1. Services. Merrill will provide Services set forth in the applicable Statement of Work accordance with these General Terms and Conditions, which together are referred to as the “Agreement.” In the event of a conflict between the terms of the SOW and these General Terms and Conditions, the terms of the applicable SOW shall control. Merrill rejects the inclusion of any additional terms proposed by Customer, unless expressly agreed to in writing.
2. Pricing; Payment Terms; Taxes.
(a) Fees. Customer shall pay to Merrill the fees (the “Fees”) in accordance with Services performed under the Statement of Work (“SOW”).
(b) Change Orders. In the event that the scope of the Services changes from the Statement of Work, the parties shall mutually agree, in writing, upon revised services, deadlines, Fees, or other matters.
(c) Payment. Customer agrees to pay all fees and taxes owing for Services within thirty (30) days of receipt of an invoice from Merrill.
(d) Term. The term of this agreement is one year unless otherwise stipulated in the SOW. The agreement will automatically renew unless either party notifies the other of intent not to renew within 60 days of the end of the then current term.
(e) Termination for Convenience. This Agreement may be terminated by either party with 90 days written notice.
(f) Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement (failure to pay any fees due is a material breach), if the non-breaching party gives the breaching party 30 days written notice of the breach, and the breaching party fails to cure within such 30-day period. Any notice of termination shall state the reason for and effective date of the termination.
3. Representations and Warranties.
(a) Merrill Representations. Merrill represents and warrants to the Customer that it will provide the Services in accordance with the specifications set forth in the applicable SOW and otherwise in a good and workmanlike manner.
(b) Customer Representations. Customer represents and warrants to Merrill that it has obtained, and throughout the term will obtain, all permissions necessary to copy or otherwise reproduce documents provided to Merrill in connection with the Services under any applicable SOW.
(c) Both Parties. Both Parties will use up-to-date, generally accepted virus detection devices to ensure that any electronic documents, files, or emails transmitted to either Party will not contain a virus, Trojan horse, work or other harmful component.
(d) Disclaimer of Warranties. Except as expressly set forth in this Agreement, Merrill makes no representation or warranty with respect to the Services Provided and expressly disclaims all warranties with regard to the Services and the Merrill Material, including, but not limited to, all warranties, express or implied, of non-infringement, merchantability, and fitness for any particular purpose.
(e) Non-Exclusivity. Nothing in this Agreement will be construed to require Customer to contract all of it litigation support services to Merrill, nor shall it be construed to prevent Merrill from providing similar services to any other customer, including competitors or adverse parties of Customer.
4. Ownership and Responsibilities.
(a) Customer Ownership. As between the Customer and Merrill, Customer owns all original content and information provided to Merrill in conjunction with the Services, and, when fully paid for, Customer will own all modified content and information as specified under the applicable SOW.
(b) Customer Responsibilities. Customer will provide Merrill with clear and legible copies of original information and work with Merrill to correct any problems associated with the original information. Customer agrees to retain a complete set of original documentation before transmitting any information to Merrill.
5. Confidentiality.
(a) Neither party will disclose to any person or entity any information or data fixed in a tangible medium and marked as confidential or proprietary information, or any information disclosed as a result of the parties’ discussions, visually or orally, and that should reasonably have been understood by the receiving party, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential (“Confidential Information”). Confidential Information does not include information which: (i) is or becomes a part of the public domain without breach of this Agreement; however, the act of copyrighting shall not be deemed to be placing the copyrighted material in the public domain; (ii) was in receiving party’s possession before being disclosed under this Agreement; or (iii) is received in good faith by receiving party from a third party without a duty of confidentiality. The parties will protect Confidential Information with commercially reasonable efforts and will use such Confidential Information only in connection with fulfilling its obligations under the Agreement. Customer will not use Merrill Confidential Information to assist in creating or attempting to create, by reverse engineering or otherwise, the Source Code, to make a new product or system, or repair any product or system, unless expressly authorized by Merrill. The receiving party will return or certify destruction of all Confidential Information (except that which exists on backup systems, which shall be destroyed in the normal course of business) to the disclosing party upon completion of such obligations for its use, or upon request.
Nothing in this Agreement is intended to transfer any existing intellectual property rights to the other party.
(b) In the event that a party is requested or compelled by court order, decree or subpoena, or other process or requirement of law to disclose Confidential Information, the party shall provide the other party with reasonably prompt notice of any such disclosure requirement (unless such notice is prohibited by law) so that the party may, at its option and expense, seek a protective order or other appropriate remedy.
(c) To the extent Merrill is providing any Internet based or repository services, Customer acknowledges that the Internet is an open system and that Merrill cannot guarantee that third parties will not unlawfully access Merrill’s proprietary websites or databases and obtain the Customer’s Content. Customer acknowledges and agrees that Merrill will not be liable from any breach of this Agreement, to the extent that a third party gains access to Merrill’s proprietary websites or databases through no fault of Merrill so long as Merrill is otherwise complying with its obligations.
6. Insurance. Merrill maintains the following insurance coverage with companies with an A.M. Best rating of A-IX or better: (a) Worker’s Compensation, Statutory; (b) Employers’ Liability, $1,000,000; (c) Comprehensive General Liability, $1,000,000 Combined Single Liability; Limit per Occurrence, including contractual liability, completed operations insurance and broad form property damage liability coverage; (d) Comprehensive Automobile Liability, $1,000,000 Combined Single Liability, Limit per Occurrence; (e) Umbrella/Excess Liability Insurance, $5,000,000 Combined Single Liability, Limit per Occurrence. Upon request, Merrill shall furnish a certificate to the Customer certifying that the above insurance coverage is in effect.
