MERCER MOBILITY EXCHANGE™
SOFTWARE LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY BEFORE USING THE SYSTEM
THE COPYRIGHT, DATABASE RIGHTS AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS IN THE PROGRAMS, TOOLS, MODULES DOCUMENTATION, INFORMATION, SURVEY MATERIALS, AND DATA CONTAINED WITHIN THE MERCER MOBILITY EXCHANGE ARE AND REMAIN THE PROPERTY OF MERCER (US) INC. (“MERCER”). YOU ARE LICENSED TO ACCESS AND USE THE MERCER MOBILITY EXCHANGE ONLY IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (THE “LICENSE”). IF AN AFFILIATE OF MERCER HAS SUPPLIED ACCESS TO THIS SOFTWARE, THE AFFILIATE HAS AUTHORITY TO ENTER INTO THIS LICENSE ON MERCER’S BEHALF, AND ALL REFERENCES TO MERCER HEREIN INCLUDE REFERENCES TO SUCH AFFILIATE.
WHEN YOU CLICK "I accept these terms" BELOW TO ACCEPT THIS LICENSE, YOU AGREE THAT THE MERCER MOBILITY EXCHANGE IS INTENDED ONLY FOR INTERNAL USE FOR INFORMATION PURPOSES ONLY BY THE ORGANIZATION WHOSE FULL CORPORATE NAME HAS BEEN IDENTIFIED TO MERCER IN THE ORDER FORM (THE “ORDER”) AS THE CLIENT (“CLIENT”). BY PROCEEDING AND ACCESSING THE MERCER MOBILITY EXCHANGE, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE ON BEHALF OF THE CLIENT. ACCORDINGLY, REFERENCES TO “YOU” MEAN REFERENCES TO THE CLIENT. THE MERCER MOBILITY EXCHANGE AND THE INFORMATION AND DATA CONTAINED THEREIN MAY NOT BE COPIED, MODIFIED, SOLD, TRANSFORMED INTO ANY OTHER MEDIA, OR OTHERWISE TRANSFERRED IN WHOLE OR IN ANY PART TO ANY PARTY OTHER THAN THE CLIENT AND ITS PRESCRIBED USERS (THE “USERS”), WITHOUT PRIOR WRITTEN CONSENT FROM MERCER. ACCESSING THIS INFORMATION EITHER THROUGH ONLINE ACCESS, PDF, OR XLS, MEANS THAT YOU HAVE ACCEPTED DELIVERY OF YOUR REPORTS AND THE TERMS OF THIS LICENSE AGREEMENT AND THAT YOU AGREE TO PAY THE INVOICE, IF FEES APPLY.
YOU SHOULD THEREFORE READ THIS LICENSE CAREFULLY BEFORE CLICKING ON “I accept these terms” BELOW OR ACCESSING THE MERCER MOBILITY EXCHANGE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE, YOU CANNOT ACCESS THE MERCER MOBILITY EXCHANGE. IF IT HAS BEEN MORE THAN THIRTY (30) DAYS SINCE THE MERCER MOBILITY EXCHANGE HAS BEEN MADE AVAILABLE TO YOU AND YOU HAVE NOT ACCESSED IT, NO REFUNDS WILL BE PROVIDED.
1.1 Subject to the terms and conditions of this License and upon receipt of full consideration, Mercer agrees to grant you a limited, non-exclusive license to access and use the Mercer Mobility Exchange on personal computers or a local area network in the normal places of business of your company, or through a secure remote network access facility provided by you. The Mercer Mobility Exchange and the information and data contained therein is for your internal research and analysis purposes only. You will not provide access to the Mercer Mobility Exchange, or to any information contained therein, to anyone other than the prescribed Users. Mercer has the right at any time to receive full and complete reporting from you of these locations and the individuals provided with access to the Mercer Mobility Exchange.
1.2 Information to be provided
1.2.1. Any information that you are required to supply (or which is supplied on your behalf) is expected to be accurate and complete. You remain accountable for the accuracy of your data. Problems with information quality and/or delays in providing such information may result in inaccurate calculations.
1.2.2. You acknowledge and accept that all figures contained in surveys/questionnaires will be estimates derived from sample surveys and subject to the limits of statistical errors/rounding up or down.
