Benefits Agreement Contract with Mercer for Benefits Consulting 2013_~ ,
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Bill Nary
HR Director/City Attorney
The City of Meridian
33 E. Broadway Ave
Meridian ID 83642
November 1, 2012
Statement of Work ("SOW")
Dear Bill,
Shelli Stayner, Principal
225 North 9th Street, Su1te 410
Boise, ID 83702
208 338 6477
Shelli.R,Stayner@mercer,com
www,mercer.com
The objective of this Statement of Work ("SOW") is to confirm the scope of our work and the
compensation for this engagement. This SOW is subject to the terms and conditions contained in
our existing engagement letter dated August 4, 2009. All capitalized terms not defined in this SOW
shall have the meanings ascribed to them in our existing engagement letter.
Service Details
1. Service Name: 2013 Scope of Service
2. Description of Mercer responsibilities: See attached Service Schedule
3. Description of client responsibilities: Mercer's ability to provide services as described in this
letter is dependent on Mercer being provided with and continuing to receive accurate, up to
date and timely documentation and information from you and any insurance carriers providing
benefits.
4. Period of time over which work will be performed: 2013
Compensation/fees: We will be compensated for the services described herein in
consideration of your payment of our professional fees of $40,000. We will bill you monthly
with such invoices due within thirty (30) days of your receipt of an undisputed invoice. If any
invoice remains unpaid after 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 SOW
with immediate effect.
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We may need to utilize various subcontractors ("Subcontractors") in the course of our
provision of the Services to assist us in such tasks as printing and mailing, development of
interactive tools, graphic design, etc. You consent to our use of the Subcontractors and
further acknowledge and agree that we may provide such Subcontractors with your
Confidential Information, including Work, on a confidential and a need to know basis for
the purposes contemplated by this SOW.
Additional Terms
We do not act on behalf of any insurer or other service provider, are not bound to utilize any
particular insurer or service provider, and do not have the authority to make binding
commitments on behalf of any insurer or service provider. In addition, we do not guarantee or
make any representation or warranty that coverage or service can be placed on terms
acceptable to you. We are not responsible for the solvency or ability to pay claims of any
insurance carrier or for the solvency or ability of any service provider to provide service.
Insurance carriers or service providers with which your other risk or insurance coverage or
other business is placed will be deemed acceptable to you, in the absence of contrary
instructions from you.
You understand that the failure to provide, or cause to provide, complete, accurate, up-to-date,
and timely documentation and information to us, an insurer, or other service provider, whether
intentional or by error, could result in impairment or voiding of coverage or service. You agree
to review all policies, endorsements and program agreements delivered to you by us and will
advise us of anything which you believe is not in accordance with the negotiated coverage and
terms within thirty (30) days following receipt.
You expressly acknowledge that, with respect to the provision of the Services, we are not, nor
are any of our Affiliates or subcontractors, an "administrator" within the meaning under
applicable law, including the Employee Retirement Income Security Act of 1974, as amended
("FRIBA"), nor, with respect to the provision of the Services, are we or any of our Affiliates or
subcontractors a "fiduciary" within the meaning under applicable law or ERISA, unless
provided otherwise herein or required by applicable law.
Title V of the Gramm-Leach-Bliley Act and related state laws and regulations establish
limitations on the use and distribution of non-public information collected by financial
institutions from their customers and consumers. Our insurance-related work qualifies us as a
financial institution under this Act. Our Privacy Policy Notice and additional information
regarding other compliance policies at Mercer, including our conflicts of interest policy, are
available at www.mercer.com/transparency. At this web address you will also find information
regarding Marsh & McLennan Companies, Inc, and its subsidiaries' equity interests in certain
insurers and contractual arrangements with certain insurers and wholesale brokers.
~~~ ~~. MAR5H & MCLENNAN
~: ' ~ ~
:~ ~ MERCER
Page 3
Without limiting the generality of Section 2 of our engagement letter, you will inform us at the
commencement of our work under each SOW (and thereafter in the event of any change) as to
whether or not you or any of your Affiliates are subject to any restrictions or obligations directly
relevant to the Services as a result of or in connection with having received any federal
financial assistance in connection with any federal law or program, including, but not limited to,
the American Recovery and Reinvestment Act of 2009 and the Emergency Economic
Stabilization Act of 2008, including the Troubled Assets Relief Program. In the event that you
or your Affiliates are subject to such restrictions or obligations, you will also promptly describe
such restrictions and obligations to us in writing in reasonable detail and make an expert
(including internal or external counsel) available to us for additional clarification that we
reasonably request regarding the analysis or interpretation of any such restrictions or
obligations. You agree that we will be entitled to rely on, and have no liability for, the accuracy
and completeness of the information, analysis or interpretation that is provided to us in
connection with the foregoing.
