Last Updated: July 31, 2024
Mercurial AI, Inc. (“Mercurial AI,” “we,” “us,” or “our”) provides the CarePilot application and CarePilot online portal available at https://app.mycarepilot.com (together with any other supporting websites that we may make available, and the mobile and touch versions of any of the foregoing, collectively, the “Platform”), as well as the associated personalized educational information based upon a review of your medical records by Mercurial AI’s artificial intelligence technology (collectively, the “Services”), to you, subject to these Terms of Service (these “Terms of Service”). These Terms of Service establish the terms, conditions, rights, and responsibilities applicable to your access to and use of the Platform and Services.
You acknowledge and agree that: (1) the Platform and Services are intended to inform you about available treatment options which may be of interest to you, and about which you may consult your or your child under the age of 18 years old’s (“Minor Child”) medical care providers; and (2) Mercurial AI and its employees and representatives do not, through the Platform, Services, or otherwise, provide any medical advice, treatment or services. Mercurial AI is not a licensed medical professional and may not perform services performed by a medical professional. The Platform and Services are not intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease. The Platform and Services are not a substitute for medical advice, diagnosis, treatment or services and you should consult your medical care provider related to any medical advice, diagnosis, treatment or services.
PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION SET FORTH IN SECTION 14 BELOW (“ARBITRATION AND DISPUTE RESOLUTION AGREEMENT”), AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES BETWEEN YOU AND US THAT RELATE TO THESE TERMS OF SERVICE ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR USE OF THE PLATFORM AND SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THE ARBITRATION AND DISPUTE RESOLUTION AGREEMENT, AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE PLATFORM OR SERVICES. BY CLICKING ON THE “ACCEPT” OR EQUIVALENT ACCESS, AGREEMENT, OR PURCHASING BUTTON, OR BY CREATING AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE PLATFORM OR SERVICES, YOU AND ANY PERSON THAT YOU REPRESENT (“YOU,” “YOUR,” OR “YOURS”) BECOME LEGALLY BOUND BY THESE TERMS OF SERVICE. YOU ALSO REPRESENT THAT THE INDIVIDUAL CLICKING ON THE BUTTON IS AUTHORIZED TO ENTER INTO THESE TERMS OF SERVICE AND BIND SUCH OTHER PERSON. FOR CLARITY, IF YOU ARE USING THE PLATFORM AND SERVICES ON BEHALF OF ANOTHER PERSON, THEN ALL REFERENCES TO “YOU,” “YOUR,” AND “YOURS” HEREIN SHALL REFER TO BOTH THE INDIVIDUAL AND THE OTHER PERSON. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, DO NOT ACCESS OR USE THE PLATFORM OR SERVICES.
1.1 Mercurial AI has developed an AI tool that reviews medical records and medical history information to generate a listing of personalized potential treatment options for individuals diagnosed with cancer to discuss with their treating providers. While the AI technology is trained on the most up-to-date scientific research and guidelines relied upon by providers as standard of care, no information provided through the Platform and Services is intended to be used for medical 2 diagnosis or treatment. Only your treating provider(s) may diagnose and treat you. You acknowledge and agree that none of the information provided through the Platform or Services has the ability to diagnose, prescribe, or perform any tasks that constitute the practice of medicine or any other regulated health profession, including but not limited to allied health professions such as physical therapy, occupational therapy, dietetics, nutrition, or mental health counselling. You should not rely on any general information provided through the Platform or Services as professional medical advice. Mercurial AI does not recommend or endorse any products, services, solutions, procedures, opinions, treatments, or information that may be provided through the Platform or Services.
1.2 Please be aware that we provide the Platform and Services solely for informational purposes. No medical consultations are made available through the Platform and Services, and Mercurial AI is not a healthcare provider. The Platform and Services are not intended to be a replacement for medical advice obtained from your treating provider(s).