2. DISCLAIMER OF WARRANTIES
2.1 EXCEPT AS EXPRESSLY SET OUT IN THIS LICENSE, MERCER MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE MERCER MOBILITY EXCHANGE OR ANY PART THEREOF, AND DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND TO YOU OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, REPRESENTATIONS AND WARRANTIES REGARDING ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND/OR FREEDOM FROM COMPUTER VIRUS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MERCER MOBILITY EXCHANGE.
2.2 YOU ACCEPT THE MERCER MOBILITY EXCHANGE ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE THAT THE MERCER MOBILITY EXCHANGE AND THE INFORMATION AND DATA PROVIDED THEREIN ARE FOR GENERAL INFORMATION AND USE ONLY. IN PARTICULAR, THE MERCER MOBILITY EXCHANGE DOES NOT CONSTITUTE ANY FORM OF ADVICE, RECOMMENDATION, REPRESENTATION, OR ARRANGEMENT BY MERCER. MERCER DOES NOT WARRANT THE ACCESS OR USE OF THE MERCER MOBILITY EXCHANGE OR THE INFORMATION AND DATA PROVIDED THEREIN IN ANY SPECIFIC SITUATION OR FOR ANY SPECIFIC APPLICATION, NOR DOES MERCER WARRANT THAT THE MERCER MOBILITY EXCHANGE WEB SITE WILL BE ACCESSIBLE AT ALL TIMES OR THAT IT WILL BE ERROR FREE.
2.3 MERCER MAKES NO WARRANTIES OF ANY KIND AS TO THE ACCURACY OF THE DATA OR ASSUMPTIONS CONTAINED IN OR ENTERED INTO THE MERCER MOBILITY EXCHANGE, NOR DOES IT ASSUME ANY RESPONSIBILITY FOR THE CONSEQUENCES OF ANY ERRORS OR OMISSIONS. YOU ASSUME THE ENTIRE LIABILITY AND RESPONSIBILITY FOR THE DATA AND ASSUMPTIONS ENTERED BY USERS INTO ANY PARTS OF THE MERCER MOBILITY EXCHANGE THAT HAVE THE FUNCTIONALITY TO RECEIVE USER DATA AND FOR ANY REPRESENTATIONS OR CONCLUSIONS DRAWN FROM SUCH DATA OR ASSUMPTIONS.
2.4 MERCER ASSUMES NO RESPONSIBILITY FOR THE EFFECTIVENESS OF ANY ENCRYPTED DATA, NOR WILL IT GUARANTEE THAT AN ENCRYPTION ALGORITHM WILL BE INDECIPHERABLE. MERCER MAKES NO CLAIMS OR WARRANTIES REGARDING THE VIABILITY, INTEGRITY OR INVINCIBILITY OF THE ENCRYPTION USED, NOR WILL MERCER ACCEPT RESPONSIBILITY FOR THE SUCCESS OR FAILURE OF THE SECURE SERVER TO PROPERLY ENCRYPT DATA. BY ACCESSING THE MERCER MOBILITY EXCHANGE, YOU ASSUME ANY RISKS THAT THE ENCRYPTION MAY BE DECIPHERABLE.
3. LIMITATION OF LIABILITY
3.1 EXCEPT IN RESPECT OF PERSONAL INJURY OR DEATH CAUSED DIRECTLY BY MERCER’S NEGLIGENCE, THE LIMIT OF MERCER’S OR ITS AFFILIATES’ LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS CONCERNING PERFORMANCE OR NON-PERFORMANCE BY MERCER OR ITS AFFILIATES RELATED TO MERCER’S OBLIGATIONS UNDER THIS LICENSE SHALL NOT, IN THE AGGREGATE, EXCEED THE GREATER OF THE FEES PAID BY YOU TO MERCER FOR ACCESS TO AND USE OF THE MERCER MOBILITY EXCHANGE (AS SPECIFIED IN THE ORDER) FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM OR CLAIMS ARISE, OR US$500.00 (U.S. FIVE HUNDRED DOLLARS).
3.2 IN NO EVENT SHALL MERCER OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES, INCLUDING, WITHOUT LIMITATION: LOSS OF SALES OR REVENUES, LOSS OF GOODWILL, LOSS OF BUSINESS INFORMATION, OR LOSS OF SAVINGS OR PROFITS, BASED ON ANY THEORY OF LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH: THIS LICENSE, THE ACCESS, USE OR INTERPRETATION OF THE INFORMATION ON THE MERCER MOBILITY EXCHANGE OR ANY INFORMATION ON A LINKED SITE, THE INABILITY TO USE SUCH INFORMATION, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE. THIS PARAGRAPH APPLIES EVEN IF MERCER, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES.
