Merit Solutions Customer Agreement

The Merit Solutions Customer Agreement (the “Agreement”) is between the Customer and Merit Solutions and consists of these General Terms, the applicable Product Terms and Service Level Agreements (SLAs), as amended from time to time, which govern Customer’s use of the Merit Solutions “Products”. The Product is provided as Online Services subscriptions deployed within The Microsoft cloud. The Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.

General Terms

These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”

Software License

a. License grant. Products are licensed and not sold. Subject to Customer’s compliance with this Agreement, Merit grants Customer a nonexclusive and limited license to use the Product(s) ordered as provided in this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

b. Duration of licenses. Online Services are licensed on a subscription basis for a specific period of time. Subscriptions expire at the end of the applicable subscription period unless renewed. Subscriptions renew automatically until cancelled.

c. End Users. Customer will control access to, and use of, the Product(s) by End Users and is responsible for any use of the Products that do not comply with this agreement.

d. Affiliates. Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Merit. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.

e. Reservation of Rights. Merit reserves all rights not expressly granted in this Agreement. Products and Services Deliverables are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device does not give Customer any right to implement Merit patents or other intellectual property in the device itself or in any other software or devices.

f. Restrictions. Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):

    1. reverse engineer, decompile, or disassemble any Product or Services Deliverable, or attempt to do so except where applicable law permits despite this limitation;
    2. install or use non-Merit software or technology in any way that would subject Merit’s intellectual property or technology to any other license terms;
    3. work around any technical limitations in a Product or Services Deliverable or restrictions in Product documentation;
    4. separate and run parts of a Product or Services Deliverable on more than one device;
    5. upgrade or downgrade parts of a Product at different times
    6. transfer parts of a Product separately; or
    7. distribute, sublicense, rent, lease, or lend any Products or Services Deliverables, in whole or in part, or use them to offer hosting services to a third party

Non-Merit Products

Non-Merit Products are provided under separate terms by the Publishers of such products. Merit is not a party to the terms between Customer and the Publisher. Merit may provide Customer’s contact information and transaction details to the Publisher. Merit makes no warranties and assumes no responsibility or liability whatsoever for Non-Merit Products. Customer is solely responsible and liable for its use of any Non-Merit Product.

Verifying license compliance

a. Verification process. Customer must keep records relating to Products it and its Affiliates use or distribute. Customer will provide Merit a report of all active Merit Product users on a quarterly basis. If a discrepancy is found, Customer will pay for unlicensed users, and order sufficient licenses to cover all users. At Merit’s expense, Merit may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. Merit may engage an independent auditor under nondisclosure obligations to perform the verification. Customer must promptly provide any information and documents that Merit or the auditor reasonably requests related to the verification and visual access to systems running the Products. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.

b. Remedies for non-compliance. If verification reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Merit’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Merit for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less.

Data Protection and Processing

Merit and its Affiliates, and their respective agents and subcontractors, will process Customer Data, Personal Data, and Professional Services Data as provided in this Agreement and in alignment with the Microsoft Data Privacy Agreement (DPA), see link to DPA in Definitions. Before providing Personal Data to Merit, Customer will obtain all required consents from third parties (including Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.


a. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Professional Services Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services

b. Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

c. Required disclosure. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

d. Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.

e. Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted from Merit Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.


a. Limited warranties and remedies. To the extent permitted by applicable law, the remedies below are Customer’s sole remedies for breach of the warranties provided in this section, and Customer waives any warranty claims not made during the applicable warranty period.

b. Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement or applicable documentation, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.

c. Disclaimer. Except for the limited warranties above or as required by applicable law, Merit provides no other warranties or conditions and disclaims any other express, implied, or statutory warranties and conditions, including warranties and conditions of quality, title, non-infringement, merchantability, and fitness for a particular purpose. Professional Services that are provided without charge are provided “AS IS,” WITHOUT ANY WARRANTY OR CONDITION.

Defense of third-party claims

The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.

a. By Merit. Merit will defend Customer against any third-party claim to the extent it alleges that a Product or Services Deliverable made available by Merit for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Merit and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Merit is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product or Services Deliverable with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Merit will not be liable for any claims or damages due to Customer’s continued use of a Product or Services Deliverable after being notified to stop due to a third-party claim.

b. By Customer. To the extent permitted by applicable law, Customer will defend Merit and its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Merit Product hosted in an Online Service by Merit on Customer’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product or Services Deliverable, alone or in combination with anything else, violates the law or harms a third party.

Product warranties.

