Capitalized terms used in this TOS shall have the respective meanings ascribed to them as provided in Section 1 below.
This TOS governs the license and delivery of Services to, and the access and use of such Services by, each Client.
Each Order Form, when Accepted by Randall-Reilly, automatically shall be deemed to incorporate into such Order Form (and be subject to) all of the terms and conditions of this TOS, except for any provisions of this TOS which are specifically and expressly (with express reference to applicable section numbers) excluded or modified in a particular Order Form (solely as to such Order Form, “Excluded Provisions”). Each mutually agreed Order Form, together with this TOS, shall be deemed to constitute a single, separate agreement between Randall-Reilly and the Client which is party to such Order Form (the “Agreement”), provided that in the event of a specific conflict between any provision of this TOS and any provision of a particular Order Form, such TOS provision shall control in all cases except with respect to such Order Form’s Excluded Provisions (in which case such Order Form provision shall control, but solely as between Randall-Reilly and such Client and solely with respect to the Services provided under such Order Form).
Randall-Reilly rejects any terms or conditions offered by Customer at any time in any fashion that are in addition to or inconsistent with this TOS or the Agreement, whether or not such terms or conditions materially alter this TOS or the Agreement, and regardless of provision of the Services or acceptance of payment.
The following terms, as used in this TOS, shall have the respective meanings ascribed to them in this Section 1. Other capitalized terms used in this TOS shall have the meanings ascribed to them in the body of this TOS. As used in the Agreement, the word “including” shall be deemed to mean “including but not limited to” unless expressly set forth to the contrary. The captions and headings used in this TOS are for convenience only and shall not affect the interpretation of any provision of the Agreement. Section references contained in this TOS shall be references to the corresponding sections of this TOS unless otherwise specified.
“Acceptance” shall mean, as between Randall-Reilly and Client with respect to any Services, acceptance by Randall-Reilly of the Order Form for such Services, as evidenced by Randall-Reilly’s initial delivery to Client of access to Services; provided that “Accept” shall have the correlative meaning.
“Annual Subscription” shall have the meaning set forth in Section 3.1.
“Billing Period” is, with respect to any Services ordered pursuant to a Self-Checkout Order Form, the interval of time between each recurring billing date. The Billing Period will correspond to the Term.
“Change of Control” shall mean, with respect to any entity, a transfer (whether in a single transaction or a series of related transactions) of more than 50% of the stock or other equity interests in an entity, or the right to direct the management of such entity.
“Client” shall mean each Entity which is a client, as specified in one or more Order Forms submitted by such Entity client and Accepted by Randall-Reilly, or, if no such Entity is identified in the Order Form, the Entity on behalf of which the individual submitting an Order Form purports to act.
“Client End User” shall have the meaning set forth in Section 2.2.7.
“Client End User Agreement” shall mean the terms and conditions of the Agreement and the Additional Client End User Terms, all of which are incorporated herein by this reference.
“Client Parties” means Client, its Licensed Affiliates (if any), and its and their respective officers, directors, employees, owners, consultants and agents.
“Commencement Date” shall mean, in respect of any Services under a (i) General Order Form, the earlier of (a) the date such General Order Form was Accepted by Randall-Reilly, or (b) the “Start Date” (or similarly described date) identified in the Order Form; or (ii) Self-Checkout Order Form, the first date of the initial Billing Period.
“Community Features” shall mean interactive communities and other chat and forum discussion areas (which may offer “Q&A,” “Ask An Expert” and similar features) and any other areas or functionality which permit Client End Users to post, submit, upload, transmit or otherwise make available comments, questions, answers, opinions, reviews, content, links, data, information (including profile information), communications and/or other material.
“Confidential Information” shall mean any information obtained under or in connection with the Agreement.
“Entity” shall mean a corporation, partnership, limited liability company, sole proprietorship or other form of business entity.
“Fees” shall mean all fees and charges payable by Client under the Agreement.
“Force Majeure” shall mean any acts of civil or military authority, national emergencies, labor difficulties, fire, flood, earthquake or other catastrophe, acts of God, terrorism, sabotage, insurrection, war (declared or undeclared) or other military action, riots, epidemics, acts (or delays or failures to act) of any governmental authority (de jure or de facto), embargoes, failure of transportation or power supply, performance (or lack thereof) of third parties, or any other reasonably unforeseeable circumstances or other causes beyond a Party’s reasonable control.
“General Order Form” shall mean a printed or digital order form, insertion order, purchase order, license, subscription agreement, or similar document executed by both Parties, in each case which indicates the Services purchased and to be made available to such Client.
“Initial Term” shall mean, in respect of any Services under a (i) General Order Form, such period as is identified as the “Initial Term” (or similarly described initial license period) identified in the applicable General Order Form, or, if no such period is set forth in the General Order Form, a period of one year from the Commencement Date for such Services; or (ii) a Self-Checkout Order Form, the initial Billing Period. In each case, the Initial Term shall be subject to early termination or renewal as provided in Section 3.
“Intellectual Property Rights” shall mean all rights of every nature relating to intellectual property, including all (i) United States and foreign patents and patent applications now or hereafter filed (including continuations, continuations-in-part, divisionals, reissues, reexaminations and foreign counterparts thereof), and all rights with respect thereto; (ii) inventions, utility models, and industrial design rights; (iii) rights in Confidential Information, including trade secret rights, rights in know-how and other proprietary rights; (iv) database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them); (v) copyrights and renewals thereof and other rights relating to literary or artistic works and data compilations, including without limitation author’s and moral rights and rights of publicity and privacy with respect to such works or compilations; (vi) trade and service names and trademark, service mark and trade dress rights; and (vii) all rights or forms of protection of a similar nature or having similar or equivalent effect to any of the foregoing which may exist anywhere in the world on the Commencement Date or in the future.