3.3 WITHOUT LIMITATION TO THE FOREGOING, YOU ACKNOWLEDGE THAT THE MERCER MOBILITY EXCHANGE AND THE ASSUMPTIONS, INFORMATION AND DATA CONTAINED THEREIN MAY BE INCOMPLETE OR CONDENSED AND THAT THE ASSUMPTIONS, INFORMATION AND DATA OBTAINED THROUGH YOUR ACCESS AND USE OF THE MERCER MOBILITY EXCHANGE ARE FOR GENERAL INFORMATION PURPOSES ONLY AND ARE NOT INTENDED AS, NOR IMPLIED TO BE, A SUBSTITUTE FOR PROFESSIONAL ADVICE. IN NO EVENT WILL MERCER OR ITS AFFILIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DECISION MADE OR ACTION TAKEN IN RELIANCE OF THE RESULTS OR CONCLUSIONS OBTAINED THROUGH THE ACCESS AND USE OF SUCH INFORMATION OR DATA.
3.4 YOU ACKNOWLEDGE THAT NO DEFENSE OR INDEMNITY OF ANY KIND IS PROVIDED HEREUNDER BY MERCER OR ITS AFFILIATES WITH RESPECT TO ANY CLAIM, DEMAND, CAUSE OF ACTION, COST, LOSS, DAMAGE, EXPENSE OR LIABILITY ARISING FROM OR BASED ON YOUR OR ANY THIRD PARTY’S USE OF OR INABILITY TO USE THE MERCER MOBILITY EXCHANGE.
3.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. ANY RIGHTS WHICH YOU MAY HAVE AS A RESULT OF THE APPLICATION OF APPLICABLE LAWS IN THESE JURISDICTIONS SHALL NOT BE AFFECTED BY THIS DISCLAIMER OF LIABILITY.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 You agree and acknowledge that the Mercer Mobility Exchange, including, without limitation, the information contained in its database, its table structures, queries, and reports, their arrangement, organization, and methods of interactions, the algorithms and other database artifacts, the site’s structure, all textual and graphical materials, and all technical information and other content appearing on this site and their modifications and enhancements, are confidential and trade secret information that is proprietary to and owned solely by Mercer, together with all related copyrights and trademarks. Mercer retains the exclusive and sole ownership of the Mercer Mobility Exchange, and Mercer retains the exclusive and sole ownership of their information and data, and all related intellectual property rights. Other confidential and trade secret information of Mercer may be revealed to you in the future.
4.2 You agree to hold all such proprietary and confidential information of Mercer in strictest confidence. You may not modify, sell, transfer or otherwise provide any of the proprietary and confidential information, in whole or in part, in any form to any person or entity who is not a User, the Client or an employee of Mercer who needs access to the information to facilitate your licensed access and use of the Mercer Mobility Exchange without Mercer’s prior written permission.
4.3 You may not create derivative works of, or decompile, reverse engineer, translate or disassemble the Mercer Mobility Exchange, in whole or in part, except as expressly permitted by applicable law.
4.4 You may not create or store in electronic form any shared library, data warehouse, archive, cache or frame of the data or information contained in the Mercer Mobility Exchange.
4.5 Nothing contained herein shall be deemed to confer by implication, estoppel or otherwise, any license or any other grant of right to use any trademark, copyright, or any other intellectual property right of Mercer or any third party. The “Mercer” name and the names of Mercer’s products referred to on the Mercer Mobility Exchange site are Mercer’s trademarks. All other product and company names belong to their respective owners. You agree that you will take no action inconsistent with this paragraph 4.5.
4.6 Except as required herein, you agree not to use Mercer’s intellectual property in the press and not to refer to Mercer or attribute any information to Mercer in the press, for advertising or promotional purposes, or for the purpose of informing or influencing any other party without Mercer’s prior written consent.
4.7 You will be responsible for any access to, or use or disclosure of Mercer’s confidential and proprietary information by you and, further, shall indemnify and hold harmless Mercer for any and all loss, damage or liability incurred by Mercer as a result of a breach by you or any other party to whom you may have provided access to the Mercer Mobility Exchange of any or all of the obligations contained in this License.
