Mercer Reports

Customer’s use of the compensation surveys and publications (collectively, “Mercer Reports”) published by Mercer (US) Inc. (“Mercer”) and licensed to Customer by PayScale in accordance with this Agreement is subject to the following terms and conditions, which were last updated on January 18, 2019.

  1. Provision of Mercer Reports.  If Customer purchases the right to access and use certain Mercer Reports bundled with a Cloud Offering, then: (a) PayScale will make the Mercer Reports available through such Cloud Offering during the Subscription Term of such Cloud Offering; (b) a copy of the Mercer Reports may also be made available by Mercer in flat file format or other electronic format through a site operated by Mercer; and (c) for purposes of this Agreement, Mercer Reports will be considered “PayScale Data” and not “Customer Data,” and all provisions set out in this Agreement regarding PayScale Data will also apply to Mercer Reports, except that a Mercer Report will be considered a compensation survey that is counted towards Customer’s Cloud Offering Subscription Scope (defined in the Product Use Terms for Insight Lab or MarketPay) (unless otherwise agreed by the parties in the Order Form or in writing).  The Mercer Reports licensed by Customer is set out in the applicable Order Form.  
  2. Training.  Customer is solely responsible for the training of its personnel in the use of, and applications of, the Mercer Reports unless otherwise agreed upon in writing by the parties.
  3. Participation in Mercer Reports.  In consideration of the discounted rate applied to the MercerReports, Customer agrees to submit data to the Mercer Report it purchases in accordance with the survey submission requirements of the survey.  Customer understands and agrees that if it does not submit data for the Mercer Reports, it will be invoiced for, and agrees to pay, the difference between the "Non-Participant Rate" amount for the Mercer Reports and the discounted “Participant Rate” shown on Mercer’s current product page on imercer.com (or any successor site). Customer represents and warrants that the information Customer supplies (or which is supplied to Mercer on Customer’s behalf) is accurate and complete.  As a standard part of Mercer’s survey processing, Mercer reviews the data submitted by Customer for completeness and obvious errors. Customer agrees to work with Mercer on a timely basis to answer any questions that arise from its review and to correct any identified problems, omissions, or errors.  Despite Mercer’s review, Customer acknowledges that it remains accountable for the accuracy of its data.  Problems with information quality or delays in providing such information may delay the Mercer Reports’ delivery date or result in an increase in fees for the Mercer Reports.
  4. Disclaimer of Warranties 
    1. MERCER AND PAYSCALE MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE MERCER REPORTS OR ANY PART THEREOF, AND DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND TO CUSTOMER OR ANY THIRD PARTY, INCLUDING, REPRESENTATIONS AND WARRANTIES REGARDING ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR FREEDOM FROM COMPUTER VIRUS. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE MERCER REPORTS.
    2. CUSTOMER ACCEPTS THE MERCER REPORTS ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ACKNOWLEDGES THAT THE MERCER REPORTS ARE FOR GENERAL INFORMATION AND USE ONLY. IN PARTICULAR, THE MERCER REPORTS DO NOT CONSTITUTE ANY FORM OF ADVICE, RECOMMENDATION, REPRESENTATION, OR ARRANGEMENT BY MERCER AND PAYSCALE. MERCER AND PAYSCALE DO NOT WARRANT THAT THE ACCESS OR USE OF THE MERCER REPORTS IN ANY SPECIFIC SITUATION OR FOR ANY SPECIFIC APPLICATION, NOR DO MERCER AND PAYSCALE WARRANT THAT THE MERCER REPORTS ACCESSIBLE THROUGH A CLOUD OFFERING WILL BE ACCESSIBLE AT ALL TIMES OR THAT IT WILL BE ERROR FREE.
    3. MERCER AND PAYSCALE MAKE NO WARRANTIES OF ANY KIND AS TO THE ACCURACY OF THE MERCER REPORTS OR ASSUMPTIONS CONTAINED IN OR ENTERED INTO THE MERCER REPORTS, NOR DOES IT ASSUME ANY RESPONSIBILITY FOR THE CONSEQUENCES OF ANY ERRORS OR OMISSIONS. CUSTOMER ASSUMES THE ENTIRE LIABILITY AND RESPONSIBILITY FOR THE REPORTS AND ASSUMPTIONS ENTERED BY USERS INTO ANY PARTS OF THE MERCER REPORTS THAT HAVE THE FUNCTIONALITY TO RECEIVE CUSTOMER REPORTS AND FOR ANY REPRESENTATIONS OR CONCLUSIONS DRAWN FROM SUCH REPORTS OR ASSUMPTIONS.
    4. CUSTOMER ALSO ACKNOWLEDGES THAT MERCER AND PAYSCALE PROVIDE THE MERCER REPORTS, INFORMATION, AND DATA TO ITS CLIENTS TO PERMIT THEM TO MAKE INDEPENDENT DECISIONS REGARDING SALARIES AND BENEFITS. BECAUSE THE EXCHANGE OF SALARY AND BENEFIT INFORMATION AMONG COMPETITORS MAY BE CONSTRUED IN CERTAIN CIRCUMSTANCES AS A MEANS TO FACILITATE AN ANTITRUST VIOLATION OR VIOLATION OF RELEVANT COMPETITION LAWS, MERCER HAS TAKEN APPROPRIATE STEPS IN COLLECTING AND DISSEMINATING THIS INFORMATION IN ORDER TO AVOID SUCH PERCEPTIONS.