We appreciate
knowledge }
Mercer
By:
business and look forward to working with you on this engagement. Please
greement to the terms contained herein by signing below.
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ACCEPTED AND AGREED
The City of Meridian
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~~~:~ ~ MARSH & MCLENNAN
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H&B SERVICE SCHEDULE
Our Services consist of the following;
® Conduct strategic planning sessions to review performance of Client's current employee
benefits coverage and establish future objectives and strategies to manage Client's
employee benefit coverages to which this agreement applies.
® Meet with the Client's key designated representatives on as needed basis, to discuss
strategy and open items.
^ Develop a mutually agreeable renewal action plan and timeline that meets the Client's
stated objectives.
® Keep the Client informed of significant changes and/or trends in the employee benefits
marketplace.
^ Benchmark medical and dental plan costs and employee contributions to industry, size
and regional standards on as needed basis.
^ Analyze factors driving Client's plan costs if experience data is available. In connection
with such analysis, we will review utilization reports to determine possible causes of
identified cost increases. Assist Client in managing risks and costs of its employee
benefits coverages.
® Establish comprehensive claims reports for identified coverages for medical and dental
detailing paid claims (and reimbursements if applicable), premium/funding and
enrollment summaries. We will review these reports with Client on as needed basis and
will identify and discuss trends and potential problems.
® Provide cost projections and funding analysis (review of funding methodology with
emphasis on employer costs and the tier structure of the contribution.)
^ When marketing your plans, prepare an analysis comparing current costs, plan designs,
administration costs, network discounts and network accessibility.
^ With respect to the renewal process, we will conduct an annual review during the
renewal process to include negotiations, on Clients' behalf, with current vendors/carriers,
as per Client's request.
^ Upon the request of Client, we will assist Client in the preparation of a RFP for purposes
of obtaining competitive quotes from the marketplace. We will be the primary point of
contact during the bidding process.
® Upon request of Client, evaluate and assist in the management of voluntary benefit
products offered to Client's employees.
H&B Service Schedule 0202c1n.doc
® Assist Client in the implementation of the benefit program by dealing with vendor/carriers
and performing contract and SPD review for purposes of determining conformity to
agreed upon plan provisions and costs.
® Advise Client with respect to available technology platforms to support delivery and
administration of its employee benefit plans.
® Assist Client in the development of paper and/or web-based communication strategies.
® Identify and negotiate on the Client's behalf with insurers and other benefit program
providers and keep the Client informed of significant developments. We shall be
authorized for purposes of this Agreement to represent and assist the Client in all
discussions and transactions with all insurers/providers, provided that we shall not place
any insurance or vendor programs on behalf of the Client unless so authorized by the
Client.
Assist with documentation and other steps to obtain commitments for and implement
insurance policies and other services selected by the Client regarding its employee
benefits program upon the Client's instructions, it being understood that we will not
independently verify or authenticate information not originating from us necessary to
prepare proposals or underwriting submissions and other documents relied upon by
insurers/providers, and the Client shall be solely responsible for the accuracy and
completeness of such information and other documents furnished to us and/or
insurers/providers and shall sign any application for coverage. The Client understands
that the failure to provide all necessary information to an insurer, employee benefit
provider or third party vendor whether intentional or by error, could result in the
impairment or voiding of coverage or service.
^ Provide Client access to the national insurance marketplace and related services
marketplace and use our commercially reasonable efforts to place insurance policies
and other services selected by the Client regarding its employee benefit program on
behalf of the Client, if so instructed by the Client.
^ Act as a liaison between the Client and insurers/ providers for the lines of coverage and
services that we have placed or obtained on behalf of Client or for which Mercer is
named as the broker of record.
We may utilize the services of other intermediaries to assist in the marketing of the
Client's program (including brokers in the London and other markets), when in Mercer's
professional judgment those services are necessary or appropriate with disclosure to
Client. Such intermediaries may be Mercer affiliates. The compensation of such
intermediaries is not included in our compensation under this Agreement and will be paid
by insurers/providers out of paid premiums.
