End Customer Terms
These “End Customer Terms” or “Terms” are made between Merge API Inc. (“Merge”) and the End Customer (defined below) and govern the End Customer’s use of the Service (each as defined below).
“End Customer” means a person or entity that accepts and agrees to these Terms as of the earlier date (“Start Date”) where such person or entity either clicks a box indicating its acceptance of these Terms or uses the Service.
Merge reserves the right to modify or update these Terms in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) End Customer’s continued use of the Service.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE END CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THESE TERMS ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THESE TERMS AND THESE TERMS APPLY TO SUCH ENTITY WHICH IS DEEMED THE END CUSTOMER.
If End Customer and Merge have executed a written agreement governing End Customer’s access to and use of the Service as an End Customer, then the terms of such signed agreement will govern and will supersede these Terms.
Upon the Start Date, End Customer will connect the Service to at least one Agent service, via an API integration, in order to transfer End Customer Data to Merge for the purposes of making such End Customer Data available to End Customer's Service Provider (i.e., Merge's Customer).
Capitalized terms used in these Terms are as defined below, in Merge’s DPA or BAA.
"Affiliate" means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity.
"Agent" means any third party with which End Customer has a license that transfers End Customer Data to Merge on behalf, or at the direction, of End Customer. Agents include Partners and Merge Customers (each as defined in the DPA).
"Aggregated Statistics" means aggregate and anonymized data and information derived from Customer Data and/or End Customer Data that is used by Merge for internal business purposes including to provide, develop and improve the Service. Aggregated Statistics are not Customer Data or End Customer Data and do not consist of Personal Data (as defined in the DPA).
"API(s)" means any application programming interface.
"BAA" means the Business Associate Agreement available at: http://merge.dev/baa.
"Beta Features" means any Service features, functionality or services which Merge may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
"Documentation" means the written or online user manuals, help files, specification sheets, or other documentation regarding the Service made available by Merge.
"DPA" means the Data Processing Agreement available at https://merge.dev/data-processing-agreement.
"End Customer Data" means any data transferred to Merge by End Customer itself via the Service for the benefit of Customer, and/or by Customer, acting on behalf of an End Customer, which may consist of, but is not limited to, End Customer Personal Data (including information received by Merge from Partner Applications licensed by End Customers), User login information, names, e-mail addresses, phone numbers, physical or mailing addresses, information related to work history, transactional and account information, pay rates and tax information, health plan information, gender, marital status and veteran status.
"Merge Integration(s)" means any Merge API integration, that integrates a Partner Application and Customer Application with the Service, which is made available by Merge during the Term to End Customers and Customer.
"Partner" means a third-party provider of a SaaS solution used by End Customer (e.g., typically in the HRIS, ATS, or accounting space).
"Service" means Merge’s proprietary Software-as-a-Service integration solution for platforms (such as for HR, payroll, recruiting and accounting), which includes the Software, Documentation, and all modifications, updates, and upgrades as well as derivative works to each of the foregoing.
"Service provider" means End Customer’s vendor that requires access to End Customer Data in order to deliver its products or service to the End Customer (also referred to as Merge’s Customer in the DPA).
"Software" means the software that Merge develops and maintains in order to provide the Service, and all modifications, updates, upgrades thereto and derivative works thereof.
"Term" means the period of time commencing on the Start Date and continuing for so long as the End Customer maintains at least one API connection between an Agent’s service and the Service.
"Users" means individuals or entities that are authorized by Customer to use the Service.
- ACCESS TO AND USE OF THE SERVICE
- PARTY OBLIGATIONS
- TERMINATION & SURVIVAL
- DATA LICENSE & PROTECTION
The parties acknowledge that either party may receive non-public information which is proprietary or confidential to the other party or its affiliated companies. Any and all such information shall be deemed confidential and proprietary. End Customer Data will be deemed and treated as confidential information. The parties agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever, other than the activities directly related to these Terms.
- REPRESENTATIONS AND WARRANTIES
If Merge becomes, or in Merge’s opinion is likely to become, the subject of an infringement or misappropriation claim, Merge may, at its option and expense: (a) procure for End Customer the right to continue using the Service; (b) replace the Service (including any component part) with a non-infringing substitute subject to End Customer’s prior written approval; or (c) modify the Service so that it becomes non-infringing. If none of the foregoing alternatives are available, Merge shall notify End Customer, and End Customer may elect to terminate the license immediately pursuant to Section 3.
Merge will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (x) any unauthorized use, reproduction, or distribution of the Service or Merge’s intellectual property rights by the End Customer Indemnified Parties which is the subject of the claim; or (y) any unauthorized combination of, or modification to, the Service or Merge’s intellectual property rights, other than as expressly approved by Merge that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
- LIMITATIONS OF LIABILITY
These Terms are the entire agreement between End Customer and Merge and supersede all prior agreements and understandings concerning the subject matter hereof. End Customer and Merge are independent contractors, and the Terms will not establish any relationship of partnership, joint venture, or agency between End Customer and Merge. Failure to exercise any right under these Terms will not constitute a waiver. There are no third-party beneficiaries to these Terms. Any notice provided by one party to the other under these Terms will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of these Terms is found unenforceable, these Terms will be construed as if it had not been included.These Terms are governed by the laws of California without reference to conflicts of law rules. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to these Terms, will be finally determined by arbitration conducted by the JAMS by a single arbiter who will be fluent in written and spoken English. The place of such arbitration will be in San Francisco, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to these Terms will be subject to the jurisdiction of the state and federal courts of San Francisco County, California, U.S.A.
This Agreement is governed by the laws of California without reference to conflicts of law rules. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the JAMS by a single arbiter who will be fluent in written and spoken English. The place of such arbitration will be in San Francisco, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts of San Francisco County, California, U.S.A.
Last Updated: June 23, 2022