Limited Warranty and Disclaimer. Merit Solutions warrants that (a) the Software will perform substantially in accordance with its documentation for a period of 120 days from the last date indicated beneath the signatures below, provided that it is used with the specified hardware and operating system and (b) the Software does not infringe any third-party intellectual property right. THERE IS NO WARRANTY OF ANY KIND FOR FUNCTIONAL DEFECTS DISCOVERED AFTER THE 120-DAY PERIOD. This limited warranty is the only express warranty made for the Software and to the maximum extent permitted by law, Merit Solutions DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND PROVIDES THE SOFTWARE AS IS. Merit Solutions does not warrant that the functions contained in the Software will meet Customer’s requirements or that the operation of the Software will be uninterrupted. The limited warranty shall be null and void if Customer or any third party modifies the Software without Merit Solutions prior written authorization. Customer acknowledges that Merit Solutions is not required to maintain compatibility between the Software and other software not specified in this Agreement. Customer has not relied on any statements other than this limited warranty whether made by Merit Solutions, its resellers or any other third party.


Indemnification. Merit Solutions shall indemnify and hold Customer harmless from and against any claim, suit or proceeding brought against Customer alleging that the Software, as delivered and used in accordance with the terms of this Agreement, infringes any third party intellectual property right, provided that Customer gives Merit Solutions prompt written notice of such claim, suit or proceeding, tenders the defense to Merit Solutions, and fully cooperates in defending or otherwise disposing of the claim, suit or proceeding. Merit Solutions shall in its discretion, defend, settle or otherwise dispose of such claim, suit or proceeding as it sees fit. Customer may participate with Merit Solutions in Customer’s own defense in such claim, suit or proceeding, at Customer’s option and at Customer’s sole expense. If Customer is enjoined from using the Software, Merit Solutions shall, at its option and expense, either (1) obtain for Customer the right to continue to use the Software; (2) repair or replace the Software; or (3) terminate this Agreement and refund the price paid by Customer for the Software.

Limitation of liability.



a. Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Merit. Partners and other third parties are not agents of Merit and are not authorized to enter into any agreement with Customer on behalf of Merit.

b. Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner, Customer may choose to provide that Partner with administrator privileges. Customer consents to Merit and its Affiliates providing that Partner with Customer Data and Administrator Data for purposes of provisioning, administering, and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Merit’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Merit. Customer may terminate the Partner’s administrative privileges at any time.

c. Product Support. Partners may provide support for Products and other value-added services, and Partner is responsible for the performance of any services it provides. If Customer purchases Merit Support Services through a Partner, Merit will be responsible for the performance of those services subject to the terms of this Agreement.

Pricing and payment

If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner. Pricing and payment terms related to orders placed by Customer directly with Merit are set by Merit, and Customer will pay the amount due as described in this section.

a. Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Merit with a payment method, Customer (1) consents to Merit’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Merit to charge Customer using that payment method for orders under this Agreement.

b. Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Merit for the period corresponding to the invoice. Customer will pay all amounts due within fifteen (15) calendar days following the invoice date.

c. Late Payment. Merit may, at its option, assess a late fee on any payments to Merit that are more than five (5) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.

d. Cancellation fee. If Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.

e. Recurring Payments. For subscriptions that renew automatically, Customer authorizes Merit to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Merit to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Merit or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.

f. Taxes. Merit prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Merit, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Merit is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Merit shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.

If any taxes are required to be withheld on payments invoiced by Merit, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Merit an official receipt for those withholdings and other documents reasonably requested to allow Merit to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.

Term and termination.

a. Term. This Agreement is effective until terminated by a party, as described below.

b. Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.

c. Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:

(1) All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.

(2) All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

(3) If Merit is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

d. Termination for regulatory reasons. Merit may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Merit to continue offering the Product without modification; or (3) causes Merit to believe these terms or the Product may conflict with any such regulation, obligation, or requirement.

If Merit terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.


a. Independent contractors. The parties are independent contractors. Customer and Merit each may develop products independently without using the other’s Confidential Information.

b. Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.

c. Amendments. Merit may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Merit may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

d. Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Merit may have under this Agreement to receive payment and enforce Customer’s payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

e. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

f. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

g. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

h. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

i. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Merit must be sent to the following address:

Merit Solutions, Inc

1749 S Naperville Road, Suite 200

Wheaton, IL 60189


Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Merit may send notices and other information to Customer by email or other electronic form.

j. Governing Law and Venue. This Agreement shall be construed and governed under the substantive laws of the State of Illinois, without effect of conflict of law provisions. Except for Merit’s right to suspend Client’s access to the Software, and the right of either party to seek injunctive relief to preserve the status quo or prevent irreparable harm, any other controversy or claim arising out of or relating to this Agreement that cannot be amicably resolved by the parties within 30 days of written notice shall be submitted to binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect before a single arbitrator in DuPage County, Illinois.

