked site, or any other source. Mercury FON™ reserves the right to terminate any link or linking program at any time. Mercury FON™ has selected the links for your convenience. The selection or omission of links does not constitute an endorsement of any particular companies or products. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. We are not responsible for any links to any portion of the Site from other sites, or for notification of any change in name or location of any information on the Site.
31. NOTICES
Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid or sent by facsimile or electronic mail, addressed, (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us at 4401 Waterfront Drive, Suite 210, Glen Allen, VA 23060, attention Customer Support Department. Your notice must specify your name and Account. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by facsimile, when sent and receipt is telephonically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our records.
32. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding that body of law applicable to conflicts of law.
33. JURISDICTION AND VENUE
You and Mercury FON™ agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in a Virginia state or federal court sitting in Richmond, Virginia, United States of America. You and Mercury FON™ each waive any objection you or Mercury FON™ may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.
34. PRIVACY
Mercury FON™ 's Privacy Policy is set forth on the Site (www.MercuryFon.com). In addition, you authorize our monitoring and recording of your calls to us concerning your Account or the Services and you consent to our contacting you from time to time by means of (a) automatic dialing equipment, (b) your Mercury FON™ voicemail box (c) or by the e-mail address on file.
35. PUBLICITY
You hereby authorize and consent to Mercury FON™ :
35.1 to publicize the existence of the relationship contemplated hereunder as a part of Mercury FON™ 's promotional and marketing activities from time to time.
35.2 to use, transmit, publicize, post on its website or in any other media or publications or otherwise use, for commercial or non-commercial purposes, any communications, messages, statements, testimonials or other information that you make, deliver and/or provide to or about Mercury FON™ or the Services.
36. GENERAL
36.1 Costs to Prevailing Party. In the event that any action is filed to interpret or enforce this Agreement, the most prevailing party shall be entitled to recover its costs, including expert witness fees and reasonable attorneys' fees.
36.2 Construction. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect. No rule of construction favoring or disfavoring the draftsman of the agreement shall apply.
36.3 Injunctive Relief. You agree and acknowledge that any breach of the provisions regarding ownership contained in this Agreement shall cause Mercury FON™ irreparable harm and Mercury FON™ may obtain injunctive relief as well as seek all other remedies available in law and in equity.
36.4 Assignment by You. You may not transfer or assign this Agreement or any of your rights under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns and legal representatives.
36.5 Survival. The provisions of this Agreement relating to intellectual property ownership, restrictions on use or disclosure of the Services, disclaimers of warranties, limitations of liability and indemnification shall survive termination or expiration of this Agreement for any reason.
36.6 U.N. Convention Not Applicable. The U.N. Convention for the Sale of Goods shall not be applicable to this license of the Services to you.
36.7 Titles and Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
36.8 Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
36.9 FORCE MAJEURE. Mercury FON™ shall be excused from any delay or failure in performance hereunder, other than the payment of monies, caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war or government requirements.
36.10 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Mercury FON™ and you with respect to your use of Mercury FON™ Site, Materials, Content, Services and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between Mercury FON™ and you with respect thereto.
36.11 NO WAIVER. The failure of Mercury FON™ to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
By selecting either the month to month or the six month minimum service option when you sign up for service and submitting your order, by mail, fax, email or through this website, you indicate your acceptance of and agreement to the foregoing Terms of Use. If you submit your order by email, fax, in person or directly through this website, your submission of the order constitutes your acceptance of and agreement to the foregoing Terms of Use.
Unless we notify you of non-acceptance of your order within 24 hours after receipt, your order is deemed accepted by us and we are both bound by these Terms of use.