^ Follow up with insurance carriers/providers for timely issuance of policies and contracts.
^ Follow up with insurance carriers/providers with respect to the payment or return
premiums.
H&B Service Schedule 0202c1n.doc
® Review policies and contracts for accuracy and conformity to specifications provided by
Client and the related negotiated coverages.
® Assist the Client in connection with issues relating to interpretation of insurance
policies/contracts placed by us.
® Provide information/coverage summaries for all new coverages and updates on changes
to existing coverages.
H&B Service Schedule 0202c1n.doc
Bois Harris
Consultant
MERCER
225 North 9th Street, Suite d10
Boise, ID 83702
248 338 6457 f"ax 208 338 6475
lois.J.Morr~~mercer.com
www.mercer.com
gecem ber 14, 2010
IlVilliam Nary
City Attorney & NR Director
33 East Broadway Ave
Meridian ID 83642
Dear Bill,
Subject: Engagement Letter Agreement
We are delighted to have the opportunity to continue to work with City of Meridian (uyou" or
"Clien#"}. The purpose of this letter of engagement ("Agreement"} is to set forth the terms
governing the services provided to you ("Services") by Mercer's operating companies,
Mercer (US}Inc., Mercer Investment Consulting, Inc. andlor Mercer Health & Benef~s LLC
(in each case, solely wi#h respect to the services it provides to you, ("Mercer" ar "we)).
Statement of Vllarl~
Each statement of work (uSOW'} attached hereto must specify at a minimum: (1) our
respective responsibilities with respect #o the Services; (2) the information and data we will
need in order to perform the Services; (3}any time constraints on the performance of the
Services; and (4) the compensation we will receive for performing the Services. To the
extent a SSW has been delivered to and accepted by you prior to the execution of this
Agreement, such SC}W shall be subject to the terms of this Agreement. For purposes of this
Agreement, the term "Agreement" shall include any SOWs.
Terms and Conditions Governing Engagement
~urperformance of the 5ervlces {whether provided pursuant to a wrltfen SOW or notj
are subject to the foilowing terms:
9. Payment Terms:
A. We will perform the Services in consideration of your payment of our compensation.
Qur 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. In addition to our Compensation, we will also bil! monthly far
our reasonable expenses, You wiff be responsible far any sales, value added taxes
t~nsulting, Outsourrint~. lnve~tments.
Seivica pravide~ by Doer MeeNtt & B~n~r~ LlC
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December 10 2410
or similar taxes related to the performance or receipt of the Services, including t ose
taxes assessed by authorities subsequent to payment for the Services.
B. Invoices are due and payable within thirty (30}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
X90} days from the date of the invoice, we may either suspend the provision of the
Services until payment is receded, or terminate this Agreement and~or any SOW
with immediate effect.
C. If we become involved (whether or not as a party) in a dispute (including audits or
investigations) between you and a third party (including. a governmental entity}, or if
we are asked to preserve records relating to the Services ar this Agreement,
including where Mercer is requested to preserve documents, electronically stored
information, back-up tapes or other media beyond its standard recycling or retention
protocol, beyond the scope of Services described in the applicable SO1N, these
additional services will be documented in a SOVv, if no SOW or other afire®ment is
reached on these additional services, you agree to pay us at our then current
standard rates for all our time spent, and will reimburse us far all reasonable
expenses incurred by us, in connection with such dispute or such documentation
preservation request. We will reimburse such payments in the event and to the
extent such dispute is finally determined by a court to have resulted primarily from
our negligence, conduct in bad faith or fraud.
~, Instruc~ons; RrovisiQn of Information and Assistance:
You will provide ail necessary and reasonably requested information, direction and
cooperation to enable us to provide the Services, and any direction (whether verbal or
written} shall be effective if contained expressly in the applicable SOW or if received
(whether verbally or in writing) from a person known to us or reasonably believed by us
to be authorized to act on your behalf, You agree that we shall use all information and
data supplied by you or on your behalf w~hout independently verifying the accuracy,
completeness or timeliness of it, We will not be responsible far 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, We will be entitled to charge
you in respect of any additional work carried out as a result.
