Terms of Use
www.themercava.com
Last Updated: May 5, 2019
Welcome to www.themercava.com, a revolutionary online Jewish educational platform (the "Platform") operated by Mercava, Inc., a New York not-for-profit corporation with an address at Mercava, Inc., 825 East 18th Street, Brooklyn, NY 11230 (“Mercava”, “we”, “our”, or “us”). The Platform enables users of the Platform (“Visitors”, “you”, and “your”) to learn more about us and to use the Platform’s features. This terms of use for the Platform (this “Agreement”) sets forth the terms and conditions which govern your use of the Platform.
The Platform enables anonymous visitors to the Platform ("Visitors") to browse the Platform, and Visitors who affirmatively indicate their agreement to abide by this Agreement by means of a click-through consent where this option is made available by Mercava or otherwise as indicated in writing including without limitation by electronic communication (“Registrants”), to utilize additional functionality of the Platform which are not offered to Visitors. The terms “you”, "your" and “yours” when used herein refer to either Registrants or Visitors, or to both Registrants and Visitors collectively, as applicable; provided that such terms will refer collectively to both Registrants and Visitors unless the context of this Agreement indicates otherwise.
1.1 Acceptance. Please read this Agreement carefully before otherwise accessing the Platform. In order to use the Platform, you must first agree to be bound by the provisions of this Agreement. For Visitors (who are anonymous browsers and who have not yet registered with us), by accessing the Platform, you indicate that you have read, understood and agree to be bound by the provisions set forth in this Agreement. And for Registrants (who have registered with the Platform), you indicate by means of the additional mechanism presented to you (whether by click-through consent or otherwise) your agreement to the provisions of this Agreement. If you do not agree to be bound by this Agreement, you are not authorized to use the Platform. If you are a minor in your state of residence, then you are authorized to use the Platform if and only if you have complied with the requirements of Section 1.2 below. Furthermore, you are not authorized to use the Platform if you are barred from using the Platform either (a) under the laws of the jurisdiction in which you reside or from which you are attempting to access the Platform, or (b) due to prior violations of this Agreement.
1.2 Minors. As described above and for clarity, if you are a minor in your state of residence, you agree to use the Platform if and only if (a) you have secured the authorization of your parent or legal guardian to use the Platform and your parent or legal guardian has agreed to this Agreement on your behalf, (b) your parent or legal guardian has not revoked such agreement, and (c) you have agreed to the provisions of this Agreement and you have not revoked such agreement.
1.3 Modification. We reserve the right to modify this Agreement at any time. You shall periodically review this Agreement to be aware of such modifications. You further agree that your continued use of the Platform after any such modifications have been made shall be deemed to be your conclusive acceptance of any modified version of this Agreement. We will indicate that changes to this Agreement have been made by updating the date indicated after “Last Updated” at the beginning of this Agreement. We will be happy to provide you with prior versions of this Agreement upon your written request to us. If you do not agree to abide by the initial version and each modified version of this Agreement, then you are not authorized to use the Platform. A current version of this Agreement is accessible via the footer of the Platform’s homepage.
3.1 Profile; Password. Each Registrant will receive a unique Registrant account (“Account”) and will be able to access your Account by selecting a corresponding user ID and password. You shall not allow any individual or entity to use your Account to access the Platform and you shall strictly safeguard your Account information or any other information that would allow any individual or entity to access the Platform by using your Account. You are solely responsible for your failure to strictly safeguard such information and/or to allow any other individual or entity to access or use the Platform by using your Account. You may not sell or otherwise transfer your Account or any portion thereof. You shall notify Mercava immediately of any unauthorized use of your Account or any portion of the Platform. Mercava shall not be liable for any loss that results from the unauthorized use of your Account, either with or without your knowledge.