1.3 PLEASE NOTE THAT THE PLATFORM AND SERVICES DO NOT MAKE ANY MEDICAL DIAGNOSES OR RECOMMEND ANY TREATMENTS. PLEASE SEEK THE ADVICE OF A MEDICAL PROFESSIONAL IF YOU ARE CONCERNED ABOUT YOUR HEALTH. IN CASE OF AN EMERGENCY, YOU SHOULD DIAL 911 OR GO TO YOUR NEAREST EMERGENCY ROOM IMMEDIATELY. ALWAYS CONSULT YOUR DOCTOR OR ANOTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS REGARDING ANY MEDICAL ISSUES. YOU SHOULD NEVER DISREGARD A DOCTOR’S PROFESSIONAL ADVICE, ALTER YOUR USE OF A MEDICATION, OR CANCEL AN APPOINTMENT WITH A DOCTOR BECAUSE YOU ARE RELYING ON INFORMATION YOU HAVE READ ON THE PLATFORM OR THROUGH THE SERVICES.
2.1 The Platform and Services are offered to and available to users who are 18 years of age or older. By using the Platform and Services, you represent that you are at least 18 years of age and are able to enter into legally binding contracts, including these Terms of Service. If you are not at least 18 years of age, you may not use the Platform or Services. Notwithstanding the foregoing, you may create an account on behalf of your Minor Child, in which case you acknowledge and agree that you consent to the collection and use of personal information and health data related to that Minor Child in accordance with these Terms of Service.
2.2 The Platform and Services are intended solely for users in the United States. We make no representations or guarantees and disclaim all liability for the Platform and Services related to the Platform and Services’ compliance with international laws. Further, you represent and warrant that you or your Minor Child are receiving treatment from hospitals or medical facilities located in the United States and that you are using the Platform and Services solely in connection with your receipt of treatment from such hospitals or medical facilities.
2.3 Subject to these Terms of Service, we grant you a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Platform and Services solely in accordance with these Terms of Service. For clarity, the foregoing license does not include any right to access or use the source code of the Platform, Services, or any part thereof. In addition, we reserve the right to make any changes that we deem appropriate from time to time to the Platform and Services.
3.1 In order to access and use the Platform and Services, you may be required to set up and maintain an active user account (“Account”). To set up an Account, you may be asked to provide certain information about yourself, such as your first and last name, email address, physical address, phone number, and company information. You may also need to create a username and password for your Account and acknowledge and agree to these Terms of Service and the terms of our Privacy Policy. You must provide complete and accurate information when setting up an Account, and you agree at all times to keep current and promptly update your Account information as necessary.
3.2 You are responsible for maintaining the confidentiality of your password and Account. You agree to: (a) use a strong password and keep your password confidential and not share it with anyone else; (b) not transfer any part of your Account to anyone else; and (c) immediately notify us of any unauthorized use of your username, password, or Account. You acknowledge and agree that we are authorized to act on instructions received through use of your username, password, and/or Account, and that we may, but are not obligated to, deny access or block any use of your username, password, and/or Account, without prior notice, if we believe your username, password, and/or Account are being used by someone other than you, or for any other reason. You are solely responsible for all activity that occurs under your Account unless you report misuse.
3.3 If you are creating an account for Services related to your Minor Child, you acknowledge and agree to these Terms of Service on their behalf.
4.1 Any portions of the Platform or Services made available on an unpaid trial, “beta”, or free basis (“Free Services”) are provided for a limited time only and are subject to these Terms of Service and any additional terms as may be notified to you at the time of any sign-up. The scope, content, features, and duration of such Free Services are determined in our sole discretion and may be changed or updated from time to time, and you expressly agree that we may suspend, limit, or discontinue access to the Free Services at any time and for any reason, without prior notice and without incurring any liability of any kind. We reserve the right to charge subscription or other fees for continued access to any services or features included as part of the Free Services at any time upon notice. Unless you purchase the required access to continue using such services or features, we may permanently delete all data entered into such services or features.
4.2 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, FREE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MERCURIAL AI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND OTHER GUARANTEES WITH RESPECT TO FREE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MERCURIAL AI BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, ANY FREE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE, OR LOSS OF DATA), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF MERCURIAL AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.1 You may access and use the Platform and Services for your personal use, and only as expressly permitted in these Terms of Service. Any other access to or use of the Platform and Services constitutes a violation of these Terms of Service and will result in an automatic termination of the rights and licenses granted to you herein.
5.2 You agree not to remove, alter, cover, or distort any copyright notice or trademark legend, author attribution, or other proprietary rights notice placed on or contained within the Platform and Services. Except as expressly authorized by us in writing, in no event will you reproduce, redistribute, duplicate, copy, sell, resell, lease, lend, sublicense, or exploit for any commercial purpose the Platform, Services, or any portion thereof. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Platform or Services, any updates, or any portion thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of Mercurial AI and its licensors.
