Last updated: February 13, 2025
This
Mercury Services Agreement (the “Agreement”) is between Shoestring Valley
Holdings Inc. ("Shoestring
Valley", “us,” "our," and "we")
and you individually or the
company that you represent (“you” or “your”) and governs your use
of Mercury, our digital collaboration platform, and Mercury-related
websites and applications (together, the “Services”) and any
updates, enhancements, and new features thereto.
THIS AGREEMENT DOES NOT
APPLY TO THE OUR DESIGN AND CONSTRUCTION WORK. THE DESIGN AND CONSTRUCTION WORK
YOU DO WITH US, OUR AFFILIATES, OR OTHER USERS OF THE SERVICES IS TYPICALLY
GOVERNED BY AN AIA CONTRACT OR SIMILAR AGREEMENT.
PLEASE READ THE AGREEMENT
CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING ALL OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE BINDING ARBITRATION
TERMS AND CLASS ACTION WAIVER SET FORTH IN SECTION 15. IF YOU DO NOT AGREE TO
THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES.
IF YOU ARE USING THE SERVICES AS
AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, YOU REPRESENT AND WARRANT THAT
YOU ARE AUTHORIZED TO ENTER INTO A BINDING AGREEMENT ON THE COMPANY’S BEHALF.
We reserve
the right to update and modify the Agreement at any time without notice to you.
The most current version of the Agreement can be reviewed by clicking on the
"Legal" hypertext link located at the bottom of our websites. When we
make updates to the Agreement, we will update the date at the top of this page.
By using the Services after a new version of the Agreement has been posted, you
agree to the terms and conditions of such new version.
If you are
not satisfied with the Services following such changes to the Agreement, your
sole remedy is to discontinue your use of the Services.
2.
COLLABORATION
Accounts. To use the digital collaboration
platform, you will need to be invited and have an account, which is tied to
your email address and first and last name (an “Account”). Your Account
is your identity on the Services and will be visible to all Services’ users.
You may choose to provide more information as part of your Account, including
your title or other contact information. So long as you have access to the
email inbox associated with your Account, your Account will remain active
unless you request otherwise.
You agree and
understand that you are (1) responsible for maintaining the confidentiality of
your Account and (2) solely responsible for all activities that occur under
your Account. If you become aware of any unauthorized use of your Account, or
unauthorized disclosure of your Content (defined below), you agree to notify us
immediately via email at support@mercurybuild.com.
Companies. We invite companies to use the
Services (each, a “Company”). When they onboard to the Services, they
can assign Company administrators.
Projects. Company administrators can create
a shared digital workspace on the Services (“Project”), invite others to
join the Project, assign Project roles, and delegate Project permissions (i.e.,
create, read, update, and delete). A Project is managed by a single Company,
but Accounts from multiple organizations can collaborate on a Project. An
Account can join multiple Projects.
3.
USE
OF THE SERVICES
We grant you
the right to access and use the Services only in accordance with this
Agreement. We reserve all other rights. You may not use the Services:
To the extent
we process any personal information to provide the Services, the <Mercury
Privacy Statement> applies.
Applications. You may install and use
applications we provide, including through third-party app platforms, only for
use with the Services. The applications may collect analytics and usage data
which may be transmitted to us or our service providers.
If the
application you use is downloaded from a mobile app platform or app store:
Collaboration
Features. The
Services may contain features and functionality that enable you to collaborate
with other Services users, for example, by sharing documents and providing
updates on a Project. You agree to use such features and functionality only to
post, share, send, and receive messages, information, and materials that are
proper.
You may not
use the Services to:
AI-powered Features. Features and functionality of
the Services may include, use, or be powered by an Artificial Intelligence (“AI”)
system. You may not use such AI-enabled features of the Services to (1) reverse
engineer, modify, or otherwise discover their models, algorithms, and systems (2)
harvest or extract data related to such Services, or (3) create, train, or
improve (directly or indirectly) any other AI service. Review the output of
such features carefully. We make no representations or warranties and provides
no indemnities with respect to output of such features. You are solely
responsible for your use of any outputs of such features.
Materials. We grant you permission to use the
document and materials we provide our users (such as our white papers, help
content, and FAQs) (the “Materials”) from the Services, provided that
(1) you do not modify any copyright or confidentiality notices, (2) unless
explicitly covered by another license or agreement, your use of such documents
from the Services is for informational use only and such documents will not be
copied or posted on any network computer or broadcast in any media, and (3) no
modifications are made to the documents.