The arbitration shall be heard and decided no later than 3 months after the notice of arbitration is filed with the American Arbitration Association. The arbitrator shall hear and determine any preliminary issue of law asserted by a party to be dispositive of any claim, in whole or in part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrators deem appropriate. No witness or party may be required to waive any privilege recognized under Illinois law. The hearing shall not last longer than two days unless all parties agree otherwise, with time to be divided equally between Customer and Merit.

For good cause shown, the arbitrator may permit each side to serve no more than 15 document requests (including subparts) and ten (10) interrogatories (including subparts) on the opposing parties. For good cause shown, the arbitrator may permit each side to subpoena no more than 2 third party witnesses for testimonial depositions if the witnesses cannot be compelled to attend the arbitration and no more than 2 current employees of each opposing party for testimonial depositions if the witnesses cannot be compelled to attend the arbitration. All discovery is otherwise governed by the Federal Rules of Civil Procedure and the precedents applicable to cases brought in the United States District Court for the Northern District of Illinois, Eastern Division. No other discovery shall be permitted except by written agreement of all parties. The parties and the arbitrator shall treat all aspects of the arbitration proceedings, including, without limitation, discovery, testimony and other evidence, briefs, and the award, as strictly confidential and not subject to disclosure to any third party or entity, other than to the parties, the arbitrator, and the American Arbitration Association. The arbitrator must give full effect to the applicable law and to all terms of this Agreement and are specifically divested of any power to render decisions in derogation thereof.

The arbitrator shall issue written findings of fact and conclusions of law, the arbitrator’s decision will be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrators may be entered in the highest court of any forum, federal or state, having jurisdiction. You agree to reimburse Merit for all expenses it incurs in enforcing this Agreement.

Merit Affiliates and contractors. Merit may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Merit remains responsible for their performance.

Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.


“Administrator Data” means the information provided to Merit or its Affiliates during sign-up, purchase, or administration of Products.

“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.

“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Confidential Information” is defined in the “Confidentiality” section.

“Customer” means the entity identified as such on the account associated with this Agreement.

“Customer Data” means all data, including all text, sound, video or image files, and software, that are provided to Merit or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.

“DPA” means the Microsoft Products and Services Data Protection Addendum, as updated from time to time, published at or a successor site and any additional data protection terms that Microsoft presents in the Microsoft Customer Agreement.

“End User” means any person Customer permits to use a Product or access Customer Data.

“Fix” or “Fixes” means Product fixes, modifications or enhancements, or their derivatives, that Merit either releases generally (such as Product service packs) or provides to Customer to address a specific issue.

“Material Adverse Change” means any change to the Use Rights for a Product that could reasonably affect Customer’s decision to purchase the Product and that would require Customer to purchase additional licenses, increase the cost to Customer of using the Product, remove an existing right, or place additional restrictions on the use of the Product.

“Merit” means Merit Solutions, Inc.

“Merit Support Services” means Product support services that Merit offers to customers and partners.

“Non-Merit Product” means any third party-branded software, data, service, website, or product, unless incorporated by Merit in a Product.

“Online Services” means Merit or Microsoft hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.

“Partner” means a company Merit has authorized to distribute Products to Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Pre-Existing Work” means any computer code or other written materials developed or otherwise obtained independent of this Agreement.

“Product” means all Software that Merit offers under this Agreement including previews, prerelease versions, updates, patches, and Fixes from Merit. Product availability may vary by region. “Product” does not include Non-Merit Products.

“Professional Services” means Merit Support Services and consulting services provided by Merit to Customer. “Professional Services” do not include Online Services.

“Publisher” means a provider of a Non-Merit Product.

“Representatives” means a party’s employees, Affiliates, contractors, advisors, and consultants.

“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.

“Software” means licensed copies of Merit software. Software does not include Online Services, but Software may be part of an Online Service.

“Subscription” means a license for Customer to use or access a Product during a defined period of time.

“Use” means to copy, download, install, run, access, display, or otherwise interact with.

“Use Rights” means the following as applicable to each Product offering: Use Rights, License Model terms, General Service Terms, Service Specific Terms, Add-ons, Universal License Terms, and Other Legal Terms.