Case 1:19-cv-00859-RTH Document 50-3 Filed 04/23/21 Page 1 of 5
`Case 1:19—cv-00859—RTH Document 50-3 Filed 04/23/21 Page 1 of 5
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`EXHIBIT B
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`EXHIBIT B
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`Case 1:19-cv-00859-RTH Document 50-3 Filed 04/23/21 Page 2 of 5
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`General Terms and Conditions
`Revision Date: February 1, 2016
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`These General Terms and Conditions when incorporated by a Statement of Work, Scope, Schedule, Exhibit or Quote
`(“SOW”) shall govern the services to be provided (“Services”) and constitute the full agreement between the Customer
`and Merrill Communications LLC, a Delaware limited liability company located at One Merrill Circle, St. Paul, MN 55108,
`or its affiliate or subsidiary (collectively, “Merrill”) (each a “Party”) named in the SOW (“Agreement”). In the event of a
`conflict between the Terms and Conditions and any SOWs, the SOW shall govern. Merrill rejects the inclusion of any
`different or additional terms proposed by Customer, unless expressly agreed to in writing.
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`1. Pricing; Payment Terms; Taxes.
`(a) Fees. Customer shall pay to Merrill the fees (the “Fees”) set forth in any SOW. If the Customer is represented by
`an advisor in furtherance of the project described in the SOW, Customer shall pay all costs incurred by such advisor for
`the performance of the Services.
`(b) Payment. Customer shall pay all Fees owing under this Agreement and any SOW within 30 days of receipt of an
`invoice from Merrill. Interest may be added to all past due invoices in accordance with local laws. Customer may be
`subject to reasonable administrative charges resulting from third-party billing or invoicing systems implemented by
`Customer.
`(c) Change Orders. If the scope of the Services changes, the parties shall agree to update the SOW, in writing,
`based upon revised Services, deadlines, Fees, or other matters.
`(d) Taxes. Amounts payable by Customer under this Agreement are exclusive of all applicable taxes. If applicable
`law requires Customer to withhold amounts on payments owed to Merrill pursuant to this Agreement, Customer shall (i)
`effect such withholding and remit such amounts to the appropriate taxing authorities, and (ii) ensure that, after such
`deduction or withholding, Merrill receives and retains, free from liability for such deduction or withholding, a net amount
`equal to the amount Merrill would have received and retained in the absence of such required deduction or withholding.
`
`2. Term and Termination.
`(a) Term. The term of this Agreement (“Term”) begins on the Effective Date identified in the SOW and continues in
`effect until terminated as permitted hereunder or for the period identified in the SOW.
`(b) Termination for Convenience. This Agreement may be terminated by either party with 90 days’ written notice.
`(c) Termination for Cause. This Agreement and any underlying SOW may be terminated for cause upon written
`notice by either party of the other party’s material breach of this Agreement (failure to pay any Fees due is a material
`breach) and continuance of such breach without cure for a period of thirty (30) days.
`(d) Effect of Termination. Upon termination or expiration of this Agreement, Customer shall (i) promptly discontinue
`using all Services and Merrill IP (as defined below) and (ii) within 30 days of receipt of invoice, pay all Fees for Services
`performed up to the date of termination and all fees and expenses associated with transferring Services to another
`provider designated by Customer.
`
`3. Ownership.
`(a) Customer Ownership. Customer owns all original data, 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
`SOW (the “Content,” which, together with the Customer’s trademarks or logos, is referred to as the “Customer Material).”
`(b) Merrill Ownership. All materials, methodologies, websites and software that Merrill uses in providing the Services,
`and any intellectual property rights therein, are solely owned by Merrill (“Merrill IP”).
`
`4. Customer Requirements.
`(a) License to Customer Material. Customer grants to Merrill a license to the Customer Material only to the extent
`necessary for Merrill to provide the Services for Customer.
`(b) Content. Customer will (i) use reasonable efforts to provide Merrill with clear and legible copies of the Content in
`the best possible condition; (ii) cooperate with Merrill in correcting any problems associated with Content; (iii) either retain
`a complete set of documents delivered to Merrill or hold Merrill harmless for any loss or damage incurred to documents
`during shipment, storage or use, unless such loss or damage occurred as a result of Merrill’s negligence or willful
`misconduct; (iv) report promptly to Merrill any problems or errors that Customer observes or discovers with the Content;
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`Case 1:19-cv-00859-RTH Document 50-3 Filed 04/23/21 Page 3 of 5
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`and (v) notify Merrill, in writing, of all court orders restricting the use, distribution or disposition of the Content delivered to
`Merrill.
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`5. Representations and Warranties.
`(a) General Representations. Each party represents and warrants that (i) it has full power and authority to enter into
`and perform its obligations under this Agreement; (ii) it will comply with all applicable laws; and (iii) it will use up-to-date,
`generally accepted virus detection devices and procedures to ensure that any electronic data transmitted will not contain a
`virus or other harmful component.