3.2 Accurate Information. In order to register with the Platform or otherwise to utilize certain functionality of the Platform, you will be asked by Mercava or a third party working on our behalf to supply certain of your personally identifiable information (“PII”) to us. You shall provide accurate, complete and current information about yourself while registering for your Account and otherwise using the Platform, and you shall update all information provided by you through the Platform if and as soon as such information changes. You shall be responsible for any activity conducted through the Platform which is identified with such information.
3.3 Disabling or Revoking of Account. We have the right to suspend or terminate your Account at any time if we believe you have violated or may violate this Agreement, all as determined by us in our sole discretion. If we suspend, terminate or otherwise disable access to your Account, you may be prevented from accessing the Platform, your Account details and/or any Content uploaded or otherwise provided by you through your Account or otherwise to the Platform or to us (collectively, “Your Content”), all of which may be deleted by us. In such a case, your rights to use the Platform and any Your Content will cease immediately. Suspension or termination by us is without prejudice to all other remedies available to Mercava by law or under this Agreement.
3.4 Cessation of Platform. The form and nature of the services offered through the Platform may change from time to time without prior notice to you. As part of our continuing innovation, we may stop (permanently or temporarily) providing certain Platform features to you in our sole discretion, without prior notice to you.
4.1 Proprietary Rights. Content provided by Mercava or any of our third party licensors is protected by copyright, trademark and other laws of the United States and/or other jurisdictions. Other than for Your Content and third party Trademarks (as hereinafter defined) appearing on the Platform, you acknowledge and agree that as between you and us, all right, title and interest (including without limitation all copyright, trademark, patent, trade secret and other intellectual property rights) in and to Platform (including without limitation all other Content appearing therein) is owned by us, and that you have no rights in and to the Platform other than as expressly set forth in this Agreement. Except for that information which is in the public domain and is not otherwise limited by third party rights or for which you have been given express written permission by us, no Content may be sold, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without our prior written consent or, where applicable, that of our licensors. However, you may print or otherwise utilize copies of Content appearing on the Platform for your non-commercial use only, provided that you must keep intact all copyright, Trademark, and other proprietary notices appearing therein (and otherwise provide full attribution to Mercava with a reference to the Platform URL) and that you do not use such Content in any manner which in any manner disparages us or directly or indirectly competes with us. For clarity and without limiting the foregoing, please note that Content posted by other Platform users may also be protected by copyright, trademark patent and other rights under the laws of the United States and/or other jurisdictions, and no rights in such Content whatsoever are granted to you other than those expressly granted herein or by the owner of such Content.
4.2 Grant of License to Your Content. By posting Your Content to the Platform, you automatically grant, and represent and warrant that you have the right to grant to Mercava, a non-exclusive, perpetual, irrevocable, sub-licensable (through multiple tiers), assignable, fully-paid, royalty-free, and worldwide license to use, copy, modify, adapt, publish, make, sell, publicly display, create derivative works of or incorporate into other works all of such Your Content (in whole or in part), communicate to the public, distribute (through multiple tiers), perform or display all of such Your Content (in whole or in part), in any form, media, or technology now known or later developed, and to grant and authorize sublicenses of the foregoing through multiple tiers of sub-licensees, including the right to exercise the copyright, publicity, and any other rights over any of the materials contained in all of such Your Content for any purpose, including without limitation (a) for purposes of advertising and publicity on the Platform and elsewhere and (b) otherwise to generate revenue or other remuneration. We shall not be limited in any way in the use, commercial or otherwise, of any of such Your Content, and you hereby waive any moral rights (or “droit moral”) in, or approval rights to, such Your Content. For clarity and without limiting the foregoing, we reserve the express right to incorporate any of Your Content into any further work, in any medium now or hereafter known, without prior consent or review, and without attribution or payment of any royalty or fee whatsoever.
4.3 Copyright Agent. The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our copyright agent with the following information: (a) an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest, (b) a description of the copyrighted work that you claim has been infringed, (c) a description of where the material that you claim is infringing is located on the Platform, (d) your address, telephone number, and e-mail address, (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.