5.3 In connection with your access to and use of the Platform and Services, you are responsible for complying with all applicable laws, rules, regulations, and ordinances of all relevant jurisdictions. Without limiting the foregoing, in accessing and using the Platform and Services, you may not do, or cause or permit any other person or entity to do, any of the following:
(a) use the Platform or Services for any unlawful purpose;
(b) circumvent, disable, or otherwise interfere with any security-related features of the Platform or Services, including, without limitation, any features that enforce limitations on the use of the Platform or Services or otherwise prevent or restrict use or copying of any content of the Platform or Services;
(c) use the Platform or Services to transmit any: (i) material that contains any viruses, Trojan horses, worms, time bombs, malware, ransomware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; or (ii) infringing, libelous, or otherwise unlawful or tortious material, or any other material that infringes or violates the rights, including, but not limited to, any intellectual property or privacy rights, of anyone else;
(d) use the Platform or Services in any manner that is competitive with the business of Mercurial AI;
(e) except to the extent required by lawful subpoena or other legal process, make any oral or written statement or other communication that disparages or places in a false or negative light Mercurial AI, the Platform, or the Services;
(f) use any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access or use the Platform or Services;
(g) use the Platform or Services to collect or harvest any personal information, including account names, from the Platform or Services;
(h) impersonate any person or entity, or misrepresent your affiliation with a person or entity;
(i) attempt to interfere with the proper working of the Platform and Services or impose an unreasonably or disproportionately large load on the Platform and Services, or otherwise interfere with or inhibit any other user of the Platform and Services from using or enjoying the Platform and Services; or
(j) otherwise engage in any conduct or activity, or encourage or assist any third party in engaging in any conduct or activity, that violates any applicable laws or regulations or these Terms of Service.
6.1 All documents, information, data, medical records, charts, images, and other materials that you submit, upload, provide, or otherwise make available to us through the Platform and Services (collectively, “Your Materials”) must be in PDF format and are subject to these Terms of Service. Your Materials should include your or your Minor Child’s medical records, charts, and images that you would like to be considered by the Platform and Services. You represent and warrant that the medical records, charts and images within Your Materials are exclusively from hospitals or medical facilities located in the United States. By submitting, uploading, providing, or otherwise making available Your Materials to us, you hereby grant us a non-exclusive, worldwide, royalty-free license to use, reproduce, modify, create derivative works of, display, perform, and distribute Your Materials, in each case: (a) to enable us to provide the Platform and Services to you; and (b) to improve the Platform and Services and/or our other products or services, including training any AI (as defined herein) used in the provision of the Platform and Services. You are solely responsible for Your Materials, including for insuring the completeness thereof, and for compliance with all laws and regulations and contractual requirements applicable to the provision of the same. You acknowledge and agree that: (i) the efficacy of the Platform and Services depend on the availability and accuracy of Your Materials; and (ii) Mercurial AI has no obligation to verify the accuracy and/or completeness of any of Your Materials.
6.2 You represent and warrant that: (a) you either own Your Materials or have obtained and shall at all times maintain all necessary and/or legally required licenses, rights, consents, permissions, and authorizations to provide Your Materials to us as contemplated under these Terms of Service and to otherwise grant the license rights granted herein; and (b) you at all times have complied, and shall continue to comply, with all federal, state, local, and international laws and regulations, including data protection and privacy laws and regulations applicable to the collection, handling, processing, sharing, and/or storage of Your Materials. In the event of any breach of the foregoing warranties, we reserve the right, in our sole discretion and without any notice or liability to you, to delete, modify, refuse to store, or disable access to Your Materials and/or to cancel, suspend, withhold, or terminate your Account and/or your access to the Platform and Services. As between you and Mercurial AI, you will retain ownership of all right, title, and interest in and to Your Materials as originally submitted, uploaded, provided, or otherwise made available to the Platform and Services.