    5. MERCER AND PAYSCALE ASSUME NO RESPONSIBILITY FOR THE EFFECTIVENESS OF ANY ENCRYPTED DATA, NOR WILL IT GUARANTEE THAT AN ENCRYPTION ALGORITHM WILL BE INDECIPHERABLE. MERCER AND PAYSCALE MAKE NO CLAIMS OR WARRANTIES REGARDING THE VIABILITY, INTEGRITY OR INVINCIBILITY OF THE ENCRYPTION USED, NOR WILL MERCER AND PAYSCALE ACCEPT RESPONSIBILITY FOR THE SUCCESS OR FAILURE OF THE SECURE SERVER TO PROPERLY ENCRYPT DATA. BY ACCESSING THE MERCER REPORTS, CUSTOMER ASSUMES ANY RISKS THAT THE ENCRYPTION MAY BE DECIPHERABLE.
  5. Limitation of Liability
    1. EXCEPT IN RESPECT OF THE INDEMNITY FOR INFRINGEMENT CLAIMS AS SET FORTH IN SECTION 10.1(A) OF THE MASTER SUBSCRIPTION AGREEMENT, THE LIMIT OF MERCER’S LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS CONCERNING PERFORMANCE OR NON-PERFORMANCE BY MERCER OR ITS AGENTS RELATED TO MERCER’S OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT, IN THE AGGREGATE, EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER FOR ACCESS TO AND USE OF THE MERCER REPORTS (AS SPECIFIED IN THE ORDER FORM) FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM OR CLAIMS ARISE, OR US$500.00 (U.S. FIVE HUNDRED DOLLARS).
    2. IN NO EVENT SHALL MERCER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES, INCLUDING: 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 AGREEMENT, THE ACCESS, USE OR INTERPRETATION OF THE MERCER REPORTS 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 SECTION 5.2 APPLIES EVEN IF MERCER, OR REPRESENTATIVES THEREOF, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES.
    3. THE LIMITATIONS SET OUT IN SECTIONS 5.1 AND 5.2 ABOVE DO NOT APPLY TO: (A) AMOUNTS INCURRED BY A PARTY ACTING AS INDEMNITOR UNDER THIS AGREEMENT; (B) CUSTOMER’S OBLIGATION TO PAY AMOUNTS DUE UNDER THIS AGREEMENT; (C) CUSTOMER’S USE OF THE MERCER REPORTS IN VIOLATION OF SECTION 2 OF THE MASTER SUBSCRIPTION AGREEMENT; OR (D) ACTUAL AND PROVEN DAMAGES ARISING FROM THE OTHER PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE (WHICH, FOR PURPOSES OF THIS AGREEMENT, IS DEFINED AS A PARTY’S INTENTIONAL BREACH OF ITS MATERIAL OBLIGATION UNDER THIS AGREEMENT).
    4. WITHOUT LIMITATION TO THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE MERCER REPORTS AND THE ASSUMPTIONS, INFORMATION, AND DATA CONTAINED THEREIN MAY BE INCOMPLETE OR CONDENSED AND THAT THE ASSUMPTIONS, INFORMATION, AND DATA OBTAINED THROUGH CUSTOMER’S ACCESS AND USE OF THE MERCER REPORTS 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 AND PAYSCALE BE LIABLE TO CUSTOMER 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.
    5. EXCEPT IN RESPECT OF THE INDEMNITY FOR INFRINGEMENT CLAIMS AS SET FORTH IN SECTION 10.1(A) OF THE MASTER SUBSCRIPTION AGREEMENT, CUSTOMER ACKNOWLEDGES THAT NO DEFENSE OR INDEMNITY OF ANY KIND IS PROVIDED HEREUNDER BY MERCER WITH RESPECT TO ANY CLAIM, DEMAND, CAUSE OF ACTION, COST, LOSS, DAMAGE, EXPENSE OR LIABILITY ARISING FROM OR BASED ON CUSTOMER’S OR ANY THIRD PARTY’S USE OF OR INABILITY TO USE THE MERCER REPORTS.  MERCER’S OBLIGATIONS REGARDING INFRINGEMENT CLAIMS AND THE PROCESS FOR CUSTOMER TO TENDER SUCH THIRD PARTY CLAIMS FOR DEFENSE AND INDEMNITY BY MERCER IS SUBJECT TO THE THEN-CURRENT TERMS SET OUT IN SECTIONS 10.1 AND 10.3 OF THE MASTER SUBSCRIPTION AGREEMENT (INTERPRETED WITH NO MODIFICATIONS EVEN IF PAYSCALE HAS NEGOTIATED AND AGREED UPON DIFFERENT TERMS WITH CUSTOMER).
    6. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. ANY RIGHTS WHICH CUSTOMER MAY HAVE AS A RESULT OF THE APPLICATION OF APPLICABLE LAWS IN THESE JURISDICTIONS SHALL NOT BE AFFECTED BY THIS DISCLAIMER OF LIABILITY.
  6. Intellectual Property Rights.  Customer agrees and acknowledges that the Mercer Reports, including, the information contained in their databases, their table structures, queries, and reports, their arrangement, organization, and methods of interactions, the algorithms and other database artifacts, the sites’ structure, all textual and graphical materials, and all technical information and other content appearing on the sites 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 Reports, and Mercer retains the exclusive and sole ownership of the surveys, and all related intellectual property rights. Other confidential and trade secret information of Mercer may be revealed to Customer in the future. Customer agrees to protect and hold the Mercer Reports in accordance with its confidentiality obligations set out in the Master Subscription Agreement.
  7. Mercer a Third Party Beneficiary. Customer specifically agrees that Mercer is an intended third party beneficiary of this Agreement with respect to Mercer Reports, and, except with respect to the collection of payment of amounts due by Customer under an Order Form, is entitled to the rights and benefits under this Agreement and may enforce the provisions hereof as if it were a party to this Agreement.