4.8 You may (subject to paragraph 4.9 below) access, extract and re-utilize any reports you generate from the Mercer Mobility Exchange for internal research purposes only in the normal course of business which is limited to: (i) making one or more copies in hard copy form of the reports provided that such copies may not be sold and may not be distributed to anyone who is not a User; and (iii) extracting, paraphrasing or summarizing the reports on an occasional, non-systematic and infrequent basis for internal redistribution via derivative works and/or reference certain information contained in the Mercer Mobility Exchange.
4.9 User access, as set out above, is subject at all times to: (i) persons to whom insubstantial parts of the Mercer Mobility Exchange or references to the Mercer Mobility Exchange are made available, are made aware that such parts or references may not be redistributed or sub-licensed; and (ii) such parts or references to the Mercer Mobility Exchange are properly attributed to Mercer.
4.10 Except as expressly permitted by this License, you will not: copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit, in whole or in part, the Mercer Mobility Exchange, or set up derived databases or materials.
4.11 Mercer reserves the right to add to, remove from or edit the contents or change the form of the information provided within the Mercer Mobility Exchange at any time with or without notice.
4.12 Mercer reserves the right to monitor usage by you (in terms of volume, frequency or otherwise) of the Mercer Mobility Exchange during the term of this License. In case of unauthorized use of the Mercer Mobility Exchange by you, Mercer reserves the right to deny you access to the Mercer Mobility Exchange and associated services by blocking, without prior notification, the IP address(es) that you used to access the Mercer Mobility Exchange.
4.13 This License does not constitute a sale of the Mercer Mobility Exchange, or any part thereof and, except as expressly provided for in this Agreement, no rights or licenses, express or implied, are hereby granted to you in respect of the Mercer Mobility Exchange. You acknowledge that as between you and Mercer, Mercer (or its Suppliers) is throughout the world the owner of the Mercer Mobility Exchange. Nothing herein contained shall be construed so as to transfer any intellectual property rights whatsoever in the Mercer Mobility Exchange to you or the Client.
5. TECHNICAL SUPPORT
5.1 Throughout the term of the License, Mercer will provide you and where applicable the Client with reasonable technical support and training. Mercer reserves the right, with your prior written consent, to charge you an additional fee for this support. The level of technical support and/or training will be at Mercer’s sole discretion. Mercer will provide a help desk during normal business hours if you or the Client has any questions about how to access and use the Mercer Mobility Exchange.
5.2 You, or where necessary the Client, will be responsible for obtaining and maintaining all requisite computer systems, communication lines and equipment (the “Systems”) needed for access to and use of the Mercer Mobility Exchange and all charges related thereto. You, or where necessary the Client, acknowledge that the speed of the Mercer Mobility Exchange and the Services will depend upon the quality of your own Systems, connection to and extent of your use of the Internet.
6. USE OF THE INTERNET
You should be aware that the Internet is not a fully secure medium, and therefore confidentiality cannot be totally guaranteed. Mercer will not be liable for any harm or damage you, the Client or a third party may experience by sending privileged or confidential information to it over the Internet or by e-mail. The performance of the Internet may fluctuate and will be limited by the bandwidth of your connection to the Internet. Mercer makes no warranties or claims as to the performance of the Mercer Mobility Exchange system in your computer environment.
7. CONFIDENTIAL INFORMATION
7.1 You will keep confidential and will not share with any third party any password that is provided to you to access to the Mercer Mobility Exchange.
7.2 Mercer will regard and preserve as confidential the information that you input into the Mercer Mobility Exchange. Notwithstanding the foregoing, you hereby grant Mercer a perpetual, non-exclusive, royalty-free license to copy, modify and use any information and data supplied by you or on your behalf so that Mercer may create analytical trend data (in anonymous form) and in order to improve the quality of Mercer’s advice to its clients, including its use in Mercer’s surveys. Mercer will not disclose any information in a manner that allows particular clients or individuals to be identified. You request that the relevant personal data is appropriately anonymized. Notwithstanding the foregoing, you agree that your name may appear in a list of participating organizations for reports containing such analytical trend data.