“Licensed Affiliate” shall mean any Entity which now or, subject to Section 11, in the future directly or indirectly controls, is controlled by, or is under common control with Client.
“Monthly Subscription” shall have the meaning set forth in Section 3.1.
“Order Form” shall mean either a (i) General Order Form or (ii) a Self-Checkout Order Form.
“Parties” (and each, individually, a “Party”) shall mean Randall-Reilly and Client.
“PD Brand” shall mean Price Digests or any other related brand, sub-brand or trade name (including those referred to in the definition of “Services” herein).
“Randall-Reilly Parties” shall mean Randall-Reilly, its affiliates, and its and their respective
officers, directors, employees, owners, consultants, agents, suppliers, licensors and assigns.
“Self-Checkout Order Form” shall mean a PD Brand online order submission, online registration form, or order form (however it may be titled) submitted by Client and Accepted by Randall-Reilly.
“Services” shall mean the content (including all data and information) and services provided by Randall-Reilly via the pages of any PD Brand websites, including those located at URLs pricedigests.com, autoredbook.com, abos.com, tractorbluebook.com, powersportbluebook.com, truckbluebook.com, rvvaluesonline.com, or any of their subdomains, or via any mobile application associated with any of the same or any other PD Brand, which content and services are specified in the Order Form, and which shall be governed by the applicable Order Form and this TOS. For avoidance of doubt, the Services exclude any print or other offline products which may be sold via the Services for physical delivery to Client.
“Services Enhancement” shall mean any change, addition or enhancement to the Services, if applicable, which may be required or optional.
“Services Update” shall mean the ongoing updating of the Services from time to time by Randall-Reilly in its ordinary course of business for the purpose of keeping the Services current, if applicable.
“Software” shall mean any software provided by Randall-Reilly or any of its affiliates in connection with the Services, as specified in an Order Form or otherwise.
“Term” shall have the meaning set forth in Section 3.1.
“Territory” shall mean the United States of America, unless otherwise specified in the applicable Order Form.
“Third Party Supplier” shall mean any third party from time to time providing data or services to Randall-Reilly which in any way relate to the Services (or any portion thereof).
2.1 License and Use of the Services
Subject to Client’s compliance with the terms and conditions of the Agreement, including Client’s payment and confidentiality obligations, Randall-Reilly hereby grants to Client a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable (except to Licensed Affiliates) right and license, during the Term, to access and use the Services, in all cases solely (a) in accordance with the applicable Order Form and all applicable laws, rules and regulations now or hereafter in effect, and (b) for the internal business purposes of Licensee (and the Licensed Affiliates, if any) and not for resale, redistribution, or any other use of any kind by or for the benefit of any other person or entity, and (c) solely in the Territory, and (d) if any format(s) and/or platform(s) (e.g., web vs. mobile application) is set forth in the Order Form, solely in such format(s) and/or platform(s), and (e) subject to any additional restrictions that may be set forth in such Order Form. Client agrees not to, nor to permit the Licensed Affiliates (if any) to, directly or indirectly: (i) resell, distribute or permit the use of any Services (or any content or materials of any kind provided as part of the Services) by any party other than Client and the Licensed Affiliates (if any), (ii) access or use the Services (or any portion thereof) (A) by any means other than through an interface provided by Randall-Reilly for such purpose or (B) in violation of the foregoing clauses (a) through (d), or (iii) access or use the Services for internal business purposes in any manner that would otherwise require obtaining a separate license from Randall-Reilly for any other Randall-Reilly product or service, unless Licensee has obtained such separate license or such access or use is expressly permitted in the applicable Order Form. Client shall not, and shall not permit any Licensed Affiliate or any other person or entity to, decipher, adapt, translate, disassemble, decompile, reverse engineer, reengineer, or otherwise seek to duplicate the performance or characteristics of, the Software, the other Services, or any portion of either thereof, or use any robot, spider, search/retrieval application, or other manual or automatic device or technique to extract, “scrape,” collect, retrieve, index, “data mine,” copy, catalog, download or otherwise reproduce, store or distribute information or content available on the Services (including information about other individuals or companies using the Services or any portion thereof), or in any way reproduce or circumvent the navigational structure or presentation of the Services (or any portion thereof). Client agrees to cause all Licensed Affiliates (if any) and all Client End Users to comply fully with the Agreement and shall be fully responsible for the activities of each Licensed Affiliate and each Client End User and liable under the Agreement for any and all acts or omissions of any such Licensed Affiliate and any such Client End User which, if taken or made by Client, would breach any provision of the Agreement or otherwise subject Client to any liability in connection with this Agreement. Only the number of Client End Users indicated in the Order Form in connection with any reference to number of logins, accounts, subscriptions, users, or any similar phrase (“Logins”) may access and use the Services hereunder; each Login must be assigned to one individual employee of Client and/or a Licensed Affiliate only, and Logins may not be transferred or reassigned without Randall-Reilly’s prior written consent.
2.2 Provision of Services
2.2.1 Client shall bear any telecommunication and network costs and other charges related to its access or retrieval of the Services, any Services Updates and any Services Enhancements.
2.2.2 If Randall-Reilly changes the content, format, medium, or means of access to or delivery of the Service generally for its clients and customers, it may do so in the same manner for Client (in the case of any such change which is material, upon at least 30 days’ prior written notice). If such change would have a material adverse effect on Client’s then-current use of the Services, Client may request to terminate that portion of the Services affected by the change by written notice given to Randall-Reilly not less than two weeks prior to the effective date of the change, in which case Client will receive a prorated refund of any prepaid Fees for such portion of the Service. This Section 2.2.2 is not applicable to Monthly Subscriptions, in which case, Client may cancel any such subscription pursuant to Section 3.1.
2.2.3 Subject to Section 2.2.2, Randall-Reilly reserves the right in its absolute discretion to add, delete or modify all or any portion of the Services at any time in a manner substantially consistent with any such addition, deletion or modification applied to Randall-Reilly’s other clients and customers.
