End Customer Terms

These “End Customer Terms” or “Terms” are made between Merge API Inc. (“Merge”) and the End Customer and govern the End Customer’s use of the Service (each as defined below).

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“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.

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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.

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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 IS 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.

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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.

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DEFINITIONS

Capitalized terms are as defined below, in the body of these Terms, or in Merge’s DPA or BAA.

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“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.

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“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).

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“Aggregated Statistics” means aggregated and anonymized data derived from End Customer Data and/or use of the Service. Aggregated Statistics are not End Customer Data and do not consist of Personal Data (as defined in the DPA).

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“API(s)” means any application programming interface.

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“BAA” means the Business Associate Agreement available at: http://merge.dev/baa.

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"Beta Features" means any Service features, functionality or services which Merge may make available to End Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.

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“Documentation” means the written or online user manuals, help files, specification sheets, or other documentation regarding the Service made available by Merge.

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“DPA” means the Data Processing Agreement available at https://merge.dev/legal/data-processing-agreement.

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“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.

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“Merge Integration(s)” means any Merge API integration that integrates an Agent application by means of the Service, and that is made available by Merge during the Term to End Customers.

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“Partner” means a third-party provider of a SaaS solution used by End Customer (e.g., typically in the HRIS, ATS, or accounting space).

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“Service” means Merge’s proprietary, Software-as-a-Service integration solution for platforms (such as for HR, payroll, recruiting and accounting), which includes the Merge Integration(s), Software, Documentation, and all modifications, updates, and upgrades as well as derivative works to each of the foregoing.

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“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).

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“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.

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“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.

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“Users” means individuals or entities that are authorized by the End Customer to use the Service.

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ACCESS TO AND USE OF THE SERVICE

1.1

Right to Access and Use Service. 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). Merge grants End Customer a royalty-free, nonexclusive, nontransferable, worldwide right during the Term to internally use the Service in accordance with the Documentation and these Terms.

1.2

Restrictions. End Customer will not: (a) access (or allow a third party to access) the Service in order to benchmark, or monitor the availability, security, performance, or functionality of the Service, for any competitive purposes without Merge’s express written consent; (b) rent, lease or otherwise permit third parties (or other persons not authorized by these Terms) to use the Service; (c) use the Service to provide services to third parties (e.g., End Customer cannot use the Service as a service bureau); (d) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Service, or any of their components; (e) circumvent or disable any security or other technological features or measures of the Service or use the Service in a manner that Merge reasonably believes poses a threat to the security of Merge-controlled computer systems; or (f) use the Service to conduct any fraudulent, malicious, or illegal activities (each of (a) through (f), a “Prohibited Use”).

1.3

Beta Features. Beta Features made available by Merge are provided to End Customer for testing purposes only. Merge makes no commitment to provide Beta Features in any future versions of the Service. End Customer is not obligated to use Beta Features. Merge may immediately and without notice remove Beta Features for any reason without liability to End Customer. Notwithstanding anything to the contrary in these Terms, Merge does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.

OBLIGATIONS

2.1

Merge Obligations. Merge is responsible for providing the Service in conformance with these Terms and applicable Documentation. Merge Integrations chosen by End Customer integrate Agent applications with the Service via an API to enable the transfer of End Customer Data to Merge, and/or Agents, for processing by Merge for the mutual benefit of End Customer and its Agents, all subject to these Terms and DPA.

2.2

End Customer Obligations. End Customer will use the Service only in accordance with the Documentation and in compliance with all applicable laws, including procurement and maintenance of any applicable licenses, permits and consents. End Customer will ensure that the Service is neither directly or indirectly exported, re-exported, or used to provide services in violation of the export laws or regulations of the United States or any other country.

TERMINATION & SURVIVAL

3.1

Merge Suspension & Termination Rights. Merge may immediately suspend these Terms upon notice to End Customer (which may take the form of an e-mail) if Merge reasonably believes that End Customer has violated these Terms. Merge may terminate these Terms for cause upon 30 days’ written notice to the End Customer of a material breach if such breach remains uncured at the expiration of the 30-day period.

3.2

End Customer Termination Rights. End Customer may terminate these Terms at any time, including by means of instructing a Service Provider to do so on End Customer’s behalf via the Service, or by severing all of its API connections to the Service and notifying Merge in writing of such termination.

3.3

Effect of Termination. Upon any termination by End Customer, or by Service Provider acting at the direction of End Customer, Merge will delete all End Customer Data from the Service by the date which is no later than 30 days from the date of such termination.

3.4

Survival. The following provisions will survive any expiration or termination of these Terms: Sections 5; 6; and 8 through 10.