Materials specified
above do not include the design or layout of the Services, our logos or marks, or
any other digital property we own, operate, license or control. Elements, such
as the user interface, features, functionality, design elements, and the ‘look
and feel,’ of our Services are protected by trade dress, trademark, unfair
competition, and other laws and may not be copied or imitated in whole or in
part. No logo, graphic, sound or image from the Services may be copied or
retransmitted unless expressly permitted by Shoestring Valley.
4.
CONTENT
As between
the parties, you retain all right, title, and interest (including any and all
intellectual property rights) to all data, including
all text, video, or image files, that you provide to us through your use of the
Services (together, your “Content”). You are solely responsible for
the accuracy and legality of the Content. You will only submit Content that you
have the right to post; and that you will fully comply with any third-party
licenses or policies relating to Content you post. Your Content does not
include data that we generate related to your use of the Services or
information you provide to administer your Account or Project.
Subject to
the terms of this Agreement, you hereby grant us a non-exclusive, worldwide,
royalty-free right to (1) process the Content to provide the Services,
including by showing your Content to other Services users, (2) to improve and
repair the Services, and (3) as may be required by law.
Your Content
will comply with applicable laws, government regulations, any other legal
requirements, and third-party legal requirements applicable to you. You warrant
that you have and will have sufficient rights in your Content to grant the
rights herein and that the processing of your Content by us in accordance with
this Agreement will not violate any laws or the rights of any third party.
We have no
obligation to monitor the Services. However, we reserve the right to:
· Review content posted to the
Services.
· Edit, refuse to post, or to remove
any Content, information, or materials on the Services, in whole or in part, in
our sole discretion.
· Terminate your access to the
Services or delete your Account at any time, without notice, for any reason
whatsoever; and
· Disclose any information we deem
necessary to (1) satisfy any applicable law, regulation, legal process, or
governmental request, or (2) protect our rights or the rights of others.
Your use of
others’ content and information posted on our Services, is at your own risk. By
using the Services, you may encounter content or other information other users
provide on the Services that might be inaccurate, incomplete, delayed,
misleading, illegal, offensive, or otherwise harmful. You agree that we are not
responsible for content or other information made available through or within
the Services by other users.
We cannot
always prevent misuse of our Services, and you agree that we are not
responsible for any such misuse. You also acknowledge the risk that others may
share inaccurate or misleading information about you or your organization.
We will implement and maintain
appropriate technical and organizational measures to protect your
Content against accidental or
unlawful destruction, loss, alteration, unauthorized disclosure, and
unauthorized access. You
are solely responsible for making an independent determination as to whether
the technical and organizational measures for the Services meet your
requirements, including any of your security obligations under applicable data
protection laws. You are responsible for implementing and maintaining privacy
protections and security measures for the devices and connectivity services you
use to access the Services.
If we become
aware of a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorized disclosure of, or access to your
Content while processed by us, we will promptly and without undue delay (1)
notify you; (2) investigate the security incident and provide you with
information about the security incident; (3) take reasonable steps to mitigate
the effects and to minimize any damage resulting from the security incident.
Such notifications will be delivered to the email address associated with your
Account. You are solely responsible for complying with your obligations under
incident notification laws applicable to you. We will make reasonable efforts
to help you in fulfilling your obligations under law related to any security
incident. Shoestring Valley’s notification of or response to a security
incident under this section is not an acknowledgement by us of any fault or
liability with respect to the security incident. You must notify us promptly
about any possible misuse of your account or authentication credentials or any
security incident related to the Services.
6.
INTELLECTUAL
PROPERTY
Shoestring
Valley reserves all of its intellectual property rights in the Services and
Materials. Trademarks and logos used in connection with the Services are the
trademarks of their respective owners. All rights not expressly granted to you
in this Agreement are reserved and retained by Shoestring Valley or its
licensors, suppliers, publishers, rightsholders, or other providers.
The software
and applications we make available are the copyrighted works of Shoestring
Valley and/or our suppliers. Any reproduction or redistribution of the software
or applications not in accordance with the Agreement is expressly prohibited.
We may freely
use and incorporate any suggestions, comments, or other feedback about the
Services you voluntarily provide.
We may name
you or your Company as its customer to other Shoestring Valley customers or
prospective customers. Without limiting the foregoing, we may use and display
your name, logo, trademarks, and service marks on the Services, including on
our website, and in our marketing materials in connection with identifying you
as a customer. Upon your written request, we will promptly remove any such
references or marks from our website and, to the extent commercially feasible,
our marketing materials.
7.
ACCOUNT
AND PROJECT DELETION AND TERMINATION
We have the
right to suspend or terminate your access to all or any part of the Services at
any time, with or without cause, with or without notice, effective immediately.