7.3 You agree that Mercer may retain copies of the confidential information under a continuing duty of confidentiality for the purpose of complying with its legal and regulatory obligations and to defend its work product.
8. USE OF PERSONAL INFORMATION
Each of us and our respective Affiliates (as defined below) will comply with our respective obligations arising from data protection and privacy laws in effect from time to time to the extent applicable to this License and the access and use of the Services. This includes, without limitation, (i) the obligation, if any, of you or the Client’s Affiliates, to obtain any required consent(s) in respect of the transfer of information to Mercer by you, the Client or any third party relating to an identified or identifiable individual that is subject to applicable data protection, privacy or other similar laws (“Personal Information”), (ii) any obligation with respect to the creation or collection of additional Personal Information by Mercer, and (iii) any obligation with respect to the use, disclosure and transfer by Mercer of Personal Information as necessary with respect to access and use of the information on the Mercer Mobility Exchange or for Mercer to perform any services to you or the Client or as expressly permitted under this License. Subject to the section entitled “Your Confidential Information,” any use or processing by Mercer of Personal Information supplied by or on your behalf in connection with the Mercer Mobility Exchange shall be done solely on your behalf. Mercer shall handle such Personal Information in accordance with your reasonable instructions as may be provided from time to time or as reasonably necessary with respect to access and use of the information on the Mercer Mobility Exchange or for the purpose of providing any Services and shall not handle such Personal Information in a manner inconsistent with the terms of this License. Mercer also confirms that it has taken appropriate technical and organizational measures intended to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information. For purposes of this License, “Affiliates” means, with respect to either party, any entity directly or indirectly controlling, controlled by or under common control with such party.
9. EXPORT/IMPORT RESTRICTIONS AND TARIFFS
The Mercer Mobility Exchange is not available through Mercer to any Restricted Entity. “Restricted Entity” shall mean any individual, organization or other entity owned or controlled by, or acting as an agent for, any person or entity who is the subject of an asset freeze or otherwise designated under United Nations Security Council Resolutions, or the trade sanctions laws of the U.S. or the EU, or other governments of jurisdictions in which you or the Client is based or operated and from which the Mercer Mobility Exchange may be accessed. Neither you nor the Client shall provide access to or use of the Mercer Mobility Exchange to anyone for use in any country or used in any manner prohibited by United States or European Union trade sanctions or export control laws, including the Export Administration Act or laws administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Furthermore, you and the Client shall comply with any trade sanctions and export and import control laws of the countries and jurisdictions where you or the Client access and use the materials or receives copies of any technical information or other materials. Client agrees to indemnify, defend Mercer and hold Mercer harmless from any fines or other penalties arising from a violation of this Section 9. Client agrees to indemnify, defend Mercer and hold Mercer harmless from any tariffs, import or export taxes, levied with respect to its use of the Mercer Mobility Exchange by jurisdictions in which the Client uses it.
10. U.S. GOVERNMENT RESTRICTED RIGHTS
The Mercer Mobility Exchange and documentation are provided with Restricted and Limited Rights (as defined in DFAR). Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in DFAR Section 252.227-7013 or FAR Section 52.227-19, as applicable, and additional restrictions set forth in this License. Contractor/Manufacturer of the Mercer Mobility Exchange is Mercer (US) Inc., 400 West Market Street, Suite 700, Louisville, Kentucky 40202-3431.
11. UNFORESEEN EVENTS
Neither Mercer nor you can predict delays or failures in performance under the License resulting from events beyond their reasonable control. This, for example, includes 'acts of God,' fire, flood, riots, new laws which prevent the carrying out of any services, the results of terrorist activity, failures of third party suppliers, and electronic and other power failures. Should such circumstances arise, Mercer will use its reasonable endeavors to continue to provide access to the Mercer Mobility Exchange or any related services but recognizes that you or, where applicable, the Client, may not be able to wait while the matter is remedied. In such a case, either party may terminate the License with immediate effect by giving written notice to the other.
12.1 Each party hereby irrevocably agrees that this License and the Order and any controversy or claim of whatever nature arising out of or relating to them or breach thereof (save for any controversy or claim of whatever nature arising out of or relating to a breach of the payment terms (as set out in the Order)) shall be construed, interpreted and governed by the laws of the State of New York in the United States of America, without regard to the United Nations Convention on Contracts for the International Sale of Goods and any amendments thereto, the application of which is expressly excluded. The jurisdictional venue for any proceedings involving this Agreement and/or the Order shall be the exclusive jurisdiction of the United States Federal Courts for the Southern District of New York.