DATA LICENSE & PROTECTION

4.1

Data License. In connection with its use of the Service, End Customer, including its Users and Agents, will transfer End Customer Data to Merge. End Customer grants Merge a limited license during the Term to use End Customer Data to provide and maintain the Service and develop Aggregated Statistics.

4.2

DPA. Merge will process all End Customer Data for the purposes set forth in these Terms and in accordance with the DPA.

4.3

BAA. Merge will process all PHI (as defined in the BAA) for the purposes set forth in these Terms and in accordance with the BAA.

4.4

Security and Privacy. Merge maintains industry-standard physical, technical, and administrative safeguards in order to protect End Customer Data in accordance with the Merge’s “Security Protocols” set forth in Annex II (Technical and Organisational Measures) of the DPA.

4.5

Marketplace Information. Merge may share names and contact information of End Customer and Agents for the development of Merge’s Partner ecosystem.

CONFIDENTIALITY

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.

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OWNERSHIP

6.1

Merge Property. As between the parties, Merge owns and retains all right, title, and interest in and to the Service, Feedback (as defined below) and Aggregated Statistics. Except for the limited license granted to End Customer in Section 1.1, Merge does not by means of these Terms or otherwise transfer any rights in the Service to End Customer, and End Customer will take no action inconsistent with Merge’s intellectual property rights in the Service.

6.2

End Customer Property. As between the parties, End Customer owns and retains all right, title, and interest in and to the End Customer Data and does not by means of these Terms or otherwise transfer any rights in the End Customer Data to Merge, except for the limited license set forth in Section 4.1.

6.3

Feedback. End Customer may provide comments, suggestions and recommendations to Merge with respect to the Service (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes) (collectively, “Feedback”). In such event, Merge may freely use and exploit any such Feedback without any obligation to End Customer, unless otherwise agreed upon by the parties in writing. End Customer assigns to Merge any proprietary right that End Customer may have in or to the Feedback.

REPRESENTATIONS AND WARRANTIES

7.1

Mutual Representations and Warranties. Each party represents and warrants it has validly entered into these Terms and has the legal power to do so.

7.2

End Customer Representations and Warranties. End Customer represents and warrants it has all rights necessary to: (i) grant Merge the licenses set forth in these Terms; and (ii) permit Merge to integrate the Service with each Agent.

7.3

Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7, THE SERVICE AND BETA FEATURES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. MERGE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. MERGE DOES NOT WARRANT THAT THE SERVICE OR BETA FEATURES (A) ARE ERROR-FREE, (B) WILL PERFORM UNINTERRUPTED, OR (C) WILL MEET END CUSTOMER’S REQUIREMENTS.

INDEMNIFICATION

8.1

By Merge. Merge will defend End Customer, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “End Customer Indemnified Parties”), from any third-party claim, demand, dispute, suit or proceeding, and Merge will indemnify the End Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the End Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Service including End Customer’s use of the Service infringes or misappropriates any patent, trademark or copyright of such third party.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.

8.2

By End Customer. End Customer will defend Merge, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “Merge Indemnified Parties”), from any third-party claim, demand, dispute, suit or proceeding, and End Customer will indemnify the Merge Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the Merge related to: (a) End Customer or a User engaging in a Prohibited Use; (b) End Customer’s breach of Section 7.2 (End Customer Representations & Warranties); and (c) any allegation by a governmental body that use of the Service by End Customer, or Merge’s processing of End Customer Data at End Customer’s direction and/or as permitted hereunder, has violated an applicable law.

8.3

Indemnification Process. The indemnified parties will: (a) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (b) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (c) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.

LIMITATIONS OF LIABILITY

9.1

NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THESE TERMS, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

9.2

EXCEPT WITH RESPECT TO EXCLUDED CLAIMS AND UNCAPPED CLAIMS (EACH AS DEFINED BELOW), IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THESE TERMS, EXCEED $1,000.

THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.

9.3

“Excluded Claims” means any claim and/or liability associated with any breach by Merge of Sections 4.2 (DPA), 4.3 (BAA), and 4.4 (Security Protocols) including for clarity with respect to any claim of liability associated with the DPA, BAA or the Security Protocols. Merge’s total, cumulative liability for all Excluded Claims will not exceed $10,000.

9.4

“Uncapped Claims” means any claim or liability associated with: (a) End Customer’s breach of Section 7.2 (End Customer Representations & Warranties); (b) either party’s breach of confidentiality (but not relating to any liability associated with Merge’s security obligations with respect to End Customer Data which remains subject to the Excluded Claims cap); (c) either party’s respective indemnification obligations under Section 8; or (d) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.

MISCELLANEOUS

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. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.

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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 arbitral 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.

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Last Updated: April 14, 2023