Merrill Corporation - Terms & Conditions

Last Updated: October 8, 2009

General Terms and Conditions

Be sure to read the Terms of Use below, as they cover the terms and conditions that apply to your use of this website (the "Service," "Website," or "Site"). Access to this Website and use of this Service, including continued use of the Site are subject to these Terms of Use, and by accepting these Terms of Use, you agree to be bound by them for your initial use and all future uses of the Site. Merrill Communications LLC of One Merrill Circle, St. Paul, MN 55108 or its affiliates (collectively "Merrill") may change the Terms of Use from time to time so be sure to read the Terms of Use each time you use the Service. By continuing to use the Service following such modifications, you agree to be bound by such modifications to the Terms of Use. If you do not agree to the Terms of Use, please exit this Website.

Information Requirements; General

In consideration of use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself when requested by the Site, and (b) to maintain and update this information to keep it true, accurate, current and complete. If any information provided by you is or we have reasonable grounds to suspect it is untrue, inaccurate, not current or incomplete, we have the right to terminate your account and refuse any and all current or future use of the Service. You agree not to resell or transfer the Service or use of or access to the Service.

ACCESS TO THIS WEBSITE (OR PORTIONS THEREOF) AND THE USE OF INFORMATION, MATERIALS, PRODUCTS OR SERVICES PROVIDED THROUGH THIS WEBSITE (OR PORTIONS THEREOF), IS NOT INTENDED, AND IS PROHIBITED, WHERE SUCH ACCESS OR USE VIOLATES APPLICABLE LAWS OR REGULATIONS.

This Website is a business and commercial site. Unless otherwise noted on the Website, it is not intended for use by children or minors.

License Terms

Merrill grants you a non-exclusive, non-sub licensable, terminable, revocable, non-transferable license (the "License") to access the Website solely to purchase products and services from us or from customers for whom we are providing services. You understand and agree that the License and your log-on data ("Password" and "User ID") are granted to you individually and may not be shared with any other person. You agree to use your best efforts to ensure that no one else learns your User ID or Password or otherwise has access to them, including your support staff or other representatives of your organization. Merrill may block your access to the Website without notice if we become aware of any breach by you of these Terms of Use, including any unauthorized use of your User ID or Password.

You acknowledge and agree that you: (a) must provide for your own access to the Internet and pay any service fees associated with such access, (b) must provide all equipment necessary for you to make such connection to the Internet, including a computer and modem, (c) may be required to download and install additional software plug-ins or applications in order to use certain features or access certain information contained on the Site, and (d) are fully responsible for all activities that occur under your User ID or Password.

Limitations and Disclaimers

By using this Website, including any applets, software, and content contained therein, you agree that use of the Service is entirely at your own risk. THE SERVICE AND DATA IS PROVIDED "AS IS" AND "AS AVAILABLE" AND TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE. SPECIFICALLY, MERRILL DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, DOCUMENTS, PRODUCTS OR SERVICES AND (2) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOUR USE OR RELIANCE UPON THE DATA SHALL BE AT YOUR OWN RISK.

NEITHER MERRILL NOR ANY OF ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, DATA OWNERS OR CONTENT OR SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER OR NOT FORESEEABLE AND HOWEVER ARISING, INCLUDING BUT NOT LIMITED TO LOST INCOME OR LOST REVENUE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. WE DO NOT SEEK TO EXCLUDE OR LIMIT LIABILITY FOR FRAUDULENT MISREPRESENTATION AND YOUR RIGHTS AS A CONSUMER, IF ANY, ARE NOT AFFECTED HEREBY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SET OUT ABOVE, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE RESPECTIVE LIABILITY OF MERRILL, ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AFFILIATES, AND CONTENT OR SERVICE PROVIDERS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. THE AGGREGATE LIABILITY TO YOU, WHETHER FOR NEGLIGENCE, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE PRICE PAID FOR THE DATA OR SERVICES TO WHICH THE INCIDENT RELATES.