`(b) Merrill Representations. Merrill represents and warrants that (i) all of the Services will be rendered using sound,
`professional practices and in a competent and professional manner; and (ii) it has obtained all necessary permissions,
`software licenses and authority for the Merrill IP.
`(c) Customer Representations. Customer represents and warrants that (i) it has obtained all permissions necessary
`to provide the Content in connection with the Services; and (ii) it has delegated authority to its advisors in providing
`instructions in connection with the Services, and Merrill has no duty to verify such instructions with Customer.
`(d) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE
`PROVIDED AS-IS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY
`WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MERCHANTABILITY.
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`6. Confidentiality.
`(a) “Confidential Information” means proprietary information of a party, including but not limited to the Content, the
`existence of this Agreement, inventions, copyright, trade secrets, marketing plans, programs, source code, data and other
`documentation, customer and shareholder information, and other information related to the business of that party. The
`term Confidential Information does not include: (i) information that was in the receiving party’s possession or was known
`to it prior to its receipt from the disclosing party; (ii) information that is or becomes publically available without the fault of
`the receiving party; (iii) information that is or becomes rightfully available on an unrestricted basis to the receiving party
`from a source other than the disclosing party; or (iv) information that was independently developed by the receiving party.
`(b) Each party acknowledges that the other party owns or possesses valuable Confidential Information. Each party
`shall hold such Confidential Information of the other party in strict confidence and will not make any disclosures without
`the written consent of the disclosing party, except as needed in furtherance of the Services, and will take all reasonable
`steps to maintain the confidentiality of all Confidential Information. Upon termination of the Agreement, all copies of any
`Confidential Information of one party in the possession of the other party shall be destroyed or returned to the disclosing
`party. Notwithstanding the provisions of this Section 5(b), neither party is obligated to immediately erase Confidential
`Information contained in an archived computer system backup made in accordance with such party’s security or disaster
`recovery procedures, provided that such archived copy will remain fully subject to these obligations of confidentiality until
`such destruction or erasure.
`(c) If a party is compelled by court order, subpoena, or other requirement of law to disclose Confidential Information,
`the party will provide the other party with prompt notice (unless such notice is prohibited by law) so that the party may, at
`its option and expense, seek a protective order or other remedy.
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`7. Limitation of Liability. NEITHER MERRILL NOR CUSTOMER SHALL BE LIABLE TO THE OTHER PARTY OR
`ANY OTHER THIRD PARTY 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 INCLUDING: DAMAGE TO OR LOSS OF
`PROPERTY OR EQUIPMENT; LOSS OF REVENUE; LOSS OF CUSTOMER’S DATA; OR LOSS OF USE OF
`CUSTOMER’S MATERIAL, EQUIPMENT OR SYSTEMS. CUSTOMER EXPRESSLY AGREES THAT UNLESS
`OTHERWISE STATED HEREIN, THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND THAT
`UNDER NO CIRCUMSTANCES SHALL THE TOTAL AGGREGATE LIABILITY OF MERRILL UNDER ANY THEORY OF
`RECOVERY, WHETHER BASED IN CONTRACT, IN TORT, UNDER WARRANTY, OR OTHERWISE, EXCEED THE
`TOTAL PRICE PAID OR PAYABLE TO MERRILL UNDER THE APPLICABLE SOW FOR THE 12-MONTH PERIOD
`IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. FOR BREACHES OF CONFIDENTIALITY,
`A PARTY’S LIABILITY SHALL NOT EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000). THE PROVISIONS
`OF THIS PARAGRAPH SHALL NOT APPLY TO A PARTY’S BREACH OF THE OWNERSHIP PROVISIONS
`CONTAINED IN THIS AGREEMENT NOR TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
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`8. Hosting Terms. The following provisions apply to the extent that the Services include hosting Customer’s Content on
`an Internet-based platform (the “Website”):
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`(a) Website Users.
`(i) Definitions. The Website users (“Users” or “Reviewers”) are those individuals authorized by Customer in
`writing, and enabled by Merrill or Customer, to access the Content on the Website. “Managers” are those Reviewers
`who are authorized by Customer to upload and manage Content, invite other Managers and Reviewers and access
`reports.
`(ii) Number. Customer agrees that it will not exceed the number of Users allowed by the SOW, provided that if
`no such number is specified, the number of Users will be unlimited.
`(iii) Obligations. Users must agree to the Terms of Use and the Merrill Privacy Policy included in the Website.
`(b) Service Level Agreements.
`(i) Scheduled Maintenance. Merrill performs periodic maintenance on the Website for system upgrades,
`maintenance, and backup procedures (“Scheduled Maintenance”). Advance notice is provided on the Website’s log-in
`screen. Scheduled Maintenance is limited to the period of 10:00 p.m. Saturdays to 5:00 a.m. Sundays (all such times
`being United States Central Standard Time) and will not exceed four (4) hours per calendar month.
`(ii) Availability Guarantee. Aside from Scheduled Maintenance, Merrill guarantees that the Website will be
`Available at least 99.5% of the time, measured on a twelve (12) month basis beginning on the Effective Date of this
`Agreement, and at least 98.5% of the time measured on a calendar month basis (collectively, the “Availability
`Guarantee”).