2.2.4 Client shall not, directly or indirectly: (i) use, or permit any third party to use, the Services in any way that infringes any Intellectual Property Rights in the Services; or (ii) use, or permit any third party to use, the Services for any unlawful or unauthorized purpose.
2.2.5 Client shall maintain adequate security precautions to prevent unauthorized access to or distribution of the Services by any means or channels, consistent with then-current industry technology standards, including the use of secure servers, protective firewalls and a user authentication system. Upon Randall-Reilly’s request, Client shall provide information reasonably related to the security measures it undertakes in connection with its receipt, access to and use of the Services and any failure thereof or security breach related thereto.
2.2.6 Client shall promptly notify Randall-Reilly of any suspected inaccuracies in or omissions from any of the Services of which Client is or becomes aware.
2.2.7 In furtherance of Section 2.1, Client acknowledges and agrees that (i) Client’s exercise of the internal use license and rights provided for herein with respect to the Services at all times shall be limited to authorized individual users employed by Client and/or each Licensed Affiliate, if any (each such user, a “Client End User”); (ii) as a condition to such exercise, each Client End User is deemed to acknowledge, accept, and agree to be bound by the Client End User Agreement; and (iii) Client at all times shall be responsible for ensuring each Client End User’s compliance with the Client End User Agreement and liable for any and all non-compliance, breaches or violations of the Client End User Agreement by the Client End Users.
3. Term and Termination
3.1 The term of the Agreement between Randall-Reilly and Client shall commence on the Commencement Date and shall continue in effect for the duration of the Initial Term, plus any renewal periods hereunder or thereunder (together with the Initial Term, the “Term”), unless earlier terminated as provided herein. If Client has entered into a Self-Checkout Order Form, Client shall enroll in either a monthly recurring subscription plan (a “Monthly Subscription”) or an annual recurring subscription plan (an “Annual Subscription”) for the Services. If Client has enrolled in a Monthly Subscription or an Annual Subscription, the Term will continue and automatically renew for successive, additional periods equal to the expiring Term unless and until Client cancels such subscription in accordance with the immediately succeeding sentence or this Agreement is otherwise terminated pursuant to Section 3.2. If Client has enrolled in a Monthly Subscription or Annual Subscription, Client may cancel such subscription at any time by logging into Client’s account and following the cancellation process described therein, and, upon successful completion of such process, this Agreement will terminate immediately prior to the start date of the next Billing Period. If Client has entered into a General Order Form, unless otherwise specified in such General Order Form, the Term will continue and automatically renew for successive one-year periods from the anniversary of the Commencement Date, unless either Party notifies the other Party in writing of its decision not to extend the expiring Term at least ninety (90) days prior to such expiration.
3.2 Except as applicable pursuant to Section 3.3 (in which case Section 3.3 shall control), in the case of a material breach of the Agreement by a Party, the non-breaching Party may terminate the applicable Order Form(s) upon 30 days’ prior written notice unless such material breach has been cured within such 30-day period, and upon any such termination by Randall-Reilly under this Section 3.2, Randall-Reilly may suspend any or all of the Services without prejudice to any further right or remedy Randall-Reilly may have.
3.3 Either Party may terminate the applicable Order Form(s) immediately upon written notice to the other Party in the event that (i) the other Party has violated its obligations relating to confidentiality or Intellectual Property Rights hereunder or (ii) subject to applicable law, the other party makes any assignment for the benefit of its creditors, files a petition under the bankruptcy laws of any jurisdiction, has appointed a trustee or receiver for its property or business or is adjudicated bankrupt or insolvent. If Randall-Reilly gives or has the right to give notice under this Section 3.3, Randall-Reilly may suspend any or all of the Services without prejudice to any further right or remedy Randall-Reilly may have.
3.4 Expiration or earlier termination (either of the foregoing, “Termination”) of any Order Form(s), however arising, will not affect (i) any then-existing rights accrued or obligations arising on or before the date of Termination, (ii) the continuing operation of all Sections of this Agreement (and, if applicable, the affected Order Form(s)) which expressly survive Termination, or (iii) any Order Form(s) (and the application of this TOS thereto) as to which Termination has not occurred.
3.5 Upon Termination of any Order Form(s) (or any portion thereof), Client shall, unless otherwise instructed by Randall-Reilly: (i) promptly terminate all access to the Services pursuant to all affected Order Form(s) (or affected portion(s) thereof); (ii) not later than 30 days following such Termination, destroy, and remove from its storage and any and all systems, all versions and copies of any Randall-Reilly Property (as defined in Section 6.1) relating to same, including backup material and any data, information, content, or other materials downloaded, exported, or otherwise received by Client in connection with the Services as to which Termination has occurred (and in the event of Termination of all existing Order Forms, all Randall-Reilly Property), except, in each case, to the extent (and solely for so long as) Client is legally required to retain such information to comply with regulatory record-keeping requirements (in which case, for avoidance of doubt, all such Randall-Reilly Property shall remain subject to all confidentiality restrictions set forth in this TOS, and may only be used to the extent necessary for such record-keeping purposes); (iii) in the case of a Termination of any or all existing Order Forms, not later than 30 days following Termination, if so directed by Randall-Reilly, return or destroy all Confidential Information related to such Order Form(s), including all copies thereof and notes and other materials incorporating such Confidential Information, whether in tangible or electronic form; and (iv) certify to Randall-Reilly, in writing, the accomplishment of the foregoing clauses (i) through (iii), as applicable.