We reserve the right to refuse access to anyone for any reason at any time.
You can ask
that we provide you a copy of your information or delete your information by contacting
us at support@mercurybuild.com. We will honor your request
without undue delay, unless honoring your request is an undue burden or we need
to retain and use such information to comply with our legal obligations,
resolve disputes, and enforce our agreements. Information cannot be recovered
once it has been deleted. Please note we do not delete Project contributions
or Content that you have contributed to others’ Projects.
All
provisions of this Agreement which, by their nature, should survive
termination will survive termination, including, without
limitation: Your Content and Security, Intellectual Property, Representations
and Warranties, Indemnification, Limitations of Liability, and Disputes.
8.
THIRD-PARTY
WEBSITES AND SERVICES
These third-party websites and
services are governed by their own terms of use and privacy policies. We do not
control, endorse, recommend, or otherwise accept responsibility for third-party
websites or services. You are responsible for deciding if you want to access or
use third-party websites or services and you accept the risk in doing so. If
you have questions regarding the third-party websites or services, please
direct them to the owner or operator. By using the Services, you release and
hold us harmless from any and all liability arising from your use of any
third-party website or service.
9.
COMMUNICATIONS
You consent
to receive communications from us electronically to the email address you
provide. You agree that all notices, disclosures, and other communications that
we deliver to your email address will satisfy any legal requirement that such
communications be in writing.
Through the Services, you may opt
in to receive promotional messages to an email address or mobile number you
provide to us. When you opt into any of these types of communications, you
understand you will receive and consent to marketing, transactional, and other
messages from us or our affiliates which may be sent by our marketing services
providers. Messages may be sent using automated technology and message
frequency varies. Your mobile carrier’s message and data rates may apply.
Your consent or opt-in to promotional messages is not required to make any
purchase or participate in our promotions.
10.
SOCIAL
MEDIA
From time to
time, we may engage with you on social media channels. For example, we may
reach out to you and ask for permission to use content you posted on social
media channels including photography, videos, captions, and or related content.
Unless we agree in writing to different terms, when you agree to allow us to
use your social media content:
· We will have the worldwide and
perpetual right, without payment to you, but not the obligation, to publish
your social media content on the Services, in our physical locations, on social
media channels, and on our partner or distributors digital properties in any
form; and
· You represent and warrant that (1)
you have the right to grant us the right to use your social media content as
set forth in this Agreement and such use by us will not violate the rights of
any third party; and (2) any statements or testimonials that are included in
your social media content are true and accurate and represent your current
honest opinions, findings, beliefs, and/or experiences.
11.
REPRESENTATIONS
AND WARRANTIES
Each party warrants that it has
validly entered into this Agreement and has the legal power to do so.
SHOESTRING VALLEY HEREBY DISCLAIMS
ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, INCLUDING ALL
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO
NOT MAKE ANY ASSURANCES WITH REGARD TO THE RESULTS OR OUTPUT THAT COMES FROM
YOUR USE OF THE SERVICES.
SHOESTRING
VALLEY, ITS AFFILIATES, AND SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE
SUITABILITY OF THE SERVICES OR THE INFORMATION CONTAINED IN THE MATERIALS AND
RELATED GRAPHICS PUBLISHED AS PART OF THE SERVICES FOR ANY PURPOSE. ALL
MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
SHOESTRING VALLEY, ITS AFFILIATES, AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES
AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING ALL WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
12.
INDEMNIFICATION
We will
defend you against any claim by a third party alleging that the Services, when
used in accordance with this Agreement, infringes any intellectual property
right of such third party and will indemnify and hold harmless you from and
against any damages and costs awarded against you or agreed in settlement by us
(including reasonable attorneys’ fees) resulting from such claim. If your use
of the Services results (or in our opinion is likely to result) in an
infringement claim, we may either: (1) substitute functionally similar products
or services or (2) terminate this Agreement.
The foregoing
indemnification obligation will not apply to the extent the applicable claim is
attributable to: (1) the modification of the Services by any party other than
Shoestring Valley; (2) the combination of the Services with products or
processes we do not provide; (3) any use of the Services in non-conformity with
this Agreement; or (4) any action arising as a result of your Content, or any
deliverables or components not provided us. This section sets forth your sole
remedy with respect to any claim of intellectual property infringement.
You will
defend us against any claim by a third party arising from or relating to your
Content and will indemnify and hold us harmless from and against any damages
and costs awarded against us or agreed in settlement by you (including
reasonable attorneys’ fees) resulting from such claim.