4.4 Trademarks. "MERCAVA” is a trademark of Mercava. All other Trademarks referenced on the Platform are the property of their respective owners. Mercava is not affiliated with, or sponsored or endorsed by any third party trademark owner whose Trademark appears on the Platform and whose owner is not indicated to be Mercava. As used herein, the term “Trademarks” means, collectively, all service names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, and trade dress appearing on the Platform which indicate a source of goods or services. Trademarks are protected by the trademark laws of the United States and/or other jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademarks in any way, including without limitation in the distribution of any Content, for advertising or publicity or otherwise, without our prior written consent or the prior written consent of such third party Trademark holder, as applicable. Unless you have been expressly authorized to do so in writing by Mercava or any other applicable Trademark holder, you shall not use any Trademark of any individual or entity in a way that is likely or intended to cause confusion with such Trademark holder.
4.5 Removal of Notices. You shall not remove, obscure, or alter any proprietary rights or notices (including without limitation copyright and Trademark notices) which may be affixed to or contained within any Content. You shall abide by all such notices.
5.1 Your Content. You shall adhere to following terms and conditions for using the Platform: (a) Mercava has no obligation to use or respond to any of Your Content; (b) the provision of Your Content to us in no way imposes any obligation on Mercava, whether of confidentiality, attribution, compensation or otherwise, and Mercava shall not be liable for any disclosure or other use of any of Your Content; (c) all Your Content shall be accurate and shall not violate the copyright, trademark, patent, trade secret, right of publicity, right to privacy, or any other intellectual property or other legal right of any third party; (d) you shall pay for all royalties, fees and any other monies owing any person by reason of any of Your Content that you post to the Platform, (e) Your Content may be subject to size and usage limitations, and you are responsible for adhering to any such limitations, and (f) all of Your Content shall comply with the provisions of Section 5.3 hereof specifically and all other applicable sections of this Agreement.
5.2 Quality and Review of Your Content. We do not and shall not have any obligation to review, monitor, check or investigate Your Content, and therefore we do not guarantee the accuracy, integrity or quality of any of Your Content or the Content of any other person. Thus we cannot assure that harmful, inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable Content will not appear on the Platform, and we are not responsible for any Your Content or the accuracy or opinions expressed by any Your Content. Notwithstanding the foregoing or anything to the contrary in this Agreement, Mercava (a) has the absolute right (but not the obligation) to pre-screen, monitor, review, flag, filter and remove any and all of Your Content in our sole discretion, and we reserve the right to alter, edit, refuse to post or remove any of Your Content, in whole or in part, for any reason or for no reason as determined by us in our sole discretion, and (b) has the right to disclose Your Content and the circumstances surrounding its transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request or to protect ourselves, other Platform users or service providers or any other person, as determined by us in our sole discretion.
5.3 Usage Restrictions. You shall not use the Platform in any manner that:
(a) enables you (or enables any other person) to (i) copy, modify, create a derivative work of, any Content, or (ii) copy, modify, create a derivative work of, reverse engineer, translate, adapt or decompile (or attempt to translate, adapt or decompile) or otherwise attempt to extract any software underlying any portion of the Platform or the source code of the software underlying the Platform or any portion thereof, other than may be expressly permitted by this Agreement;
(b) interferes with operations or services provided by the Platform or otherwise disrupts the Platform in any way;
(c) interrupts, destroys or limit the functionality of, any computer software or hardware or telecommunications equipment (including without limitation by means of software viruses, Trojan horses or any other computer code, files or programs);
(d) infringes any copyright, trademark, trade secret, patent or other right of any party (including the promoting of an illegal or unauthorized copy of another person's copyrighted work), or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);
(e) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable, as determined by us in our sole discretion;
(f) creates a false identity or otherwise attempts to mislead any person as to the identity or origin of any communication;
(g) exports, re-exports, or permits downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies and authorities, or without all required approvals, licenses, or exemptions;
(h) causes us to lose (in whole or part) the services of our internet service providers or other suppliers;
(i) consists of any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, or otherwise transmits, posts or sends unsolicited commercial messages, removes or modifies any postings, unauthorized commercial advertisements, affiliate links, and other forms of solicitation;
(j) links to materials or other content, directly or indirectly, to which you do not have a right to link or which we determine in our sole discretion is not appropriate to be linked to from the Platform; or
(k) violates, or encourages others to violate this Agreement (or engages in any other activity deemed by us to be in conflict with this Agreement), or violates or encourages others to violate any applicable local, state, national, or international law.