6.3 Notwithstanding anything herein to the contrary, you acknowledge and agree that Mercurial AI is free to use and disclose aggregated and/or anonymized measures of Platform and Services usage and performance, and to reuse all general learning, knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to the Platform and/or Services or acquired during the provision thereof (including that which it could have acquired providing the same or similar services to another user). You further acknowledge and agree that, in addition to the license rights granted to Your Materials above, Mercurial AI shall have the right to aggregate, anonymize, and/or otherwise de-identify any and all of Your Materials (“De-Identified Data”). Subject to your ownership rights in Your Materials as stated in Section 6.2, Mercurial AI shall exclusively own all right, title, and interest in and to any and all De-Identified Data and may freely use De-Identified Data for any business purpose as determined in Mercurial AI’s sole discretion, including for purposes of: (i) conducting research and analytics; (ii) conducting marketing and promotional activities; (iii) selling such De-Identified Data to any hospitals, medical facilities, or any other entity for the purpose of conducting medical research; and (iv) improving and/or further developing the Platform and Services and/or developing, providing, and supporting any other products and services; provided, however, that Mercurial AI will not use or disclose De-Identified Data in any manner that identifies or is reasonably identifiable to you or your Minor Child, as applicable, without first obtaining your prior written consent.
7.1 You acknowledge and agree that the Platform and Services constitute the valuable proprietary information of Mercurial AI or its licensors and is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries. We or our licensors own all intellectual property and proprietary rights, title, and interest in and to the Platform and Services, including, without limitation, any and all patents, copyrights, trademarks, and all other intellectual property rights. Except for the limited use rights granted to you in these Terms of Service, you agree that you do not have and will not acquire any right, title, or interest in or to the Platform or Services or any portion thereof. Any rights not expressly granted in these Terms of Service are expressly reserved.
7.2 By submitting suggestions, comments, petitions, requests or other feedback regarding the Platform or Services, you agree that we and our licensors and third-party service providers may use and share (with no obligation to do so) such feedback for any purpose without compensation to you. You agree to only provide content or information that does not violate the law nor anyone’s rights (including, without limitation, intellectual property or privacy rights).
8.1 Mercurial AI takes such commercially reasonable measures, including physical, technical, administrative, and organizational safeguards designed to secure and protect Your Materials from unauthorized access, use, or disclosure. Identifiable factors such as full name, date of birth, social security number, home and work address, phone number, and emergency contact’s information that may be found in medical records within Your Materials are removed from Your Materials before they are encrypted and stored on HIPAA-compliant servers. Nevertheless, no transmission over the Internet is ever absolutely secure, and we cannot and do not guarantee that any such transmissions are or will be totally secure. You are responsible for maintaining the confidentiality of any information about you, including, without limitation, any username and password used in connection with your use of the Platform and Services. You agree to notify us immediately if you discover loss of or access to such information by another party not under your control or supervision, or if you otherwise become aware of any unauthorized access, use, or disclosure of any of Your Materials through the Platform or Services.
8.2 You are responsible for acquiring and updating compatible hardware, software, devices, and network access necessary to access and use the Platform and Services and any updates thereto. We do not guarantee that the Platform and Services, or any portion thereof, will function on or with any particular hardware, software, or device. The Platform and Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
Currently, there are no required fees for use of the Platform and Services. Notwithstanding the foregoing, we reserve the right, at any time and in our sole discretion, with thirty (30) days’ notice to charge fees for the use of the Platform and Services. Upon notice of the same, if you wish to continue using the Platform and Services, you agree to pay the applicable fees in accordance with our payment terms as notified to you.
We may, in our sole and absolute discretion and without notice or liability to you or any third party, immediately suspend, discontinue, and/or terminate or otherwise limit your access to the Platform and Services (or any part thereof) for any reason, including, without limitation: (a) if we discontinue or materially modify the Platform or Services (or any part thereof); (b) if we believe in our sole discretion that you have violated these Terms of Service or any applicable laws or regulations; (c) at the request of law enforcement, governmental agencies, regulatory authorities, or courts; (d) if unexpected technical, security, or safety issues or problems arise; or (e) if we believe in our sole discretion that your access to or use of the Platform and Services may create risk (including, but not limited to, legal risk) for us, our contractual partners, or other users. Upon any termination, you will lose the right to access and use the Platform and Services, your Account (if any) will be rendered inactive or closed, and Your Materials will be deleted and inaccessible through your Account. Any suspension or termination shall not affect your obligations to us under these Terms of Service. The provisions of these Terms of Service which by their nature should survive the suspension or termination of your access to or use of the Platform and Services shall survive, including, but not limited to, the “Intellectual Property”, “Indemnification”, “Disclaimers”, “Limitation of Liability”, “Arbitration and Dispute Resolution Agreement”, and “Miscellaneous” sections of these Terms of Service.