4. Warranties, Disclaimers, and Limitations of Liability
4.1 THE RANDALL-REILLY PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR USE (WHETHER OR NOT SUCH PURPOSE OR USE HAS BEEN DISCLOSED) AS TO THE SERVICES OR ANY COMPONENT THEREOF, INCLUDING THE INFORMATION, DATA, SOFTWARE, APPLICATIONS OR PRODUCTS CONTAINED THEREIN OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. THE RANDALL-REILLY PARTIES CANNOT, DO NOT AND WILL NOT GUARANTEE (AND CLIENT MAY NOT RELY UPON) THE ADEQUACY, ACCURACY, TIMELINESS, CORRECTNESS, COMPLETENESS, RELIABILITY OR SECURITY OF THE SERVICES OR ANY COMPONENT THEREOF, OR THAT THE SOFTWARE OR THE SERVER(S) ON WHICH THEY ARE HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, WILL MEET CLIENT’S REQUIREMENTS, OR CAN BE RELIED UPON IN ANY RESPECT. THE RANDALL-REILLY PARTIES SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY OF ANY KIND FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, MALFUNCTIONS, DELAYS OR FAILURES TO PROVIDE UPDATES IN OR WITH RESPECT TO THE SERVICES, THE COMPONENTS THEREOF OR ANY RESULTS OBTAINED THEREFROM. THE SERVICES (AND ALL COMPONENTS THEREOF) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CLIENT’S USE THEREOF AT ALL TIMES IS AND SHALL BE AT CLIENT’S OWN RISK.
4.2 NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL ANY OF THE RANDALL-REILLY PARTIES BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR INJURY CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE OR OMISSION IN PROCURING, COMPILING, CALCULATING, INTERPRETING, EDITING, WRITING, REPORTING, TRANSMITTING, OR DELIVERING ANY INFORMATION, DATA, OR OTHER CONTENT THROUGH THE SERVICES, OR FOR ANY DELAY OR INTERRUPTION IN CONNECTION THEREWITH. IN NO EVENT SHALL ANY OF THE RANDALL-REILLY PARTIES BE LIABLE IN ANY RESPECT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM, TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT OR SUCH OTHER PERSON OR ENTITY IN RELIANCE UPON THE SERVICES, IN WHOLE OR IN PART, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ANY OTHER FORM OF DAMAGES WHATSOEVER, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR ANY PORTION THEREOF, INCLUDING LIABILITY OR DAMAGES FOR LOST PROFITS, LOST TIME OR GOODWILL, TRADING LOSSES, DAMAGES RESULTING FROM INCONVENIENCE, LOSS OF DATA OR LOSS OF USE OF THE SERVICES (OR ANY PORTION THEREOF) OR ANY OTHER LIABILITY OR DAMAGES, WHETHER TANGIBLE OR INTANGIBLE, IN ANY WAY ARISING OUT OF OR CONNECTED WITH THE USE OF OR PERFORMANCE OF THE SERVICES, IN EVERY SUCH CASE EVEN IF ANY OF THE RANDALL-REILLY PARTIES HAS BEEN ADVISED OF (OR OTHERWISE MIGHT HAVE ANTICIPATED) THE POSSIBILITY OF SUCH DAMAGES. THE RANDALL-REILLY PARTIES SHALL NOT BE LIABLE (EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN SECTION 5.2) FOR ANY CLAIMS AGAINST CLIENT BY ANY THIRD PARTIES. EXCEPT PURSUANT TO INDEMNIFICATION OBLIGATIONS UNDER SECTION 5.2 OR IN THE CASES OF FRAUD OR WILLFUL MISCONDUCT BY RANDALL-REILLY, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF THE RANDALL-REILLY PARTIES FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THE SERVICES, ANY OTHER RANDALL-REILLY PROPERTY AND/OR THE AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, EXCEED, IN THE AGGREGATE, THE FEES PAID BY CLIENT TO RANDALL-REILLY UNDER THE APPLICABLE ORDER FORM THAT GAVE RISE TO SUCH CLAIM FOR THE SIX MONTHS PRIOR TO THE TIME SUCH LIABILITY AROSE. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES MAY BE BROUGHT BY CLIENT MORE THAN ONE YEAR AFTER SUCH ACTION HAS ACCRUED.
4.3 CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE ANY FORM OF BUSINESS, FINANCIAL, LEGAL, REGULATORY OR OTHER ADVICE OF ANY KIND. CLIENT ACKNOWLEDGES AND AGREES THAT IT WILL BE SOLELY AND FULLY RESPONSIBLE FOR ALL BUSINESS DECISIONS THAT IT MAKES AND THAT THE USE OF THE SERVICES, AND ANY DECISIONS MADE IN RELIANCE UPON THE SERVICES, AT ALL TIMES ARE AND WILL BE MADE ENTIRELY AT CLIENT’S OWN RISK.
4.4 THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 4 ARE A MATERIAL PART OF THE BARGAIN. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT BE WILLING TO ENTER INTO THIS AGREEMENT WITHOUT SUCH PROVISIONS. EACH PARTY ACKNOWLEDGES AND AGREES THAT THESE PROVISIONS SHALL APPLY WHETHER OR NOT THE REMEDIES ALLOWED UNDER THIS AGREEMENT ARE DEEMED ADEQUATE AND WHETHER OR NOT SUCH REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
5.1 Client, at its sole cost and expense, shall indemnify, defend and hold harmless the Randall-Reilly Parties (or any of them) from and against any and all obligations, losses, damages, liabilities, penalties, costs and expenses (including administrative costs, investigatory costs, litigation and settlement costs and experts’, auditors’ and attorneys’ fees, expenses and disbursements) (collectively, “Losses”) incurred or suffered, directly or indirectly, as a result of any judgment, settlement, claim, demand, action, suit or proceeding (in each case, whether formal or informal) (each of the foregoing, a “Claim”) threatened or asserted against the Randall-Reilly Parties (or any of them) by a third party arising out of the use of any Services (or any portion thereof) by or on behalf of Client (or the Licensed Affiliates, if any), including such use by any and all Client End Users, or any data, information, service, report, analysis or publication derived therefrom, or any action, decision or determination taken or made based thereon, all of the foregoing including, but not limited to Losses that result solely or concurrently from the Randall-Reilly Parties’ alleged negligence except, in each of the foregoing cases in this Section 5.1, to the extent (but only to the extent) that any such Losses have resulted solely from the fraud or willful misconduct of Randall-Reilly or third-party actions which Randall-Reilly is obligated to defend or settle pursuant to Section 5.2. Client may not, without the prior written consent of Randall-Reilly, accept any settlement or compromise, or consent to any entry of judgment, with respect to any Claim that (a) subjects any Randall-Reilly Parties to injunctive or other equitable actions or orders, or (b) does not include as an unconditional term thereof the delivery by the claimant or plaintiff of a written release of the applicable Randall-Reilly Parties from all liability in respect of such Claim. Randall-Reilly shall have the right, at its own expense, to monitor the defense or settlement of such Claim through counsel of its own choosing.
