Our performance of the Services (whether provided pursuant to a written SOW or not) shall be subject to the following terms and conditions, including without limitation, the provisions as regards Legal Disputes and Limitation of Liability:
1. Definitions: In this Agreement, the following terms have the meanings indicated:
2. Engagement and Payment Terms:
A. We will perform the Services in consideration of your payment of compensation to us. Our compensation for the Services, such as professional fees, commissions or other amounts payable to us (“Compensation”) will be set forth in the applicable SOW or as otherwise agreed between us from time to time. Our reasonable expenses will be charged at cost. You will be responsible for any sales, services taxes, value added taxes or similar taxes related to the performance or receipt of the Services. If at your written request, we provide any additional services to you and there is no SOW for such additional services, you will pay us, at our then current standard rates, for all our time spent in such additional services, and will reimburse all our reasonable expenses, in connection with such additional services. Such additional services shall be subject to these terms and conditions; and
B. Invoices are due and payable within fourteen (14) days of the date of the invoice. If any invoice is not timely paid, we may exercise our right to claim interest for late payment as permitted by applicable law. If any invoice remains unpaid for longer than ninety (90) days from the date of the invoice, we may either suspend the provision of the Services until payment is received, or terminate this Agreement and/or any SOW with immediate effect.
3. Provision of Information and Assistance: You agree that we need certain information, direction and cooperation to enable us to provide the Services and we shall use all information and data supplied by you or on your behalf without independently verifying the accuracy, completeness or timeliness of it. We will not be responsible for any delays or liability arising from missing, delayed, incomplete, inaccurate or outdated information and data, or if you do not provide adequate access to your employees, agents or other representatives necessary for us to perform the Services.
4. Instructions and Reporting: We will take instructions from and report to the person(s) specified in the applicable SOW (or any successor) or any person(s) nominated by such person(s) from time to time. Instructions to and reports from us may be provided either in writing or, where appropriate, orally.
5. Confidential Information and Data:
A. Confidentiality Obligation: Each party (“the disclosing party”) is likely to disclose information to the other party from time to time in the course of the provision of the Services, which is marked or designated as or proprietary at or prior to disclosure or which would appear to a reasonably prudent person to be and/or proprietary in nature (“ Information”). The party receiving the Confidential Information (“the receiving party”) will not divulge or communicate it to any person other than in connection with the provision of the Services or as otherwise provided for in this Agreement. This restriction does not apply to information which (i) the receiving party must by law or legal process disclose, (ii) is either already in the public domain or enters the public domain through no fault of the receiving party, (iii) which is available to the receiving party from a third party who, to the receiving party’s knowledge, is not under any non-disclosure obligation to the disclosing party, or (iv) is independently developed by the receiving party without reference to any Confidential Information of the disclosing party.
B. Permitted Use: Notwithstanding Section 5(A), we may include your name in our representative client listings and your contact details and information about the terms of this Agreement in our internal client management and conflict checking databases. If applicable, you also agree that we may use information and data provided by you so that we may, together with information and data provided by our other clients, create analytical trend data, databases and intellectual capital to improve the quality of our advice for the benefit of all clients, provided that no particular client or individual shall be identifiable. Notwithstanding the foregoing, you agree that your name may appear in a list of participating organizations for the reports in which you contribute your data to participate in our compensation and benefit surveys.
C. Duration of Confidentiality: Each party’s respective obligations under Section 5(A) shall survive for a period of five (5) years from the date of termination of this Agreement or for such longer period as is required by law, except that any trade secrets disclosed to the receiving party shall be maintained in confidence in perpetuity or until such time as they are no longer reasonably considered to be trade secrets by the disclosing party.
D. Records Retention & Destruction: Notwithstanding anything to the contrary in this Agreement, but subject to the terms and conditions of Section 5, we may (i) retain copies of Information that is required to be retained by law or regulation, (ii) retain copies of our work product that contain Information for archival purposes or to defend our work product, and (iii) in accordance with legal, disaster recovery and records retention requirements, store such copies and derivative works in an archival format (e.g. tape backups), which may not be returned or destroyed. We may retain your information in paper or imaged format and we may destroy paper copies if we retain digital images thereof.
6. Personal Information: Each party (and each of its Affiliates) are entitled to assume that the other party (and each of its Affiliates) have complied and will continue to comply with their obligations arising from data protection and privacy laws in force from time to time to the extent applicable to this Agreement and the Services. This includes, without limitation, (i) any obligation, if any, of you (and your Affiliates) to obtain any required consent(s) in respect of the transfer of information to us by you 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 us, and (iii) any obligation with respect to the use, disclosure and transfer by us of Personal Information as necessary to perform the Services or as expressly permitted under this Agreement. The parties acknowledge that any use or processing by us of Personal Information supplied by or on behalf of you in connection with the Services shall be done solely on behalf of you and for your purposes and we shall deal with such Personal Information only in accordance with such reasonable instructions as you may provide from time to time in the applicable SOW or as reasonably necessary for the purpose of providing the Services. We also confirm that we have taken appropriate technical and organizational measures to prevent the unauthorized or unlawful processing of Personal Information and the accidental loss or destruction of, or damage to, Personal Information in accordance with applicable law.