3, Don~dential lnforrnation; Data:
A. Each of us is likely to disclose information (pDisclosing Party") to the other
("Receiving Party") from time to time in the course of the provision of the Services,
which is marked or designated as confidential or proprietary at or prior to disclosure
or which would appear to a reasonably prudent person to be confidential andlor
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December 10, 2014
proprietary in nature ("Confidential information"}. The Receiving Party will not
disclose such Confidential Information to any person other than in connection with
the provision of the Services ar as otherwise provided for in this Agreement. This
restriction does not apply to information that (i}the Receiving Party must disclose by
law or legal process, (ii} is either already in the public domain or enters the public
domain through no fault of the Receiving Party, (~i~} Es available to the Receiving
Party from a third par#y who, to the Receiving Party's knowledge, is not under any
non-disclosure obligation to the disclosing Party, ar (iv} is independently developed
by or for the Receiving Party without reference to any Confidential Information of the
Disclosing Party.
B. Notwithstanding Section 3(A}, you agree that we will be entitled to disclose
information, including Confidential Information, relating to the Services ar you to
regulators having jurisdiction over our business. You also agree that, notwithstanding
any other provision in this Agreement, we may include the identities of those persons
who are identified by you as contact persons far you and information about the terms
of this Agreement, the Services and the Compensation in our intemai client
management, financial and conflict checking databases.
C. You hereby grant us a perpetual, non-exclusive, royalty-free license to copy, modify
and use any information and data supplied by you or on your behalf so that we may
create analytical trend data (in anonymous form} and in order to improve the quality
of our advice to our clients. We will not disclose any information in a manner that
allows particular clients or individuals to be identified. Notwithstanding the foregoing,
you agree that your name may appear in a list of participating organizations for
reports containing such analytical trend data.
D. our respective obligations under Section 3(A}shall survive for a period of five (5}
years from the date of termination of this Agreemen# or far such longer period as is
required bylaw, 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.
~. Notwithstanding anything to the contrary in this Agreement, but subject to the terms
and conditions of Section 3, we may (i} retain copies of Confidential Information that
is required to be retained by law or regulation, (iii retain copies of our work product
that contain Confidential 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 deriva#ive works in an archival format (e.g. tape
backups}, which may not be returned or destroyed. Uve may retain your information
in paper or imaged format and we may destroy paper copies if we retain digital
images thereof.
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December 10, 2010
4. Personallnformation:
Each of us and our respective Affiliates (as defined below will comply with our
res active obli ativns arising fi om data protection and privacy laws in effect from time to
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time to the extent applicable to this Agreement and the Services, This includes, without
limitation, (i}the obligation, if any, of you or your Afl'tfiates, to obtain any rewired
consents) in respect of the transfer of information to us by you ar any third party relating
to an identified or identifiable individual that is subject to applicable data protection,
rivacy or other similar laws ("Personal Information"}, (ii}any obligation with respect to
p
the creation or collection of additional Persona! Information by us, and (~~~} 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.
Subject to Section 3{C}, any use or processing by us of Persona! Information supplied by
or on your behalf in connection with the Services shall be done solely on your behalf. We
shall handle such Personal information in accordance with your reasonable instructions
as ma be provided from time to time in the applicable SOW or as reasonably necessary
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for the purpose of providing the Services and shall not handle such Personal Information
in a manner inconsistent with the terms of this Agreement. We also confirm that we have
taken appropriate technical and organixatianal measures intended to prevent the
unauthorized or unlawful processing of Personal Information and the accidental loss or
destruction of, or damage ta, Personal Information. Fvr purposes of this Agreement,
"Affiliates" means, with respect to either party, any entity directly or indirectly controlling,
controlled by ar under common control with such party.
5. Ownership and Use of Work; Intellectual Property:
A. AI! materials prepared by us specifically and exclusively for you pursuant to this
Agreement (the "Work"} shall be owned exclusively by you, Notwithstanding anything
to the con#rary set forth in this Agreement, 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
owned or possessed by us before the commencement of, or developed or acquired
by us during or after, the performance of the Services, including without limitation, all
systems, software, specifications, documentation and o#her 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 nonrexclusive, non-transferable right to use such
Intellectual Property sotely for purposes of utilizing the Work internally in accordance
with the terms of this Agreement.
6. Unless we provide our prior written consent, you will not use, in a manner other than
as mutually contemplated when we were first retained by you to perform the
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December ~ 0, 204 0
applicable Services, or disclose to any third party, other than your attorneys,
accountants or financial advisors with a need to know, any Work ar Intellectual
Property or other material supplied by us under this Agreement, and you shall be
responsible for, 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 indemnify, defend and hold us and our Affiliates
harmless in respect of any Loss has defined in Section 7) incurred by us as a result of
your breach a# this obligation or any modifications made by any person other than us
to the Work, Intellectual Property or other work product provided to you by us.