5.2 Randall-Reilly, at its sole cost and expense, shall defend or settle any third-party action instituted against the Client Parties (or any of them), to the extent (but solely to the extent) that it is based upon a claim that the authorized use of the Services directly infringes upon any United States copyright, trademark rights or trade secret rights of such third party, and Randall-Reilly shall pay all damages attributed to such claim that are finally awarded against any Client Parties pursuant to a non-appealable order issued by a court of competent jurisdiction; provided that Randall-Reilly shall have sole authority to defend or settle any such claim. Randall-Reilly’s indemnification obligations pursuant to this Section 5.2 are further contingent upon (a) Client’s promptly notifying Randall-Reilly in writing of such action (provided that lack of prompt written notice shall not abrogate Randall-Reilly’s indemnification obligations unless Randall-Reilly is materially prejudiced thereby), (b) Client’s providing Randall-Reilly with all documentation, information and assistance (at Randall-Reilly’s expense), as requested by Randall-Reilly, that are necessary or appropriate to defend or settle such Claim; and (c) such Claim’s not arising out of the use of Services in a manner that failed to comply with the Agreement or was otherwise not intended hereby. If any such claim has occurred, or in Randall-Reilly’s opinion is likely to occur, Randall-Reilly also may, in its sole discretion and expense, either: (i) obtain for Client the right to continue using the Services at issue, or replace or modify the same, in any such case so that they may continue to be used in the manner contemplated by this Agreement; or (ii) if the foregoing alternatives are not reasonably practicable, as determined by Randall-Reilly in its sole discretion, terminate the Agreement or the applicable Order Form(s) and refund to Client a prorated portion of any prepaid Fees for such Services for the period that such Services are not available or usable. Randall-Reilly may not, without the prior written consent of Client, accept any settlement or compromise, or consent to any entry of judgment, with respect to any such claim that (A) subjects any Client Parties to injunctive or other equitable actions or orders, or (B) does not include as an unconditional term thereof the delivery by the claimant or plaintiff of a written release of the applicable Client Parties from all liability in respect of such claim. Client shall have the right, at its own expense, to monitor the defense or settlement of such claim through counsel of its own choosing. The Randall-Reilly Parties shall not be liable for any Losses or Claims against any Client Parties by any third parties except as specifically provided in this Section 5.2.
6. Ownership; Proprietary and Intellectual Property Rights
6.1 The Services consist of original, proprietary works of development and authorship and information created, developed, gathered, selected, analyzed, arranged, presented and delivered by Randall-Reilly with considerable expenditure of time, effort and money and by the application of methods of selection and judgment unique, original and proprietary to Randall-Reilly. Client acknowledges and agrees that, as between Client and Randall-Reilly, all right, title and interest in and to the Services, all Intellectual Property Rights therein and any and all derivations therefrom and improvements and enhancements thereto (all of the foregoing, collectively, the “Randall-Reilly Property”) are and at all times shall remain the sole and exclusive property of Randall-Reilly. Except and to the extent (but only to the extent) expressly and specifically granted to Client herein, any and all rights with respect to any of the Randall-Reilly Property are entirely and expressly reserved by Randall-Reilly. There are no implied licenses of any kind with respect to any of the Randall-Reilly Property. Without limiting the foregoing in any respect, as between Client and Randall-Reilly, Randall-Reilly has and retains all rights to market, offer, license, sell, distribute and otherwise exploit in any manner all or any portion of the Randall-Reilly Property, independently of the Agreement, in any manner that Randall-Reilly desires, and Randall-Reilly shall not be restricted in any manner from soliciting or contracting with any person, firm or entity to consummate any agreement or arrangement in connection therewith.
6.2 Client shall not divulge or disclose, or permit any of the other Client Parties to divulge or disclose, any aspect of the Randall-Reilly Property except as expressly permitted in the Agreement.
6.3 Randall-Reilly welcomes ideas, suggestions and feedback related to the Services (including, without limitation, the Test Services, as defined in Section 12) (“Services Feedback”). Provision of Services Feedback by Client is entirely voluntary. Client hereby assigns to Randall-Reilly all right, title and interest, including all Intellectual Property Rights, in and to such Services Feedback, any and all of which Randall-Reilly may use for its own business purposes in its sole and absolute discretion, without any payment or accounting to Client. Such Services Feedback is deemed part of Randall-Reilly’s Confidential Information hereunder. In addition, all content, data, and/or information submitted or otherwise communicated or made available to Randall-Reilly by or on behalf of Client in connection with the Services shall constitute “Posts” for purposes of the Additional Client End User Terms and, for avoidance of doubt, shall not constitute Confidential Information of or pertaining to Client.
6.4 Client shall not delete, obscure, or alter in any manner any of the proprietary information, copyright, trademark, or other attribution notices or legal disclaimer notices, if any, appearing on or with respect to any of the Services.