In the event
of a potential indemnity obligation under this Agreement, the indemnified party
will: (1) promptly notify the indemnifying party in writing of the claim, (2)
allow the indemnifying party the right to control the investigation, defense
and settlement (if applicable) of such claim at the indemnifying party’s sole
cost and expense, and (3) upon request of the indemnifying party, provide all
necessary cooperation at the indemnifying party’s expense. Failure by the
indemnified party to notify the indemnifying party of a claim under this
Section shall not relieve the indemnifying party of its obligations under this Section.
However, the indemnifying party shall not be liable for any litigation expenses
the indemnified party incurred before such notice was given, or for any damages
and/or costs resulting from any material prejudice caused by the delay or
failure to provide notice to the indemnifying party in accordance with this
section. The indemnifying party may not settle any claim that would bind the
indemnified party to any obligation (other than payment covered by the
indemnifying party or ceasing to use infringing materials) or require any
admission of fault by the indemnified party, without the indemnified party’s
prior written consent, such consent not to be unreasonably withheld,
conditioned or delayed. Any indemnification obligation under this Section will
not apply if the indemnified party settles or makes any admission with respect
to a claim without the indemnifying party’s prior written consent.
13. LIMITATION OF LIABILITY
YOU EXPRESSLY
UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, SHOESTRING VALLEY,
ITS AFFILIATES, OR SUPPLIERS WILL NOT IN ANY EVENT BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR ANY
DAMAGES WHATSOEVER, ARISING OUT OF OR RELATING TO (1) THE USE OF THE SERVICES,
MATERIALS AND CONTENT THEREIN (2) THE INABILITY TO USE THE SERVICES, THE
MATERIALS, OR CONTENT THEREIN AND (3) THE AGREEMENT.
14.
COPYRIGHT
INFRINGEMENT AND DMCA POLICY
If you
believe that any content on the Services violates your copyright, please
contact us by emailing velkin@shoestringvalley.com. Before sending a takedown
request, you must consider legal uses, such as fair use. We will terminate the
Account if you are found to be a repeat infringer or if you repeatedly report
false or frivolous violations.
15.
DISPUTES
| BINDING ARBITRATION AND CLASS ACTION WAIVER
Any
controversy or claim arising out of or relating to the Services or this Agreement,
or the breach thereof, shall be settled by arbitration administered by the
American Arbitration Association under its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. Our agreement to arbitrate shall be given the
broadest possible meaning that will be enforced.
YOUR
AGREEMENT TO ARBITRATION MEANS THAT FOR ALL COVERED CLAIMS, YOU ARE GIVING UP
YOUR RIGHT TO FILE A LAWSUIT IN COURT AND THE RIGHT TO A TRIAL BY JURY.
INSTEAD, YOU WILL HAVE A HEARING BEFORE A NEUTRAL ARBITRATOR.
In the event
of a dispute related to the Services or this Agreement, you or Shoestring
Valley must send to the other party a notice of dispute, which is a written
statement that sets forth the name, address, and contact information of the
party giving the notice, the facts giving rise to the dispute, and the relief
requested. You must send any notice of dispute to the address below. We will
send any notice of dispute to you at the contact information we have for you. We
will attempt to resolve a dispute through informal negotiation within sixty
(60) days from the date the notice of dispute is sent. After sixty (60) days,
you or we may commence arbitration.
You must send
any notice of dispute to velkin@shoestringvalley.com and:
Shoestring Valley Holdings, Inc.
Attn: Vicky Elkin
6712 N. Cutter Circle
Portland, OR 97217
You or
Shoestring Valley agree to initiate arbitration in Multnomah County, Oregon and
to keep the arbitration confidential, including the existence of the
arbitration, any non-public information provided in the arbitration, and any
submissions, orders or awards made in the arbitration. This information
concerning the arbitration must not be disclosed to any third party except the
tribunal, the parties, their counsel, experts, witnesses, accountants and
auditors, insurers, and any other person necessary to the conduct of the
arbitration. Notwithstanding the foregoing, a party may disclose arbitration confidential
information to the extent that disclosure may be required to fulfill a legal
duty, protect, or pursue a legal right, enforce, or challenge an award in bona
fide legal proceedings.
WE AGREE THAT
ALL PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED
ON AN INDIVIDUAL BASIS. NEITHER PARTY WILL SEEK TO HAVE A DISPUTE HEARD AS A
CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN
WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY.
No
arbitration or proceeding can be combined with another without the prior
written consent of all parties to the arbitration or proceeding. If the class
action waiver is found to be illegal or unenforceable as to all or some parts
of a dispute, those parts will be severed and proceed in a court of law, with
the remaining parts proceeding in arbitration.