Ownership and Changes

Merrill is the sole owner and/or authorized user of (a) all trademarks, registered trademarks and/or service marks appearing on this Website (other than those provided by our clients), (b) all photographs, images, audio, music, text, animations, and applets incorporated into this Website, (c) the "look and feel" of the Website, and (d) all software contained on the Website or otherwise provided to you in connection with your use of the Service. Merrill is also the copyright owner or licensee of the content and/or information on this Website, including but not limited to any icons, designs and screens appearing at the Website. If you make use of this Website, except as otherwise provided in these Terms of Use, you may violate copyright and other laws of the United States or other countries, confidentiality agreements, as well as applicable state laws, and may be subject to penalties.

Merrill reserves the right to change any information on this Website, including but not limited to revising and/or deleting features or other information without prior notice. Clicking on certain links within this Website might take you to other websites for which Merrill assumes no responsibility of any kind for the content, availability or otherwise. The content presented at this Website may vary depending upon your browser limitations.

Security

We take reasonable and appropriate measures, including encryption, to make sure that your personal information is disclosed only to those specified by you. However, the Internet is an open system and we cannot and do not guarantee that the personal information you have entered will not be intercepted by others and decrypted.

Payment

If you wish to make purchases through the Service, you may be asked to supply certain information, including credit card or other payment mechanism information. You agree that all information you provide through the Service for purposes of making purchases will be accurate, complete and current. You agree that your credit card will be charged when the products are shipped to you. You also agree to pay all charges incurred by users of your account and credit card or other payment mechanism at the prices in effect when such charges are incurred. You also will be responsible for paying any applicable taxes relating to purchases through the Service. Finally, the prices set forth on this Site may change at any time.

User Conduct on the Service; user responsibilities

While using the Service, you may not:

knowingly or intentionally restrict or inhibit any other user from using and enjoying the Service; or
knowingly or intentionally post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability; or
knowingly or intentionally post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial communication (except as otherwise expressly permitted by Merrill) or engage in spamming or flooding; or
knowingly or intentionally post or transmit any information or software that contains a virus, trojan horse, worm or other harmful component (a "Harmful Component") (notwithstanding the foregoing, you agree to continuously use up-to-date, industry standard virus detection devices to ensure that you do not transmit any Harmful Component to the Website); or
post, publish, transmit, reproduce, distribute or in any way exploit any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software or other material); or
upload, post, publish, transmit, reproduce, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder; or
upload, post, publish, reproduce, transmit or distribute in any way any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted as a collective work under U.S. copyright laws; or
make the Website or your User ID or Password available to any other person; or
de-compile, reverse engineer, disassemble, rent, lease, loan, sublicense and create derivative works from the Website; or
copy, modify, reproduce, republish, distribute, transmit or use for commercial or public purposes the Website, for any purpose; or
download or save a copy of any of the screens appearing on the Site for any purpose unless authorized by Merrill;
use or otherwise export or re-export the Website in violation of the export control laws and regulations of the United States of America; or
use or otherwise access the Site in violation of any federal, state, local and international laws, ordinances, rules, and regulations (collectively, "Laws"), including without limitation, any Laws relating to consumer privacy rights, consumer protection from solicitation, fair information practices. advertising, telemarketing, electronic communications, SPAM, do not call lists, bulk mailing and advertising. the rules and regulations of the Federal Communications Commission, the Securities and Exchange Commission and the applicable stock exchanges and over-the-counter markets.

You acknowledge that various Laws exist throughout the world that regulate, among other items, consumer privacy rights, consumer protection from solicitation, fair information practices, advertising, telemarketing, electronic communications, SPAM, do not call lists, bulk mailing and advertising. You are solely responsible for ensuring that your use of the Service is not in violation of any Law. You acknowledge that Merrill is, in no way, responsible any such compliance.

Merrill has no obligation to monitor the Service. However, you acknowledge and agree that Merrill has the right to monitor the Service electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers. Merrill reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, inappropriate or in violation of these Terms of Use.

Failure to Comply with Terms and Conditions and Termination

You acknowledge and agree that Merrill may in its sole discretion deny you access to the Website or to access third-party services, merchandise or information on the Internet through the Website, and Merrill shall have no responsibility to notify any third-party providers of services, merchandise or information nor any responsibility for any consequences resulting from lack of notification. In addition, your access to the Website will terminate upon Merrill’s discretion should Merrill believe, in its sole discretion, that you have violated any of these Terms of Use. Upon termination of your access to the Website, the License will automatically terminate, and you must immediately cease all access to and use of the Website through any means. Upon your cessation of use of this Service, for whatever reason, you agree to promptly destroy all items pertaining to the Service, including without limitation, all copies of screens, on-line help information, documentation relating to the Service and your User ID and Password.