`(iii) Service Credits. If Merrill fails to meet the Availability Guarantee during the Term, Customer may (x) terminate
`this Agreement in accordance with Section 2(c); or (y) require Merrill to deliver, as soon as commercially practicable,
`DVDs of the Content on the Website to those Reviewers that Customer designates, if Customer makes such request
`within five (5) days of Merrill’s failure to meet the Availability Guarantee; or (z) request that Merrill provide Customer
`the credits described in the table below, provided Customer makes such request within twenty (20) days after Merrill’s
`failure to meet the Availability Guarantee.
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`Actual Percentage the Website is Available
`98.5% or more
`97% to less than 98.5%
`96% to less than 97%
`95% to less than 96%
`Less than 95%
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`Credit
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`None
`10% of Monthly Fees
`25% of Monthly Fees
`50% of Monthly Fees
`100% of Monthly Fees
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`(c) Customer Acknowledgment. Customer acknowledges that the Internet is an open system and Merrill cannot
`guarantee that third parties will not unlawfully access Merrill’s proprietary websites. Merrill will not be liable for a breach of
`this Agreement, if a third party gains access to Merrill’s proprietary websites or databases, as long as Merrill uses
`reasonable measures compared to best practices to protect its proprietary websites and databases and is otherwise
`complying with its obligations.
`(d) Restricted Parties. As used herein, “Restricted Parties” refers to individuals or entities listed on the Specially
`Designated Nationals List, located at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or
`the Denied Persons list, located at http://www.bis.doc.gov/dpl/default.shtm. Customer represents and warrants that
`neither it, nor any of its officers or employees are Restricted Parties. Customer will not knowingly designate any Restricted
`Party as a User or knowingly allow access to the Website to a Restricted Party. In the event that a Restricted Party is
`allowed access to the Website, Merrill may terminate such Restricted Party’s access to the Website.
`(e) Termination. The following will occur upon termination or expiration of a SOW or this Agreement:
`(i) Merrill will terminate Customer’s and all Users’ access to the Website(s).
`(ii) After payment in full of all invoices due and owing to Merrill for Services performed up to and including the
`date of termination, if applicable, the Content and all materials created by Merrill based on Content will be returned to
`Customer on DVD or USB drive; if within sixty (60) days of termination or expiration of the SOW invoices are not paid
`in full or are not reasonably disputed in writing, Merrill will have no obligation to preserve or return the Content.
`(iii) Merrill will permanently delete all Content and all “cached” files maintained by Merrill on its hosting system.
`Upon termination or expiration of the SOW, Merrill’s obligations to host Content on the Website will cease.
`(iv) All remaining copies of any Confidential Information of one party then in the possession of the other party
`shall, at the direction of such party, be destroyed or returned to the disclosing party.
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`9. General.
`(a) Governing Law. This Agreement will be construed and enforced in accordance with the laws of the State of
`Minnesota.
`(b) Assignment. This Agreement is binding upon and for the benefit of the parties and their respective successors
`and assigns. It is agreed and understood that without obtaining prior written consent (i) Merrill may assign its rights,
`interests and obligations in this Agreement or any SOW pertaining thereto to any parent, subsidiary or affiliate of Merrill, or
`to a successor of substantially all of Merrill’s assets or stock, and (ii) Customer may assign its rights, interests and
`obligations in this Agreement to any parent, subsidiary or affiliate of Customer.
`(c) Independent Contractors. Customer and Merrill are acting hereunder as independent contractors. Merrill shall not
`be considered or deemed to be an agent, employee, joint venture or partner of Customer. Merrill’s personnel shall not be
`considered employees of Customer, shall not be entitled to any benefits that Customer grants its employees and have no
`authority to act or purport to act on Customer’s behalf. Neither Customer nor Merrill has the right, and shall not seek, to
`exercise any control over the other Party. Each Party shall be solely responsible for hiring, firing, promoting, demoting,
`rates of pay, paying, taxes, benefits and other terms and conditions in regard to its own personnel.
`(d) Notices. Wherever provision is made in this Agreement for the giving, service or delivery of any notice, such
`notice shall be in writing and shall be given using a method providing for proof of delivery.
`(e) Force Majeure. In the event that a delay or failure of a party to comply with any obligation set forth in this
`Agreement is caused by Force Majeure, that obligation (other than the obligation to pay money when due and owing) will
`be suspended during the continuance of the Force Majeure condition. A party whose performance is suspended
`hereunder shall give prompt written notice of any event of Force Majeure and such party’s best reasonable estimate of
`when such event will abate.
`(f) No Accounting or Legal Services. Customer acknowledges and agrees that the Services are principally
`information management services and that none of the Services constitute or are intended to constitute the rendering of
`professional accounting or legal advice services.
`(f) Entire Agreement. This Agreement, together with any applicable SOWs, constitutes the entire agreement
`between the parties and supersedes all previous agreements, promises, proposals, representations, understanding and
`negotiations, whether written or oral, between the parties regarding the subject matter herein.
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