You agree
that any action at law or in equity arising out of or relating to this
Agreement that cannot be resolved through arbitration will be filed, and that
venue properly lies, only in the state or federal courts located in Multnomah
County, Oregon, United States of America and you consent and submit to the
personal jurisdiction of such courts for the purposes of litigating such
action.
This
Agreement is governed by and construed in accordance with the laws of the State
of Oregon and the laws of the United States, without giving effect to any
conflict of law principles (whether in the jurisdiction selected above or any
other jurisdiction).
If any
provision of this Agreement terms is found to be unlawful, void, or for any
reason unenforceable, then that provision will be deemed severable from the
Agreement and will not affect the validity and enforceability of any remaining
provisions.
All
provisions of this Disputes Section will survive termination of this Agreement.
16.
GENERAL
TERMS
· Assignment. This Agreement will bind and
inure to the benefit of each party’s permitted successors and assigns. Neither
party may assign this Agreement without the advance written consent of the
other party, except that either party may assign this Agreement in its entirety
in connection with a merger, reorganization, acquisition, or other transfer of
all or substantially all of such party’s assets or voting securities to such
party’s successor; and we may assign this Agreement in its entirety to any
affiliate. Each party shall promptly provide notice of any such assignment. Any
attempt to transfer or assign this Agreement except as expressly authorized
under this section will be null and void.
· Severability; Interpretation;
Conflicts. Except as
specified below, if an arbitrator or a court of competent jurisdiction holds
any provision of this Agreement to be unenforceable or invalid, that provision
will be limited to the minimum extent necessary so that this Agreement will
otherwise remain in effect. Section headings are inserted for convenience only
and shall not affect interpretation of this Agreement.
· Affiliates and Service Providers. While we remain fully liable
and responsible for all obligations under this Agreement, the parties
acknowledge that certain obligations under this Agreement may be fulfilled by our
affiliates or service providers.
· Notices. Any notice or communication
required or permitted under this Agreement will be in writing to the parties at
the addresses set forth in this Agreement or at such other address as may be
given in writing by either party to the other in accordance with this section
and will be deemed to have been received by the addressee upon (1) personal
delivery, (2) the second business day after being mailed or couriered, or (3)
the day of sending by email, except for notices of breach (other than for
non-payment) or an indemnifiable claim, which for clarity must be made by mail
or courier. Email notifications to Shoestring Valley shall be to velkin@shoestringvalley.com.
· Waivers. No waiver will be implied from
conduct or failure to enforce or exercise rights under this Agreement, nor will
any waiver be effective unless in a writing signed by a duly authorized
representative on behalf of the party claimed to have waived.
· Entire Agreement. This Agreement is the
complete and exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements and
communications relating to the subject matter of this Agreement.
· Third-Party Beneficiaries. Except with respect to the
applications that we provide, there are no third-party beneficiaries under this
Agreement, except to the extent expressly stated in this Agreement.
· Force Majeure. Neither party will be liable
to the other for any delay or failure to perform any obligation under this
Agreement (except for a failure to pay Fees) if the delay or failure results
from any cause beyond such party’s reasonable control, including but not
limited to acts of God, labor disputes or other industrial disturbances,
systemic electrical, telecommunications, or other utility failures, earthquake,
storms or other elements of nature, blockages, embargoes, riots, public health
emergencies (including pandemics and epidemics), acts or orders of government,
acts of terrorism, or war.
· Independent Contractors. The parties to this
Agreement are independent contractors. There is no relationship of partnership,
joint venture, employment, franchise, or agency created hereby between the
parties. Neither party will have the power to bind the other or incur
obligations on the other party’s behalf without the other party’s prior written
consent and neither party’s employees are eligible for any form or type of
benefits, including, but not limited to, health, life or disability insurance,
offered by the other party to its employees.
· Export Control. Each party agrees to comply
with all export and import laws and regulations, including without limitation,
those of the United States, applicable to such party in connection with its
respective provision or use of the Service under this Agreement.
· Execution. The parties may execute any
documents hereunder in counterparts, each of which will be deemed an original
and all of which together will be considered the same agreement. The parties
will be bound by signatures made by hand or electronic means, which may be
transmitted to the other party by mail, hand delivery, email and/or any
electronic method and will have the same binding effect as any original ink
signature.
· Contact us. If you have a question about the
Services, the Agreement, or would like to connect, please contact us at:
velkin@shoestringvalley.com, support@mercurybuild.com or Shoestring Valley Holdings
Inc. | ATTN: Vicky Elkin | 6712 N. Cutter Circle | Portland, Oregon
97217.