6, Dispute Resolution;
A. Before commencing any action or proceeding with respect to any dispute between us
arising out of or relating to this Agreement, the parties shall first attempt to settle the
dispute through consultation and negotiation in good faith and in a spirit of mutual
cooperation. If the dispute is not resolved within five (5) business days, either of us
may elect to escalate the resolution of such dispute by submitting the dispute in
wrking to senior executives from each of us who will promptly meet and confer in an
effort to resolve the dispute. Each party will identify such senior executive by notice
to the other party, and each party may change its senior executive at any time
#hereafter by notice. Any mutually agreed decisions of the senior executives will be
final and binding on both parties, In the event the senior executives are .unable to
resolve any dispute within thirty ~3g) days after submission to them, either party may
then re#er such dispute to mediation by a mutually acceptable mediator to be chosen
by both parties within farty~flvQ X45}days after written notice by either party
demanding mediation, Neither party may unreasonably withhold, delay or condition
consent to the selection of a mediator, All communications and discussions in
furtherance of #his paragraph shall be treated as confidential settlement negotiations
that are not subject to disclosure to any third party. The costs of the mediator shall be
shared equally, but each party shall pay its own attorney's fees.
8. Any dispute that is not resolved within six (6) months of the date of the initial demand
far mediation by one of the parties may then be submitted to a court of competent
jurisdiction. Nothing in this Section 6 will prevent either of us from resorting to judicial
proceedings at any time if interim relief from a court is necessary to prevent sertaus
and irreparable injury or damage to that party or to others.
C. EXCEPT TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW, ANY CLAIM,
ACTION OR PROCEEDING AGAINST A PARTY OR ANY OF ITS AFFILIATES
1NILL BE BARRED UNLESS THE OTHER PARTY INITIATES THE DISPUTE
RESOLUTION PROCEDURES SET FORTH IN THIS SECTION 6 WITI~iIN ONE
YEAR OF FIRST pISCOVERINC THE ACT, ERROR OR OM1SSlON THAT IS THE
BASIS FOR SUCH CLAIM,
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December 10, 2010
7, Limitation of Liability:
A, The aggregate liability of Mercer our Affiliates and any officer, director or employee of
ours and our Affiliates ("Mercer Parties"7 to you, your Affiliates, your officers,
directors or employees ar those of your Affiliates and any third party (including any
benefit plan, its fiduciaries or any plan sponsor} far any and all Losses arising out of
or relating to the provision of Services by any of the Mercer Parties shall not exceed
the greater of one times the Compensation for the Services giving rise to such toss
and $100,000. Mercer shall have no liability for the acts or omissions of any third
party (other than our subcontractors).
B. In no event shall either party ar its Affiliates be liable in connection with this
Agreement or the Services for any loss of profit or incidental, consequential, special,
indirect, punitive ar similar damages, The provisions of this Section ?shall apply to
the fullest extent permitted bylaw. Nothing in this Section 7 limiting the liability of a
party shall apply to any liability that has been finally determined by a court to have
been caused by the fraud of such party,
C, For purposes of this Agreement "Loss" means damages, claims, liabilities, losses,
awards, judgments, penalties, interest, casts and expenses, including reasonable
attorneys' fees, whether arising in tort, contract or otherwise. Far 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,
Q. Each of the parses 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 7.
8. Unfores~aen Events:
Neither party shall be liable for delays or failures in performance of obligations under this
Agreement, other than failure to make payments hereunder when due, resulting from
events beyond its reasonable control, including without limitation uacts of hod,"fire,
flood, riots, new laws which prevent the carrying out of the Services, the results of
terrorist activity, failures of third party suppliers, and electronic and other power failures.
