Master Services Agreement
This Merge Master Services Agreement (“Agreement”) is made between Merge API, Inc., a Delaware corporation having its principal place of business at 415 Mission Street, WeWork, Floor 37, San Francisco, CA 94105 (“Company” or “Merge”), and Customer (defined below) and govern the Customer’s use of the Service (each as defined below).
“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Start Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses the Service.
Merge reserves the right to modify or update this Agreement 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) Customer’s continued use of the Service.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
If Customer and Merge have executed a written agreement governing Customer’s access to and use of the Service as a Merge customer, then the terms of such signed agreement will govern and will supersede this Agreement.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement, an Order Form, 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.
"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.
"Customer Data" means any data transferred to Merge by Customer which may consist of, but is not limited to, User login information and Personal Data such as names, e-mail addresses and phone numbers.
"Customer Application" means the application owned and operated by Customer which is described in an Order Form or otherwise approved by Merge in writing.
"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(s)" means Customer’s customer that enables at least one API integration between the Service, a Partner Application and the Customer Application, that enables and directs Merge to process End Customer Data.
"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.
"Order Form" means each order document executed in writing between the parties for the purchase of a Subscription to the Service. Upon execution, each Order Form is incorporated herein by reference.
"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, and as further specified in an Order Form.
"Partner" means a third-party provider of a SaaS solution used by End Customer (e.g., typically in the HRIS, ATS, or accounting space).
"Partner Application(s)" means any application owned and operated by a Partner including those described in an Order Form or otherwise approved by Merge in writing.
"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.
"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.
"Subscription Term" means the length of the Subscription set forth on the applicable Order Form.
"Support" has the meaning set forth in Section 2.2 below, unless otherwise stated in the Order Form.
"Users" means individuals or entities that are authorized by Customer to use the Service.
- ACCESS TO AND USE OF THE SERVICE
- MERGE OBLIGATIONS
- CUSTOMER OBLIGATIONS
- DATA LICENSE & PROTECTION
- TERM AND TERMINATION
- FEES AND PAYMENT
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER
Merge will maintain in full force and effect during the Term:
a. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property damage;
b. Auto liability insurance covering non-owned and hired vehicles, with coverage limits of not less than $1,000,000 per occurrence for bodily injury and property damage;
c. Worker’s compensation insurance as required by applicable law; and
d. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $2,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Service, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service.
Insurance carriers will be rated A-VII or better by A.M. Best Provider. Merge’s coverage will be considered primary without right of contribution of Customer’s insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Merge’s contractual liability for indemnification or any other liability of Merge under this Agreement.
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 Customer the right to continue using the Service; (b) replace the Service (including any component part) with a non-infringing substitute subject to 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 Customer, and Customer may elect to terminate the license immediately pursuant to Section 5.
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 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
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
This Agreement is the entire agreement between Customer and Merge and supersede all prior agreements and understandings concerning the subject matter hereof. Customer and Merge are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Merge. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included.
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