7. Intellectual Property:
A. All materials prepared by us specifically and exclusively for you pursuant to this Agreement (the “Work”) shall be owned exclusively by you. You acknowledge that we will retain all copyright, patent and other intellectual property rights in the methodologies, methods of analysis, ideas, concepts, know-how, models, tools, techniques, skills, knowledge and experience, and any graphic or digitized representations of any of these, owned or possessed by us before the commencement of, or acquired by us during or after, the performance of the Services including without limitation, all systems, software, specifications, documentation and other materials created, owned or licensed and used by us or our Affiliates or subcontractors in the course of providing the Services (the “Intellectual Property”) and we shall not be restricted in any way with respect thereto. To the extent any Work incorporates any Intellectual Property, we hereby grant you a non-exclusive, non-transferable right to use such Intellectual Property solely for purposes of utilizing the Work internally in accordance with the terms of this Agreement. Notwithstanding the foregoing, we shall not acquire any ownership in any material provided by you to us.
B. Unless we provide our prior written consent, you will not use, in a manner other than as mutually contemplated in writing when we were retained by you to perform the applicable Services, or disclose to any third party, other than your attorneys, accountants or financial advisors with a need to know, any Work or Intellectual Property or other material supplied by us under this Agreement, and we shall have no liability with respect to, modifications made by any person other than us to the Work, Intellectual Property or other work product provided to you by us. You will reimburse us and our Affiliates in respect of any Loss (as defined in Section 11) incurred by us as a result of your breach of this obligation.
8. Conflicts of Interest: We currently or may in the future act for other clients in circumstances which could potentially lead to a conflict of interest (such as one of your competitors or a person who has a commercial relationship with you) and in these cases we agree to observe non-disclosure procedures (such as firewall protocols and other safeguards) to ensure confidences are protected.
9. Legal Disputes: If you request us to assist or become involved (whether or not as a party) with a legal dispute between you and a third party, you will pay us, at our then current standard rates, for all our time spent in such assistance, and will reimburse all our reasonable expenses, in connection with such request; provided, that the foregoing shall not apply in the event such dispute is finally determined to have resulted primarily from the intentional breach or fraud on our part. Nothing in this Agreement shall require you to make any such payments to us where we (a) are required to become involved by subpoena or other similar order of the court unless it is related to your request above; or (b) become involved in a court dispute in respect of our own interests and not voluntarily at your request.
10. Dispute Resolution:
A. Should a dispute arise between you and us in relation to this Agreement or the Services, (other than for a dispute relating to Payment Terms), in order to avoid the costs and delays of any legal action, the parties shall first attempt to settle such dispute through consultation and negotiation in good faith and in a spirit of mutual cooperation by adopting an alternative dispute resolution procedure (“ADR”).
B. If any dispute cannot be successfully resolved between the parties through the ADR within six (6) months of the date of the initial demand for ADR by one of the parties, then either party may resort to legal proceedings pursuant to Section 22, provided that failure by any party to fulfill its obligations in this Section 10, including failure to meet timely upon the other party’s written notice for ADR, shall be deemed as a waiver of such six (6) month waiting condition.
C. Nothing in this Section will prevent either party from resorting to legal proceedings if interim relief from a court is necessary to prevent serious and irreparable injury to that party or to others.
11. Limitation of Liability:
A. The aggregate liability of us, our Affiliates and any officer, director or employee of ours and our Affiliates (“Mercer Parties”) to you, your Affiliates, your officers, directors or employees or those of your Affiliates and any third party (including any benefit plan, its fiduciaries or any plan sponsor) for any and all Losses arising out of or relating to the provision of Services by any of the Mercer Parties shall not exceed the Compensation received by us for the Services giving rise to such Loss. We shall have no liability for the acts or omissions of any third party (other than our subcontractors).
B. In no event shall either party or its Affiliates be liable in connection with this Agreement or the Services for any loss of profit or incidental, consequential, special, indirect, punitive, exemplary or similar damages. The provisions of this Section 11 shall apply to the fullest extent permitted by law. Nothing in this Section 11 limiting the liability of a party shall apply to any liability to have been caused by the intentional breach, willful default, conduct in bad faith or fraud of such party or which cannot lawfully be limited, modified or excluded.