9, duration and ~'ermination of this Agreement:
This Agreement will continue until terminated as provided in this Section, except as
provided otherwise in a S~JIN. This Agreement and any SOUV may be terminated (i7 by
®ither party 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 nonpayment of
invoices by you as provided under Section 1. After the termination of this Agreement,
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December 10 2010
Sections 3, 4, 5, 6, 7, 4 and 10 will survive in full force and effect. Any termination o this
Agreement shall not relieve you or your Affiliates of their obligations to pay for Services
rendered and expenses incurred by us or our Affiliates up to and including the effective
date of such termination, and such termination may require you to pay termination fees
#o the extent provided in a SOW. Notwithstanding the foregoing, to the extent that the
parties agree that Mercer 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 su~rlve until such Services are completed or the parties
agree that the Services shall no longer be provided,
10, Additional Terms:
A. Terms Incorporated by deference -The terms set forth in a SOW shall be deemed
incorporated by reference into this Agreement for purposes of that SOW,
S. NotFces • Any notice that is to be given ay one party to the other under this
A reement will be given in writing and delivered to, 225 N. 9~ Street, Suite 410,
9
Boise, ID 83702, with a copy to the legal Department, Mercer,116~ Avenue of the
Americas, New York, New York 14036 if to Mercer or 33 E. Broadway Ave, Meridian,
ID 83fi~2 if to Client, or any other address specified by notice subsequently by one
party to the other, A notice will be effective upon receipt.
C. No Third Party Beneficiaries -Neither this Agreement nor the provision of the
Services is intended to confer any right or benefit 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.
D. No Publicity -You agree not to refer to us or attribute any information to us in the
press, for adver#ising or promotional purposes, or for the purpose of informing or
influencing any other party, including the investment community, without our prior
written consent. We agree not to refer to you in the press ar for promotional purposes
without your prior written consent, provided #hat we may include your name in our
representative client listing and as provided in Section 3~C~.
E. Waiver • The failure by either party to insist upon strict performance of any provision
of this Agreement shall in noway constitute a waiver of rights under this Agreement,
at law or in equity.
F, iNAIV~'d aF Jf1dY TRIAL -EACH PARTY, ON BEHALF OF ITSELF AND ITS
AFFILIATES, TO 1'HE FULLEST EXTENT PERMITTED 6Y LAW, KNOWINGLY,
VOLUNTARI~.Y, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY SERVICES PROVIDED BY MERCER
OR ITS AFFILIATES. THE WAIVER APPLIES TO ANY ACTION OR LEGAL
PROCEEDING, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
EACH PARTY AGREES NOT TO INCLUDE ANY EMPLOYEE, OFFICER,
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December 10, 2010
DIRECTOR OR TRUSTEE OF TFiE OTHER AS A PARTY IN ANY ACTION,
PROCEEDING 4R COUNTERG~.AIM RELATING TO SUCH DISPUTE,
G. 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,
H. ~n#tre Agreemen#, Amendment Assignment Subconfrac#ing • This Agreement
including any SOW and any schedules or exhibits attached hereunder} merges and
supersedes all prior or contemporaneous understandings, agreements, negotiations
and discussions, whether aral or written, between the parties concerning the
Services and constitutes the entire agreement between the parties with regard to the
Services. The parties have not relied upon any promises, representations,
warranties, agreements, covenants or undertakings, other than those expressly set
forth in this Agreement. Except with respect to a change in address for notices, this
Agreement shall not be amended except by a written document executed by both of
us. 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 S4W
specifically amends a term contained herein. Neither of us may assign this
Agreement without the prior written consent of the other, except that we may assign
this Agreement to an Affiliate with reasonable prior written notice to you. We may
subcontract with any of our Affiliates upon reasonable prior written notice to you, and
we may subcontract with third parties with your prior written consent, which consent
shat! not be unreasonably withheld, conditioned ar delayed.
I. Governing Law and Jurfsdic#ian • Unless otherwise provided in a SOW, this
Agreement and all SOWS issued hereunder will be governed by, and interpreted in
accordance with, the law of the State of Idaho and will be subject to the exclusive
jurisdiction of the courts located in the State of Idaho.
J. Severabfl~r - It is the intent of the parties that the provisions of this Agreement shall
be enforced to the fullest extent permitted by applicable law. To the extent that the
terms se# forth in this Agreement or any word, phrase, clause or sentence is found to
be illegal ar unenforceable for any reason, such word, phrase, clause ar sentence
shall be modified deleted or interpreted in such a manner so as to afford the party for
whose benefit it was intended the fullest benefit commensurate with making this
Agreement as modified, enforceable and the balance of this Agreement shall not be
affected thereby, the balance being construed as severable and independent.
K. Advice an Legs! Matters • We are not engaged in the practice of law and the
Services provided hereunder, which may include commenting on legal issues or
drafting documents, do not constitute and are not a substitute for legal advice.
Accordingly, we recommend that you secure the advice of competent legal counsel
with respect #o any legal matters related to the Services or otherwise.