6.5 Client shall take commercially reasonable steps to protect the Randall-Reilly Property from unauthorized access, duplication, distribution, publishing, transmission, display, or other use. Client shall notify Randall-Reilly of any and all infringements or illegal uses of the Randall-Reilly Property that come to Client’s attention. Randall-Reilly shall have the right, but not the obligation, to prosecute and conduct all proceedings or actions involving the Randall-Reilly Property and to take any actions that it may deem proper or necessary for the protection of the same. Upon Randall-Reilly’s request, Client shall cooperate fully with Randall-Reilly in connection with any such actions.
6.6 Client acknowledges and agrees that Randall-Reilly will suffer irreparable injury and damage and cannot be reasonably or adequately compensated in monetary damages for the loss by Randall-Reilly of its benefits or rights under this Agreement as the result of a breach, default or violation by Client of Client’s obligations under this Agreement. Accordingly, Randall-Reilly shall be entitled, in addition to all other remedies which may be available to it (including monetary damages), to injunctive and other available equitable relief, without surety or bond, in any court of competent jurisdiction to prevent or otherwise restrain or terminate any actual or threatened breach, default or violation by Client of any provisions of the Agreement or to enforce any such provisions.
7. Confidential Information
7.1 Each Party shall preserve the Confidential Information of or pertaining to the other Party in strict confidence and will not disclose to any third party, or use for its own benefit or the benefit of any third party, any Confidential Information without the prior written consent of the other Party, except if required by law, regulation or judicial order, provided that, unless prohibited by applicable law, the Party disclosing Confidential Information under such circumstances shall give the other party reasonable notice and a reasonable opportunity to protect its interests in the Confidential Information prior to making such disclosure. Without limiting the foregoing, each Party shall maintain, at a minimum, the same precautions and standard of care to which a reasonable person in such business would use to safeguard Confidential Information of its own and its clients or suppliers. The Parties agree to keep the terms but not the existence of the Agreement confidential, except as otherwise provided in the Agreement.
7.2 Neither Party shall be liable for the disclosure of any Confidential Information that: (i) is in the public domain at the time of disclosure; (ii) was in the possession of or demonstrably known by a Party prior to its receipt from the other; (iii) is independently developed by a Party without access to or use of any Confidential Information provided by the other, as demonstrated conclusively by written evidence; or (iv) becomes known to a Party from a source other than the other Party without breach of the first Party’s obligations under the Agreement.
8. Third Party Suppliers
In the event that Randall-Reilly’s rights, titles, licenses, permissions or approvals from a Third Party Supplier pertaining to the Services are cancelled, terminated, rescinded or not renewed, Randall-Reilly may, upon written notice to Client, suspend or terminate Client’s rights to use the affected portions of the Services within the timeframe required by such Third Party Supplier. Such suspension or termination shall not constitute a breach by Randall-Reilly of any of its obligations hereunder but Randall-Reilly shall refund to Client a pro rata portion of any prepaid Fees for the affected Services for the period that such Services are not available or usable and will negotiate with Client in good faith to determine whether an adjustment in future payments owed by Client to Randall-Reilly to reflect such suspension or termination is warranted; provided that if Randall-Reilly and Client cannot mutually agree on such determination, then Client may terminate the affected portion of the Services by written notice given to Randall-Reilly within 30 days of the later to occur of (i) suspension or termination of the applicable Services, or (ii) termination of the Parties’ negotiations regarding a potential adjustment in fees.
9.1 If Client enters into a Self-Checkout Order Form:
Randall-Reilly reserves the right to change the Fees for Client’s subscription from time to time, effective as of the beginning of Client’s next Billing Period following the date of the change, but will give Client advance notice of any such change. Client will be required to provide its credit card (“Payment Method”) information to enroll in a Monthly Subscription or Annual Subscription. Client authorizes Randall-Reilly to charge Client’s Payment Method a periodic Fee on a recurring basis corresponding to the Term and any applicable taxes. Client is solely responsible for any and all Fees charged to its Payment Method. In the event of a failed attempt to charge Client’s Payment Method, Randall-Reilly reserves the right to retry billing Client’s Payment Method. In the event that Client updates its Payment Method to remedy a change in validity or expiration date, Randall-Reilly will automatically resume billing Client for its subscription to the Services. Randall-Reilly may suspend or cancel Client’s access to the Services if Randall-Reilly remains unable to successfully charge a valid Payment Method. Randall-Reilly also reserves the right to pursue any amounts Client fails to pay in connection with Client’s subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees and arbitration or court costs. As used in this Agreement, “billing” will indicate either a charge or debit, as applicable, against Client’s Payment Method. Randall-Reilly will automatically bill Client’s Payment Method on the Commencement Date and on the first date of each successive Billing Period thereafter. Where applicable, charges for one or more Services may be prorated for any partial month of service. If Client cancels its subscription, Client will continue to have access to the Services through the end of its current Billing Period. Except as otherwise expressly stated in this Agreement, the Fees are non-refundable and Client will not receive a credit or refund if it cancels its subscription or this Agreement is terminated, including for partially used periods of its subscription.
9.2 If Client enters into a General Order Form:
Client will pay all Fees within 30 days of the date of invoice. Randall-Reilly may charge interest at the rate of 1.5% per month on overdue Fees, accrued from the due date until the date payment is received. In addition, Randall-Reilly may also suspend delivery of the Services (or any portion thereof) for as long as any Fees remain overdue. Client will pay all sales and related taxes based on the Fees, exclusive of taxes based on Randall-Reilly’s income. Except as otherwise expressly stated in this Agreement, the Fees are non-refundable. Except as otherwise set forth in a General Order Form, all Fees with respect to any Service provided under such General Order Form are subject to change by Randall-Reilly once per year, effective as of the next anniversary of the Commencement Date, upon written notice by Randall-Reilly to Client (which notice requirement may be fulfilled by delivery of an invoice).