Links From and To This Website

You acknowledge and agree that Merrill and any of its co-branding providers have no responsibility for the accuracy or availability of information provided by linked sites. Links to external websites do not constitute an endorsement by Merrill or its co-branding providers of the sponsors of such sites or the content, products, advertising or other materials presented on such sites.

Information in the many web pages that are linked to the Website comes from a variety of sources. Some of this information comes from official Merrill licensees, but much of it comes from unofficial or unaffiliated organizations and individuals, both internal and external to Merrill. Merrill does not author, edit, or monitor these unofficial pages or links. You acknowledge and agree that Merrill shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.

Data Protection Consent

By agreeing to these Terms of Use, you acknowledge that you have read understood and agree to the terms of our Privacy Statement.

We agree that all non-public information obtained by us through your use of the Website will be held in strictest confidence by us and will be divulged only to those directors, officers, employees and agents, including legal counsel, accountants and financial advisers, who have a need to know such information in strictest confidence. We will direct such directors, officers, employees and agents to treat such information confidentially and shall advise such persons of the confidential nature of such information. Any publicly available communication or material you post or transmit to us over the Internet is, and will be treated as non-confidential and non-proprietary. Upon the transmission of any such personal information to us, you expressly grant permission to us to disseminate and/or use such information for any lawful purpose.

Posting or transmitting of any unlawful, threatening, libelous, defamatory, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offence or violation of any law is strictly prohibited.

We reserve the right to monitor your communications with us whether by mail, voice, fax, e-mail or any other form of transmission for the purposes of quality control, security and other business needs.

Notwithstanding the foregoing, all personal data provided to us as a result of this Website will be handled in accordance with our Privacy Statement.

Miscellaneous

The Website is controlled by Merrill from its offices within the United States. Access to, or use of, this Website or information, materials, products and/or services on this Website may be prohibited by law in certain countries or jurisdictions. You are responsible for compliance with any applicable laws of the country from which you are accessing this Website. We make no representation that the information contained herein is appropriate or available for use in other locations outside the United States or the United Kingdom.

You agree that the substantive laws of the State of Minnesota in the United States shall govern any controversy or claim or whatever nature arising out of or relating to the use of this Website, without regard to any conflict of laws provisions. All actions or proceedings arising out of or relating to these Terms of Use, their validity, performance, enforcement or breach, or the subject matter of these Terms of Use may be venued in the State of Minnesota in the United States and you hereby irrevocably consent and submit yourself to the personal jurisdiction of said courts for all such purposes. Notwithstanding the foregoing, we retain the right to bring legal proceedings in any jurisdiction where we believe that breach of this agreement is taking place or originating.

The failure of Merrill to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred.

These Terms of Use represent the entire agreement between the parties regarding the use of the Website and supersedes all previous agreements, promises, proposals, representations, understanding and negotiations, whether written or oral, between the parties respecting the subject matter hereof.

Questions

If you have any questions regarding these Terms of Use or any other matter, you may contact us by writing to us at Merrill Communications LLC, One Merrill Circle, St. Paul, MN 55108, Attn.: MCS Legal Department or e-mailing legal@merrillcorp.com.

Supplemental Terms and Conditions for Specific Products

The following supplemental terms and conditions apply for the specific Merrill products noted. To the extent there is a conflict between these supplemental terms and conditions and the general terms and conditions, these supplemental terms and conditions control your use of the Service.

List Acquisition Services

The term "Data" means any names and/or address list purchased or rented from Merrill for use in sending (1) emails through this Website or (2) materials printed by Merrill through this Website, in each case, to your customers or prospects. You are granted a nonexclusive, nontransferable, limited license to access and use the Service and Address Lists solely for purchasing products and services from Merrill through the Website, or, in the event that you have purchased the Data, to use it for any other lawful purpose. You agree to use the Service for the sole purpose of marketing to prospective buyers or sellers of your products and services, within the United States, with no right to redistribute or resell in whole or in part without the prior written approval of Merrill. The Service may not be accessed or used outside of the United States without the prior written consent of Merrill.