You agree to indemnify, defend, and hold harmless Mercurial AI, its affiliates, and its and their respective officers, directors, members, owners, shareholders, employees, contractors, licensors, agents, representatives, successors, and assigns (collectively, the “Mercurial AI Parties”), from and against any and all claims, demands, suits, and other proceedings, and all resulting losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to: (a) your use of the Platform or Services; (b) your violation of these Terms of Service; (c) Your Materials, or our use or processing of Your Materials in accordance with these Terms of Service; (d) your violation of the rights of any third party (including any contractual, intellectual property, privacy, or other rights) or of any applicable law or regulation; or (e) your acts and omissions relating to any of the foregoing. We have the sole right to control the defense, settlement, and/or other resolution of any such claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED. YOUR USE OF THE PLATFORM AND SERVICES IS SOLELY AT YOUR OWN RISK. WITHOUT LIMITING ANY OF THE FOREGOING, THE MERCURIAL AI PARTIES DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT: (a) THE USE OF THE PLATFORM AND/OR SERVICES WILL BE SECURE OR UNINTERRUPTED; (b) THE PLATFORM AND/OR SERVICES WILL OPERATE ERROR-FREE, OR THAT ERRORS IN THE PLATFORM AND/OR SERVICES WILL BE CORRECTED; (c) THE USE OF THE PLATFORM AND/OR SERVICES WILL MEET YOUR REQUIREMENTS OR SATISFACTION OR ALLOW YOU TO OBTAIN ANY PARTICULAR RESULTS WHATSOEVER; (d) ANY CONTENT, INFORMATION, COMMUNICATION, OR STATEMENT PROVIDED THROUGH THE PLATFORM AND/OR SERVICES IS OR WILL BE ACCURATE, CURRENT, COMPLETE, RELIABLE, OR OF ANY PARTICULAR VALUE OR QUALITY; OR (e) THE PLATFORM AND/OR SERVICES WILL BE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS.
YOU EXPRESSLY ASSUME ALL LIABILITIES AND RISKS OF YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES. NO ORAL OR WRITTEN INFORMATION, COMMUNICATION, 8 OR OTHER STATEMENT PROVIDED BY OR ON BEHALF OF THE MERCURIAL AI PARTIES (WHETHER THROUGH THE PLATFORM OR SERVICES OR OTHERWISE) WILL CONSTITUTE PERSONAL, MEDICAL, OR OTHER PROFESSIONAL ADVICE OR SERVICES OR CREATE A WARRANTY, CONDITION, OR REPRESENTATION OF ANY KIND. YOU SHOULD CONSULT WITH YOUR MEDICAL PROVIDERS AND/OR OTHER APPROPRIATE PROFESSIONAL(S) BEFORE TAKING ANY ACTION (OR REFRAINING FROM TAKING ANY ACTION) REGARDING YOUR MEDICAL CONDITION.
ARTIFICIAL INTELLIGENCE DISCLAIMER. THE PLATFORM RELIES ON TECHNOLOGY SOLUTIONS THAT ENABLE COMPUTERS, COMPUTER SYSTEMS, AND DIGITAL DEVICES TO PROCESS, CREATE, AND ENHANCE ALGORITHMS THAT LEARN, READ, WRITE, CATEGORIZE, CLASSIFY, PREDICT, ENGAGE, INTERACT, GENERATE, PLAY, ANALYZE, MAKE SUGGESTIONS, AND IMITATE WITH APPARENT ACCURACY AND/OR SUGGESTIVE SUPERIORITY, THE OUTPUT REPRESENTING THESE ACTIVITIES AS COMPARED TO HUMANS PERFORMING SIMILAR TASKS OR SERVICES BY ACCESSING AND PROCESSING AVAILABLE HISTORICAL AND CURRENT DATA AND RE-ITERATIVE PROCESSING FOR PURPOSES OF PRODUCING AND IMPROVING SUCH ACTIVITIES, OUTPUTS, AND APPARENCIES (“AI”). YOU HEREBY ACKNOWLEDGE AND AGREE THAT WHEN YOU INTERACT WITH THE PLATFORM AND SERVICES, YOU ARE INTERACTING WITH AI AND NOT A HUMAN.