10. Audit Rights
During the term of this Agreement and for a period of five years thereafter, Client agrees to keep materially complete and accurate books, records and related documentation concerning the use of the Services for the most recently completed period of five years. Randall-Reilly is hereby granted the right, subject to the confidentiality provisions of this Agreement and not more than twice during any 12-month period during the term of this Agreement, to (i) audit and examine, upon reasonable prior written notice and during normal business hours, Client’s books and records and any and all computer equipment, devices, components, transmission equipment and software used by Client in connection with the installation, maintenance, accessing, delivery, transmission, reception, retrieval or use by Client of the Services, and (ii) observe, upon reasonable prior written notice and during normal business hours, the operations conducted by Client relating to the use of the Services. All such audits pursuant to the foregoing clauses (i) and (ii) shall be conducted at Randall-Reilly’s expense, unless an audit by Randall-Reilly reveals an underpayment by Client of more than 5% and/or a material variance in the use of the Services from the use contemplated by this Agreement, in which case Client shall be liable to Randall-Reilly for all reasonable audit expenses incurred by Randall-Reilly and Randall-Reilly shall have the right to conduct another audit and review pursuant to this Section 10 during the same 12-month period. Client shall also be liable for any unauthorized use or distribution of the Services (or any portion thereof) discovered during such audit. Client shall promptly pay to Randall-Reilly the amount of all underpayments of Fees identified in any audit, together with interest at the rate of 1.5% per month on any overdue Fees, accrued from the due date until the date payment is received.
11. Client Mergers, Acquisitions and Reorganizations
If any third party not covered by this Agreement as of the Commencement Date (an “Acquired Third Party”) becomes, as a result of a merger, acquisition or reorganization with Client, a subsidiary, business unit, division or other part of Client during the Term and thereby gains eligibility to use the Services under the Agreement, then both Parties agree to promptly and in good faith enter into a separate Order Form (or amend an existing Order Form) to cover such Acquired Third Party, including the payment of incremental Fees. If no reasonable agreement can be reached, the Acquired Third Party shall have no right or obligation to use the Services hereunder.
12. Test Services
12.1 From time to time, Client may desire to test and evaluate certain additional Services not already provided for in an existing Order Form. If Randall-Reilly offers testing of the relevant Services, Randall-Reilly is willing to provide a sample of such additional Services (the “Test Services“) to Client at no charge for a limited period of time (not to exceed 30 days), provided that:
(a) Client will use the Test Services in accordance with this TOS and furthermore solely for the purpose of evaluating the same, internally within Client’s own organization and not for redistribution to or use by any third party. Randall-Reilly, in its sole discretion and without further notice, may discontinue providing such Test Services at any time.
(b) The Test Services shall constitute Randall-Reilly Property hereunder, and the provisions of Sections 1, 2.2, 4, 5, 6, 7, 8, 10, 11, 12 and 13 of this Agreement shall apply to Client’s use of the Test Services. Upon Randall-Reilly’s request, and in any event after the expiration or termination of the test, Client shall cease all use of the Test Services, and purge the Test Services and any copies thereof from its computer system. Client shall return the Test Services (if delivered in a fixed medium), or supply a certificate of destruction thereof, upon Randall-Reilly’s request. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, Client may not use the results of any test based on the Test Services for redistribution to any third party, or for any actual use in any productive purpose.
12.2 Randall-Reilly will provide Test Services under cover of a letter referencing this Section 12. Any use of Services outside of the scope of this Section 12 or for a period beyond 30 days must be set forth on an appropriate Order Form, and is subject to incremental Fees as may be mutually agreed in writing by the Parties.
13.1 This TOS and all applicable Order Form(s) incorporating this TOS Agreement by reference constitute the entire understanding of the Parties with respect to the Services and supersede all prior or collateral discussions, proposals, agreements and understandings. No waiver or modification shall be valid or binding unless in writing and signed by the Party to be charged thereby. Client acknowledges that in executing and/or submitting the applicable Order Form(s) and thereby Accepting this TOS, it has not relied on any representation by Randall-Reilly or any other Randall-Reilly Parties, other than those representations expressly incorporated in this TOS, and further that it has had the time and opportunity to obtain the advice of legal counsel concerning the terms and conditions hereof. Client’s acceptance of future delivery of the Services shall constitute conclusive evidence of its agreement that the Services shall be subject to the terms and conditions of the Agreement.
13.2 GOVERNING LAW; JURISDICTION; JURY WAIVER. The Agreement, as well as all claims or disputes between the Parties, whether arising out of or relating to this Agreement, the Services, or alleged extracontractual facts prior to, during, or subsequent to this Agreement, all of the foregoing including claims based in tort, statute, contract, law, equity, or any legal theory whatsoever, shall be governed by, enforced, and construed in accordance with the laws of the State of Alabama, including its statutes of limitations, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. In any action between the Parties arising out of or relating to the Agreement or the Services, each of the Parties (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Circuit Court of Tuscaloosa County, Alabama or the United States District Court for the Northern District of Alabama, Western Division; (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 13.2; (c) waives any objection to laying venue in any such action or proceeding in such courts; and (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any Party. Each Party agrees not to commence any legal proceedings related hereto except in such courts. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY LITIGATION OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ALLEGED EXTRACONTRACTUAL FACTS PRIOR TO, DURING, OR SUBSEQUENT TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LITIGATION OR CONTROVERSY.