12.2 You acknowledge that Mercer will be irreparably harmed if your obligations under this License are not specifically enforced and that it would not have an adequate remedy at law in the event of an actual or threatened violation by you of your obligations. Therefore, you agree that Mercer will be entitled to an injunction or any appropriate decree of specific performance for any actual or threatened violations or breaches by you, or any of the Users, without the necessity of showing actual damages or that monetary damages would not afford an adequate remedy.
12.3 The English language version of this License shall prevail over any translation thereof into another language.
13. WAIVER OF TRIAL BY JURY
EACH PARTY, ON BEHALF OF ITSELF AND ITS AFFILIATES, TO THE FULLEST EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS LICENSE, THE ACCESS, USE AND INTERPRETATION OF THE INFORMATION ON THE MERCER MOBILITY EXCHANGE, OR ANY SERVICES PROVIDED BY MERCER OR ITS AFFILIATES. THE WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY AGREES NOT TO INCLUDE ANY EMPLOYEE, OFFICER, DIRECTOR OR TRUSTEE OF THE OTHER AS A PARTY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM RELATING TO SUCH DISPUTE.
14. ENTIRE AGREEMENT
THIS LICENSE AND THE ORDER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU, THE CLIENT AND MERCER WITH RESPECT TO THE SUBJECT MATTER THEREOF AND SUPERSEDE ANY AND ALL PRIOR PROPOSALS, UNDERSTANDINGS, REPRESENTATIONS AND/OR AGREEMENTS, WHETHER ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING THERETO. INVOICES, PURCHASE ORDERS, PURCHASE ORDER ACKNOWLEDGMENTS AND ANY TERMS AND CONDITIONS SET FOR THE ON SUCH DOCUMENTS OR ANY SIMILAR DOCUMENTS SHALL BE FOR THE ISSUING PARTY’S INTERNAL PURPOSES ONLY. THE PARTIES SPECIFICALLY REJECT ANY SUCH TERMS AND CONDITIONS. ANY ADDITIONAL TERMS INCLUDED IN SUCH DOCUMENTS SHALL NOT BE CONSIDERED TO BE VALID OR IN ANY WAY INCORPORATED UNDER THIS AGREEMENT EVEN IF SUCH DOCUMENTS ARE ACKNOWLEDGED OR ACCEPTED BY THE RECEIVING PARTY.
WITH RESPECT TO THE MERCER MOBILITY EXCHANGE, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN A PROVISION OF THIS LICENSE AND A PROVISION OF ANY OTHER AGREEMENT BETWEEN YOU AND MERCER, THE APPLICABLE PROVISION OF THIS LICENSE SHALL CONTROL.
15.1 ACCESS TO THE MERCER MOBILITY EXCHANGE IS LICENSED ONLY TO YOU (AND THE PERMITTED USERS). YOU MAY NOT RENT, LEASE, SUBLICENSE, SELL, ASSIGN, PLEDGE, TRANSFER OR OTHERWISE DISPOSE OF THE ACCESS TO THE MERCER MOBILITY EXCHANGE, OR ANY OF YOUR RIGHTS OR OBLIGATIONS UNDER THIS LICENSE, IN WHOLE OR IN PART, TO ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, YOUR EMPLOYEES WHO ARE NOT USERS, ON A TEMPORARY OR PERMANENT BASIS, WITHOUT MERCER’S PRIOR WRITTEN CONSENT. ANY PURPORTED ASSIGNMENT IN VIOLATION OF THIS PARAGRAPH WILL BE VOID AND CONSTITUTE A MATERIAL BREACH OF THIS LICENSE.
15.2 MERCER MAY RENT, LEASE, SUB-LICENSE, SELL, ASSIGN, PLEDGE, TRANSFER, CHARGE OR OTHERWISE DISPOSE OF THIS LICENSE TO ANY AFFILIATE OF MERCER, AND WILL PROVIDE YOU WITH WRITTEN NOTICE OF THE AFFILIATE TO WHICH THE LICENSE HAS BEEN DISPOSED.