5.4 Reporting Violations. You shall immediately notify us in writing of any of Your Content or any other Content that you view through the Platform which you deem to be offensive, inappropriate or otherwise a violation of this Agreement.
5.5 Disabling or Revocation of Use. We have the right to cancel or suspend your use of the Platform (if applicable) including any purchase made by you, for any reason (without having to specify the reason) or for no reason at any time, as determined in our sole discretion, including without limitation if we believe you have violated this Agreement.
12.1 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, excluding New York’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of New York, excluding New York’s choice-of-law principles. The parties agree to personal and exclusive jurisdiction by and venue in the courts located within the County of New York, State of New York, and to receive service of process through certified mail or by other means sanctioned by law, and the parties expressly waive any claim of improper venue and any claim that such courts are an inconvenient forum.
12.2 Binding Arbitration. Any dispute arising out of or relating to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration will be conducted in the City of New York, State of New York, by an arbitrator with applicable industry expertise in online education industry, who shall be named in accordance with such rules. The award of the arbitrator shall be final and binding on you and us, without a right of appeal, and shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such arbitration proceedings including without limitation all evidence and materials submitted by you and/or us shall be deemed to be confidential information and shall not be made public by either you or us. The non-prevailing party in such proceedings shall pay the prevailing party's costs and expenses, including but not limited to reasonable attorneys’ fees. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. Notwithstanding the foregoing, we may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision, without breach of this arbitration provision.
12.3 TIMELY FILING OF CLAIMS. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM THAT YOU MAY HAVE AGAINST ANY OF THE Mercava PARTIES WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR OTHERWISE YOUR USE OF THE PLATFORM MUST BE FILED BY YOU PURSUANT TO THIS SECTION 12 WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.
13.1 Entire Agreement. This Agreement (as may be amended from time to time) and any ancillary terms and conditions referenced herein sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
13.2 Assignment. You shall not resell or assign your rights, duties or obligations under this Agreement and that any attempted assignment or delegation will be void and of no force or effect whatsoever. This Agreement may be automatically assigned by Mercava, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limitation of the foregoing, we may sell, transfer or otherwise share some or all of our assets, including without limitation your PII, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, including without limitation in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such an event, the PII we have collected from you may be one of the assets transferred.
13.3 Validity. If any provision of this Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
13.4 No Waiver. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to a subsequent or similar breach or breaches. If Mercava does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Mercava has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of Mercava’s rights, and all such rights or remedies shall still be available to Mercava.
13.5 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and Mercava by this Agreement or as a result of your use of the Platform or your purchase of any of our products and/or services.
13.6 Notices. All notices hereunder shall be given by certified mail, postage prepaid and return receipt requested, to: Mercava Inc., Attn: Legal Department, Mercava, Inc., 825 East 18th Street, Brooklyn, NY 11230 and by email to e-mail at info@themercava.com, and to you at the address and email listed provided to us by you (if applicable). Notice shall be deemed given three (3) days after the date of such mailing and upon receipt of such email.
13.7 Contact Us. If you have any questions or concerns regarding the Platform, please contact us by e-mail at info@themercava.com or write to us at Mercava Inc., 825 East 18th Street, Brooklyn, NY 11230.