13.3 No assignment or transfer of a Party’s rights or obligations under the Agreement may be effectuated without the prior written consent of the other Party; provided, however, that with or without such consent, Randall-Reilly may assign the Agreement and any of its rights hereunder and thereunder to any affiliate of Randall-Reilly or, in the case of a merger, reorganization, acquisition, consolidation, or sale of all or substantially all of the stock or assets, directly or indirectly, of Randall-Reilly, to the purchaser or the surviving entity, as the case may be. Client acknowledges and agrees that (i) a transfer by operation of law or otherwise of Client’s interest in the Agreement and (ii) a Change of Control affecting Client shall be deemed to constitute an assignment by Client of Client’s rights, duties and obligations hereunder, requiring Randall-Reilly’s consent in accordance with the foregoing. Any attempted assignment by Client without Randall-Reilly’s consent in accordance with the foregoing provisions of this Section 13.3 shall be null and void and shall give rise to Randall-Reilly’s right to terminate the Agreement by written notice to Client. Subject to the foregoing, the Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
13.4 If any provision of the Agreement is declared invalid or unenforceable by any court of competent jurisdiction, then such provision shall be deemed automatically amended to the extent necessary to conform to the requirements for validity and enforceability as so declared at such time (while preserving its original intent) and, as so amended, shall be deemed a provision of the Agreement as though originally included therein. If the provision invalidated is of such nature that it cannot be so amended, the provision shall be replaced with another provision that is valid and enforceable and achieves the same objective and economic result as the invalidated or unenforceable provision. In any such case, the remaining provisions of the Agreement shall remain in full force and effect.
13.5 The provisions of Sections 1, 3.4, 3.5, 4, 5, 6, 7, 9, 10, 13, and 14 shall survive any termination or expiration of the Agreement.
13.6 In no event shall Randall-Reilly or its affiliates or their third-party suppliers be liable for damages or penalties to the extent that their performance hereunder is impaired or prevented as a result of events of Force Majeure, and in no event shall any delays in or failure of performance by any such parties be considered a breach of the Agreement to the extent resulting from events of Force Majeure.
13.7 (a) The Agreement may only be updated, revised, changed, modified, or amended (any of the foregoing, “Changed”) (i) in a writing which makes express reference to the Agreement (or the relevant Order Form(s), as the case may be), and is signed by a duly authorized representative of each Party, or (ii) as set forth in Section 9 or in Section 13.7(b). No other act, communication, representation, document, usage, custom or practice shall be deemed to modify or amend the Agreement (or any Order Form).
(b) Randall-Reilly may, in its sole discretion, Change this TOS at any time, and Client will be bound to such Changes, subject only to the following requirements: (i) in the event of a Change to this Agreement which has a materially adverse effect on Client’s rights and obligations under this Agreement, taken as a whole (any such Change, a “Material Change”), Randall-Reilly will provide notice to Client of such Material Change, which notice obligation may be fulfilled by Randall-Reilly’s posting a notice on its website for at least 30 days, stating that the Terms of Service have been updated (or words to a similar effect); and (ii) Client may, within 30 days of the date a Material Change became effective (as evidenced by the “Last updated” date at the end of the TOS), terminate the affected portion of this Agreement upon 30 days’ prior written notice to Randall-Reilly.
(c) No failure or delay on the part of either Party in the exercise of any right, power or remedy under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.
13.8 Nothing in the Agreement shall be deemed to create an agency, joint venture or partnership relationship between Client and Randall-Reilly. Neither Party shall have authority to act on behalf of or bind the other Party in any way.
13.9 Randall-Reilly may use (i) Client’s name and/or (ii) Client’s logo (in a form previously approved by Client), in each case to identify Client as a client or customer of Randall-Reilly for Randall-Reilly’s marketing and promotional purposes, including in any list of clients and customers on Randall-Reilly’s website(s), at any exhibition, trade show, or other event held by Randall-Reilly, in renewal forms to existing clients and customers, and in presentations and marketing materials to potential or existing clients, customers or business partners.
14. Special Terms Applicable to Downstream Users
14.1 In some circumstances, a Randall-Reilly customer, client, or end user (“Randall-Reilly Customer”) may enter into an agreement with Randall-Reilly whereby such Randall-Reilly Customer is permitted to distribute, display, or otherwise make available to its own customers, clients, or end users and/or customers, clients, or end users further downstream (all of the foregoing collectively, “Downstream Users”) certain content (including data and information) and/or services which are part of the Services (the “Redistributed Content”). This Section 14 applies to such Downstream Users only.
14.2 For each Downstream User, (a) the agreement(s) between such Downstream User and the Randall-Reilly Customer or third party providing access to the Redistributed Content (“Third-Party Licensor”) shall be deemed an “Order Form” for purposes of this TOS, (b) such Downstream User shall be deemed the “Client” for purposes of this TOS and the Downstream User’s individual employee users authorized to use the Redistributed Content shall be deemed “Client End Users” for purposes of this TOS, (c) the Redistributed Content shall be deemed the “Services” (and the sole Services provided to such Downstream User) for purposes of this TOS, and (d) in the penultimate sentence of Section 4.2, the phrase “THE FEES PAID BY CLIENT TO RANDALL-REILLY UNDER THE APPLICABLE ORDER FORM THAT GAVE RISE TO SUCH CLAIM FOR THE SIX MONTHS PRIOR TO THE TIME SUCH LIABILITY AROSE” is replaced by the phrase “THE FEES PAID BY DOWNSTREAM USER TO THIRD-PARTY LICENSOR AND ULTIMATELY PASSED THROUGH TO RANDALL-REILLY UNDER THE ORDER FORM THAT GAVE RISE TO SUCH CLAIM FOR THE SIX MONTHS PRIOR TO THE TIME SUCH LIABILITY AROSE.”
14.3 The following provisions of this TOS do not apply to Downstream Users: 3.1, 3.2, 9, 11, 13.9. Subject at all times to the obligations of the applicable Randall-Reilly Customer or other Third-Party Licensor to Randall-Reilly, relevant terms governing the subjects covered by these provisions may be set forth in the agreement between Downstream User and the applicable Third-Party Licensor.