You acknowledge that the Data shall at all times remain the intellectual property of Merrill’s licensors and third party data owners (collectively the "Data Owner") who provided the Data to Merrill, and that you have no proprietary rights whatsoever in the Data.

Permitted Uses and Restrictions

You may use the Data provided pursuant to this Agreement, subject to the following:

The Data may be used for your marketing programs to consumers and businesses, including house file enhancements, mailing list screens, modeling and list analysis.
You may not sell, lease, rent or, except as otherwise authorized, provide to any other party (i) the Data or a derivative of the Data, (ii) its own file, as enhanced with the Data, or (iii) any direct marketing list, model, analysis, code or report utilizing or derived from the Data.
You may not use the Data as a factor in establishing an individual’s creditworthiness or eligibility for (i) credit or insurance, or (ii) employment.
You shall not use any Data to advertise, sell, or exchange any products or services relating to illegal or illicit activities, including, without limitation, sexual products or services, drug products or services, pornographic materials, weapons, or involving credit repair services.
All marketing communications used in connection with any list created by or for you derived from the Data shall (i) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient of such solicitation, or the source of the recipient’s name and address; (ii) comply with all applicable federal and state laws, rules and regulations; and (iii) comply with all applicable privacy policies, ethical use and Fair Information Practices published by the Direct Marketing Association ("DMA").
You agree to furnish Merrill, if requested, two (2) copies of each mail piece and/or telemarketing script using information derived from the Data.
You may not use the Data, in whole or in part, in the development of (i) any application that is outside the scope of this Agreement or (ii) any data products or services to be provided to third parties including, without limitation, any list enhancement or data appending service or product.
Merrill reserves the right to review and pre-approve your intended use of the Data prior to Merrill’s acceptance of an order.
Merrill is obligated to comply with certain restrictions and requirements placed upon the use of the Data by the Data Owners. You shall strictly comply with all restrictions and requirements now or hereafter imposed upon Merrill by any Data Owner and made known to you in writing.
You represent and warrant that, you have implemented and maintain an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any customer information at issue.
The purchased lists are multi-use for one year; therefore, there are no restrictions on the number of mailings per list in the given year. You agree to not use Data one year after date of purchase or lease.
You may preview records that are returned from selected search parameters in order to ascertain targeted and appropriate addresses.

Consumer Inquiries

You shall be responsible for accepting and responding to any communication initiated by a consumer ("Consumer Inquiries") arising out of your use of the Data. You agree that you will provide "in house" suppression to consumers, upon request by a consumer, from your future marketing initiatives and you agree to honor any such request by suppressing such consumer information from your marketing solicitations. No reference to Merrill or the Data Owners in written or oral communication to a consumer or in your scripts in responding to Consumer Inquiries shall be made without Merrill’s and the Data Owner’s prior written approval.

Suppression Files

The Data products ("Products") are built using Suppression Files appropriate for that Product, including the Direct Marketing Association’s Mail Preference Service and Telephone Preference Service files, e-mail suppression files, Data Owner opt-out files, FTC DNC file and the state Attorneys General suppression files, to flag an individual consumer as having opted out of receiving marketing solicitations. Except with regard to your customers, you agree to honor such consumers’ elections not to receive marketing solicitations in any use of the Data and in the event that you do not honor such consumers’ choice not to receive marketing solicitations, Merrill and the Data Owner may cease delivery of the Data and/or Services and/or terminate this Agreement immediately. You acknowledge that neither Merrill nor Data Owner guarantees that the names or telephone numbers of all such consumers have been flagged or removed from the Data supplied to you hereunder. You further represent that if you are telemarketing in a state that requires registration, you have registered in the applicable state. You acknowledge that it is your sole responsibility to ensure that the most current suppression information has been applied to its files before such files are used for marketing and you agree to defend, indemnify and hold harmless Merrill and the Data Owner, as set forth below, due to your failure to comply with its obligations set forth in this Section.

Indemnification

You shall defend, indemnify, and hold harmless Merrill and the Data Owner from and against direct and actual claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from your misuse or unauthorized use of the Data. Merrill shall give you prompt written notice of any claim of which it has knowledge, and shall provide you with the assistance, information and authority necessary to perform your obligations under this Section.