7. Indemnification.
(a) General. Each Party agrees to indemnify, defend, and hold harmless the other Party, its affiliates, and its licensors, and their respective officers, directors, employees, and agents, from and against any and all claims, suits, demands, damages, liabilities, expenses (including reasonable fees and disbursements of counsel), judgments, settlements and penalties of every kind (“Claims”) by a third party arising out of or related to: (i) any gross negligent or willful acts or omissions; (ii) failure to pay any Taxes; or (iii) any allegation that any material infringes any U.S. patent, copyright, trademark or trade secret of a third party.
(b) Procedure. The party seeking indemnification under this Section 8 (the “Indemnitee”) will (i) promptly notify the party required to provide indemnification hereunder (the “Indemnifying Party”) of any such claim; (ii) tender to the Indemnifying Party the right to defend and settle such claim through counsel of its choice; and (iii) provide the Indemnifying Party with any and all cooperation reasonably necessary for the defense or settlement of such claim.
(d) Infringement. In addition, in the case of a claim of alleged infringement, upon notice of any such claim, the Indemnifying Party will: (i) procure the right to allow the Indemnitee to continue to use material ; or (ii) replace or modify the material to make it non-infringing; provided, however, that such modified item is functionally equivalent to that provided hereunder; provided further, that in the event that Indemnifying Party determines the remedies in (i) or (ii) to be impracticable in the exercise of its sole discretion, the Indemnifying Party may terminate this Agreement. The foregoing obligation to indemnify will not apply to the extent that any claim of infringement results from any modification or unauthorized use of any material.
8. Limitation of Liability. Neither Party will under any circumstances be liable under any theory of recovery, whether based in contract, in tort (including negligence and strict liability), under warranty, or otherwise, for any punitive, indirect, special, incidental, or consequential loss or damage. The Parties agree that the remedies provided herein are exclusive and that under no circumstances shall the total aggregate liability of either Party exceed the total price paid (or payable) to Merrill under the applicable SOW for the twelve (12) month period immediately preceding the event giving rise to the liability.
9. General.
(a) Governing Law and Jurisdiction. This Agreement will be construed and enforced in accordance with the laws of the State of Minnesota.
(b) Severability. If any provision of this Agreement is or becomes invalid or unenforceable that shall not affect any other provision of this Agreement.
(c) No Third Party Beneficiaries. Nothing in this Agreement will entitle any person or entity (other than a party hereto and its respective permitted assigns) to any claim, cause of action, remedy or right of any kind, and no such person or entity will be deemed to be an intended or unintended third party beneficiary of this Agreement.
(d) Modification of Terms. These Terms and Conditions may be modified from time to time. The revision posted on the date of Customer’s SOW will apply.
Terms specific to Lextranet Review System
(A) Service Availability. Except for scheduled maintenance time that is reasonable in timing and duration (“Maintenance Period”), the System will be generally available to and connected to the internet. If the System is not available for 90 minutes or more on any one occasion or for more than three hours in any month (excluding in both cases any Maintenance Period), then Customer will be entitled to as its sole remedy a service credit equal to one day of Monthly Hosting Charges for each day in which the System is not available for 60 minutes or more. To be entitled to that credit, Customer must notify Merrill of the unavailability of the System promptly upon its discovery.
(B) Restrictions on Use. Customer and Authorized Users shall make no attempt to (i) resell or transfer the Services or access to the System; (ii) use the Merrill Corp website to conduct illegal activities; (iii) transmit, distribute or introduce documents or other material that infringe or violate any intellectual property rights, publicity/privacy rights, law or regulation, that are defamatory, obscene or child pornographic, or that contain any viruses or programming routines intended to damage or disrupt the Services; (iv) cause damage to, or circumvent the security or authorization procedures of, the Merrill Corp website; (vi) view unauthorized portions or areas of the Merrill Corp website; (vii) use the System to transmit unsolicited, non-germane to the System email message, including “spam” mail; (viii) tamper with email headers or other identifying features of messages sent within the System; (ix) create or forward chain letter or pyramid schemes of any kind; or (x) cancel or postpone posted messages, other than the sender’s own, without appropriate authorization to do so.
(C) Customer Data. Customer will provide Customer Data to Merrill in conformance with Merrill’s Document Submission Best Practices Guidelines (“Guidelines”), which are available to Customer upon request. Failure of the Customer to meet the standards set forth in the Guidelines may result in charges for correcting data, delayed access to the System or Customer Data for a Designated Matter, or Customer Data being rejected for processing by Merrill.
(D) System License. Subject to these terms and conditions, Merrill grants Customer and its Authorized Users the limited right to access the System solely in connection with Customer’s receipt of Services in connection only with Designated Matters. Customer shall not, and shall not allow any Authorized User to, modify, rent, lease, distribute, create a derivative or collective work of, reverse-engineer, decompile or disassemble all or part of the System. Except as expressly provided in this Agreement, all rights, title and interest in and to the System and Services remain with Merrill or its licensors. Customer shall not, and shall not allow any Authorized User to, remove any proprietary notice of Merrill from the System or any of its documentation.
(E) Data License. Subject to these terms and conditions, Customer grants Merrill a limited license to use the Customer Data to provide Services to Customer. Except as expressly provided in this Agreement, all rights, title and interest in and to the Customer Data remain with Customer or its licensors.
(F) No Legal Services Provided. Customer acknowledges and agrees that the Services principally constitute information management services, and that none of the Services constitute or are intended to constitute the rendering of legal advice or services.
Rev. 0411