YOU ACKNOWLEDGE THAT INDUSTRY, REGULATORY, AND LEGAL STANDARDS THAT RELATE TO THE DEVELOPMENT AND USE OF AI ACROSS VARIOUS INDUSTRIES ARE IN VARIOUS STAGES OF DEVELOPMENT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF AI-BASED PRODUCTS AND SERVICES COMPLY WITH YOUR ASSESSMENT OF YOUR RISKS, OBJECTIVES, COMPLIANCE REQUIREMENTS, AND OTHER OBLIGATIONS RELATED TO THE USE OF AI. YOU AGREE TO FULLY INDEMNIFY AND HOLD THE MERCURIAL AI PARTIES HARMLESS FROM AND AGAINST ANY AND ALL MATTERS RELATED TO YOUR USE OF AI WITHIN THE PLATFORM AND SERVICES.
YOU ACKNOWLEDGE THAT THE MERCURIAL AI PARTIES ARE NOT RESPONSIBLE FOR YOUR RELIANCE ON AI-BASED PRODUCTS AND SERVICES, AND YOU WAIVE ALL CAUSES OF ACTION, CLAIMS, AND/OR POTENTIAL CLAIMS AGAINST THE MERCURIAL AI PARTIES THAT MAY ARISE FROM YOUR USE OF OR RELIANCE ON ANY OF OUR AI-BASED PRODUCTS OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT MERCURIAL AI MAY IMMEDIATELY AND WITHOUT PRIOR NOTICE CEASE PROVIDING AI-BASED PRODUCTS AND SERVICES WITHOUT PENALTY OR FURTHER OBLIGATION TO YOU IF MERCURIAL AI DETERMINES IN ITS SOLE DISCRETION THAT CONTINUED PROVISIONS OF SUCH AI-BASED PRODUCTS AND SERVICES MAY VIOLATE LAW OR POSE SIGNIFICANT LEGAL RISKS OR CONTRACTUAL LIABILITY TO THE MERCURIAL AI PARTIES.
THE OUTPUT GENERATED BY YOUR USE OF AND YOUR INTERACTION WITH AI MAY BE PRONE TO ERRORS OR UNINTENDED OR NON-RELEVANT RESPONSES, AND ARE SUBJECT TO THE INTEGRITY OF THE UNDERLYING DATA AND INFORMATION ON WHICH OUR AI TECHNOLOGY IS BASED. AS SUCH, THE MERCURIAL AI PARTIES DO NOT REPRESENT OR WARRANT THAT THE OUTPUT WILL ADDRESS ALL OR ANY OF YOUR REQUIREMENTS OR EXPECTATIONS CONSIDERED IN YOUR DECISION TO ENGAGE WITH THE PLATFORM, AND THE MERCURIAL AI PARTIES DO NOT REPRESENT OR WARRANT THE CONTENT GENERATED IN CONNECTION WITH YOUR SPECIFIC ENGAGEMENT WITH THE PLATFORM.
NOTWITHSTANDING THE OWNERSHIP AND LICENSING RIGHTS SET FORTH IN SECTION 6 (“YOUR MATERIALS”) ABOVE, MERCURIAL AI SHALL BE THE EXCLUSIVE OWNER OF ALL AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS THAT ARE BASED ON 9 YOUR SPECIFIC INFORMATION INPUT. FOR AVOIDANCE OF DOUBT, AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS INCLUDE, WITHOUT LIMITATION, NEW DATA SETS, DATA RELATIONSHIPS, PREDICTIVE FACTORS, GENERAL LEARNING, AND ALGORITHMS, AND ONLY THE DIRECT AND SPECIFIC RESPONSES AND/OR OUTPUT PRODUCED IN RESPONSE TO YOUR SPECIFIC REQUEST ARE EXCLUDED FROM AI-PRODUCED DATA, INFORMATION, AND LEARNING BI-PRODUCTS.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WILL THE MERCURIAL AI PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF THE MERCURIAL AI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE PLATFORM AND/OR SERVICES, UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS OF SERVICE AND YOUR USE OF THE PLATFORM AND/OR SERVICES, SHALL IN ALL EVENTS BE LIMITED TO THE GREATER OF (a) FIFTY DOLLARS ($50.00), OR (b) THE TOTAL FEES ACTUALLY PAID BY YOU TO US (IF ANY) FOR THE PLATFORM AND SERVICES PROVIDED DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE MERCURIAL AI PARTIES’ LIABILITY IS LIMITED TO THE FULLEST EXTENT OF THE LAW.