C. For purposes of this Agreement “Loss” means damages, claims, liabilities, losses, awards, judgments, penalties, interest, costs and expenses, including reasonable attorneys' fees, whether arising in tort, contract or otherwise. For the avoidance of doubt, multiple claims arising out of or based upon the same act, error or omission, or series of continuous, interrelated or repeated acts, errors or omissions shall be considered a single Loss.
D. Each of the parties acknowledges that the Compensation for the Services to be provided under this Agreement and the applicable SOW reflects the allocation of risk set forth in this Section 11.
12. Unforeseen Events: Neither party will be in default or liable for any delay or failure to perform under this Agreement due to any act or event beyond the control of the affected party, excluding labor disputes, provided such party immediately notifies the other party.
13. Duration and Termination of this Agreement: This Agreement will continue until terminated as provided in this Section, except as provided otherwise in a SOW. This Agreement and any SOW may be terminated (i) by either party giving upon ninety (90) days’ prior written notice to the other party, (ii) by either party upon material breach by the other party, which breach is not cured within thirty (30) days after receipt of written notice thereof, or (iii) immediately by us for non-payment of invoices by you as provided for under Section 2 of these Terms and Conditions. After the termination of this Agreement, Sections 5 (Confidential Information and Data), 6 (Personal Information), 7 (Intellectual Property), 9 (Legal Disputes), 10 (Dispute Resolution), 11 (Limitations of Liability), 13 (Duration and Termination of this Agreement) and 15 (Notices) through and including 23 (Severability) of these Terms and Conditions will continue in full force and effect. Any such termination, and any termination pursuant to Section 12 (Unforeseen Events), shall not relieve you of your obligation to pay for Services rendered and expenses incurred by us up to and including the effective date of such termination, and such termination may require you to pay termination fees to the extent provided in a SOW. Notwithstanding the foregoing, to the extent that the parties agree that we shall continue to provide Services after the effective date of termination of this Agreement or any SOW, the terms and conditions of this Agreement and the applicable SOW shall survive until such Services are completed or the parties agree that the Services shall no longer be provided.
14. Terms Incorporated by Reference: The terms set forth in a SOW shall be deemed incorporated by reference into this Agreement for the purposes of that SOW.
15. Notices: Any notice which is to be given by one party to the other under this Agreement will be given in writing and delivered to the address of the other party set out in this Agreement or any other address specified subsequently. A notice will be effective upon receipt thereof by the other party. Either party may change its address for service by giving notice to the other party in accordance with this paragraph.
16. No Third Party Beneficiaries: Neither this Agreement nor the provision of the Services is intended to confer any rights or benefits on any third party, other than the Affiliates of each party that execute a SOW, and, in such event, solely as set forth in such SOW and this Agreement.
17. No Publicity: Except as permitted in Section 5(B), each party agrees not to refer to the other party or attribute any information to the other party in the press, for advertising or promotional purposes, or for the purpose of informing or influencing any other party, without the first party’s prior written consent.
18. Waiver: The failure by either party to insist upon strict performance of any provision of this Agreement shall in no way constitute a waiver of rights under this Agreement.
19. Warranties of Mercer: Except as expressly set forth in this Agreement, we expressly disclaim any warranty, express or implied, including but not limited to any implied warranty of merchantability and fitness for a particular purpose.
20. Entire Agreement, Amendment, Assignment, Subcontracting: This Agreement (including any SOW and any schedules or exhibits attached hereunder) contains the entire agreement between the parties with respect to the subject matter. Except with respect to a change in address for notices, this Agreement shall not be amended except by a written document executed by both parties. In the event of any inconsistency between the terms of a SOW and those in the Agreement, the provisions contained in this Agreement shall prevail unless the SOW specifically amends a term contained herein. Neither party may assign this Agreement without the prior written consent of the other, except that we may assign this Agreement to our Affiliate with reasonable prior written notice to you. We may subcontract with any of our Affiliates or any third parties upon our reasonable prior written notice to you, provided that we shall be responsible for any such subcontractor.
21. Independent Contractor: You agree that we are engaged to provide the Services pursuant to this Agreement as an independent contractor. Nothing in this Agreement should be construed to create a fiduciary, partnership, joint venture, agency or employer-employee relationship between the parties. We are not authorized to bind you in any respect whatsoever.
22. Governing Law and Forum: This Agreement shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or relating to this Agreement, shall be referred to and finally resolved by arbitration in accordance with the India Arbitration and Conciliation Act, 1996, for the time being in force at the commencement of the arbitration, which are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be New Delhi. The language used in the arbitration shall be English.
23. Severability: If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected by such determination and shall remain binding upon the parties.