15.3 THIS LICENSE IS BINDING UPON AND SHALL INURE TO THE BENEFIT OF ALL PARTIES AND THEIR RESPECTIVE SUCCESSORS, HEIRS, EXECUTOR, ADMINISTRATORS, PERSONAL REPRESENTATIVES AND PERMITTED ASSIGNS.
In order to provide the Services in the most efficient manner, Mercer may sub-contract appropriate parts of any services to a trusted third party or parties who may be located anywhere in the world. Notwithstanding paragraphs 7 and 8 of the License, in the event that the third party processes personal data, Mercer will ensure that such third party agrees in writing to act only on Mercer's instructions and provides appropriate guarantees in respect of the technical and organizational security measures governing the processing to be carried out. Mercer will take all reasonable steps to ensure compliance with those measures. Where such third party is located outside the European Economic Area, Mercer will take all necessary steps to ensure that the processing of any personal data by the third party, including its transfer to the third party, complies with all relevant data protection and privacy laws.
17.1 Severability. It is the intent of the parties that the provisions of this License shall be enforced to the fullest extent permitted by applicable law. To the extent that the terms set forth in this License or any word, phrase, clause or sentence is found to be illegal or unenforceable for any reason, such word, phrase, clause or sentence shall be modified deleted or interpreted in such a manner so as to afford the party for whose benefit it was intended the fullest benefit commensurate with making this License as modified, enforceable and the balance of this License shall not be affected thereby, the balance being construed as severable and independent.
17.2 Modification and Waiver. Mercer reserves the right to amend this License as necessary from time to time. Any other modification or waiver of the provisions of this License and the Order shall be effective only if made in writing and signed by both parties. The failure by a party to insist upon strict performance of any provisions of this License shall not be construed as a waiver of such party’s rights arising out of any subsequent default of the same or similar nature. Any use of pre-printed, standard or posted term forms, including without limitation purchase orders, shrink-wrap agreements, click-wrap agreements, acknowledgements or invoices provided by the Client or the User, are for administrative and convenience use only and any terms and conditions stated therein shall not have the ability, unless expressly agreed between the parties, to modify or override the terms contained in this License.
17.3 Consent to Disclose. You agree that Mercer is entitled to disclose information relating to this License or you to its regulators having jurisdiction over its business. You also agree that, notwithstanding any other provision in this License, Mercer may include the identities of those persons who are identified by you as contacts persons for you and information about the terms of this License in their internal client management, financial and conflict checking database.
17.4 Survival. The following provisions will survive any expiration, termination or rescission of this License: 2 to 4 and 12 to 17.
17.5 Third Party Beneficiaries. Neither this License nor access and use of the information on the Mercer Mobility Exchange or the provision of the Services is intended to confer any right or benefit on any third party.
17.6 Term and Termination. This License will continue for twelve (12) months from the date you first access the Mercer Mobility Exchange (the “Initial Term”). Thereafter, it shall renew automatically for additional twelve (12) month terms (a “Renewal Term”) unless a party notifies the other in writing at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term of its intent not to renew. This License shall automatically terminate upon the termination of Order between you and Mercer. In the event you terminate the Order for convenience prior to the end of the Term (as defined in the Order), you may be required to pay termination fees to the extent provided in such Order. Mercer may terminate the Order and this License immediately if you fail to comply with any term or condition of this License, or upon thirty (30) days written notice to you, at its sole discretion. You agree upon termination for any reason to return any materials associated with the Mercer Mobility Exchange in your possession together with all copies in any form.
17.7 Marketing. Any public statement, marketing material, press releases or the like that contain the whole or any part of the Services shall only be (a) disclosed with the prior written consent of Mercer; and (b) accompanied by an acknowledgement that any such data, information or figures are supplied by Mercer. Either party may use the other party’s name and logo in its publicity, provided that any reference to the other party beyond its name or logo will be subject to prior approval of the party whose name and logo is being used.
17.8 Notices. Any notice which is to be given by one party to the other under the License or the Order will be given in writing (other than email). It will be effective if delivered to the address of the other party set out in the Order or any other address specified subsequently. A notice will be effective 48 hours after delivery. Either party may change its address for service by giving notice to the other party in accordance with this paragraph 17.8.
Should you have questions regarding this License, you may contact Mercer by writing to Mercer (US) Inc., 400 West Market Street, Suite 700, Louisville, Kentucky 40202-3431, USA.