PLEASE READ THIS SECTION 14 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1 You agree that any dispute, claim, or controversy between you and Mercurial AI and arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Platform or Services (collectively, “Disputes”) will be resolved exclusively by final, binding arbitration between you and Mercurial AI, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or where a party’s conduct may cause the other irreparable injury. The provisions of this Section 14 constitute the parties’ written agreement to arbitrate Disputes under the Federal Arbitration Act.
14.2 The arbitration shall be administered by the American Arbitration Association (“AAA”) and shall be heard by a single arbitrator, pursuant to the AAA’s Commercial Arbitration Rules then in effect (the “AAA Rules”), except as modified by this Section 14.
14.3 To begin an arbitration proceeding, a party must submit the Dispute by making a demand for arbitration, as detailed at https://www.adr.org, and simultaneously send a copy of the completed demand to the other party. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules. The arbitration will be conducted based upon written submissions, unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines that an in-person hearing is necessary, the hearing will proceed in Wilmington, Delaware, unless the arbitrator determines or Mercurial AI agrees that the matter should proceed in the county where you reside.
14.4 The arbitrator will apply and be bound by these Terms of Service, apply applicable law and the facts, and issue a reasoned award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. You and Mercurial AI also agree that the arbitrator may not award multiple or punitive damages. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
14.5 EACH PARTY AGREES THAT IT SHALL BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR AS AN ASSOCIATION. IN ADDITION, EACH PARTY AGREES THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
15.1 These Terms of Service and the Privacy Policy (as each may be revised and amended from time to time), constitute the entire agreement with respect to your access to and use of the Platform and Services.
15.2 Our electronically or otherwise properly stored copy of these Terms of Service will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms of Service in connection with any action or proceeding arising out of or relating to these Terms of Service.
15.3 These Terms of Service shall be construed in accordance with the laws of the State of Delaware without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of Delaware. If for any reason a Dispute proceeds in court, you and Mercurial AI: (i) agree that any such Dispute may only be instituted in a state or federal court located in New Castle County, Delaware and waive any defenses or objections based on the jurisdiction, venue, or convenience of this exclusive venue; (ii) irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (iii) AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
15.4 We may assign our rights and duties under these Terms of Service at any time to any third party without notice. You may not assign these Terms of Service or any of your rights or obligations hereunder, whether directly or indirectly, by operation of law or otherwise, without our prior written consent.
15.5 The failure of Mercurial AI to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
15.6 If any provision of these Terms of Service is held to be invalid, illegal, or unenforceable, the remaining provisions of these Terms of Service will not be affected, and the invalid, illegal, or 11 unenforceable provision will be replaced by such valid, legal, and enforceable provision as comes closest to the intention underlying the invalid, illegal, or unenforceable provision.
15.7 You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Platform and Services must be filed within one (1) year after such claim or cause of action arose or be forever barred.
15.8 Possible evidence of use of the Platform or Services for illegal purposes will be provided to law enforcement authorities.
15.9 Except as otherwise expressly set forth herein, discontinuation of use of the Platform and Services is your sole right and remedy for any dissatisfaction with the Platform, Services, and/or these Terms of Service.
We may change these Terms of Service at any time, and all such changes will be effective immediately upon notice, which we may give by any means, including, but not limited to, by sending a message to the email address that we have on file for you (if any) or posting a revised version of these Terms of Service or other notice on or within the Platform. You should view these Terms of Service often to stay informed of changes that may affect you. Your use of the Platform and Services constitutes your continuing agreement to be bound by these Terms of Service, as they may be amended from time to time.
Please contact us with any questions regarding these Terms of Service at:
contact@mercurial-ai.com
Portal Innovations (Attn: Mercurial AI)
400 N. Aberdeen St., Floor 9
Chicago, IL 60642
