LICENSE AND SERVICES AGREEMENT
This LICENSE AND SERVICES AGREEMENT by and between Randall-Reilly, LLC, a Delaware limited liability company (“Randall-Reilly”) and the customer (“Customer”) as identified in the Sales Contract, together with all Exhibits, Appendices and Schedules, whether currently referenced herein, referenced or attached to the Sales Contract, or later added by amendment, (collectively referred to as this “Agreement”) constitute the entire agreement between Randall-Reilly and Customer and fully supersede, replace and terminate (and neither party shall be subject to any covenants or have any remaining rights or obligations to the other party with respect to) any other agreements or understandings between the parties with respect to the matters and Products set forth in the Sales Contract and any representations made by or materials provided by Randall-Reilly, regardless of any contrary provision in any such agreements or understandings. By signing the Sales Contract, Customer acknowledges and agrees that it has read, understood and agrees to be bound by the terms and conditions of this Agreement. Capitalized terms used herein have the meanings set forth in Appendix 1 hereto. Randall-Reilly reserves the right to revise, amend, or modify these Terms and Conditions at any time and in any manner. Your continued use of the product and services provided by Randall-Reilly after such changes are implemented constitutes your acknowledgement and acceptance of such changes.
GENERAL TERMS AND CONDITIONS
1 PRODUCTS; ACCESS
1.1 Products; Construction. Subject to the terms and conditions of this Agreement and to the extent mutually agreed upon and described in detail in the Sales Contract, Randall-Reilly agrees to provide Customer with certain limited, non- exclusive rights to use those Products specifically set forth in the Sales Contract. At any time and from time to time, Randall-Reilly may, in its reasonable discretion, unilaterally change the specific features or functionality of any or all Products. The terms under which Customer may use the Products are as set forth in this Agreement. In the event of a conflict between the terms of the Sales Contract, any Product Exhibit and the License and Services Agreement, the terms of the Exhibit applicable to the given Product shall control, followed by the License and Services
1.2 Authorized Users; Seat Licenses. Customer may designate the specific Authorized Users to be provided access to the applicable Products. The Product access and use rights of each Authorized User shall be governed by the license type, as set forth in detail in the Sales Contract (each, a “Seat License”), allocated by Customer to such Authorized User. The total number of Authorized Users, by type, shall not exceed the number of such type of Seat Licenses purchased by Customer. If Customer purchases additional Seat Licenses during the Term, any such Seat Licenses shall be subject to this Agreement, including any appropriate adjustment of the Fees to reflect such purchase. Customer may, in its reasonable discretion, permanently reassign, remove or replace the Authorized Users associated with one or more Seat Licenses; provided that no Seat License may be shared among individuals or allocated to more than one individual.
1.3 Access Codes. Each Authorized User shall create a unique access code (each, an “Access Code”) for use solely by such Authorized User to access and use the Products through the applicable Portal in accordance with the type of Seat License allocated by Customer to such Authorized User. Customer will, and will cause each of the Authorized Users and Covered Entities to, (a) use commercially reasonable efforts to keep each Access Code confidential and to prevent the use of any Access Code other than by Authorized Users and (b) notify Randall-Reilly promptly of any identified unauthorized access or use of any Access Code.
1.4 Access Portals. During the Term, and subject to the access limitations of the applicable Seat Licenses set forth in the Sales Contract, Randall-Reilly will provide the Authorized Users with electronic access to the applicable Products through a combination of one or more Randall-Reilly websites (each, a “Site”) or mobile device applications (each, an “App”) selected by Randall-Reilly or otherwise through a mutually-agreed method (collectively, with the Sites and the Apps, the “Portals”). The applicable Site or App Terms and Conditions as set forth therein shall apply to any use of such Site or App. Customer agrees not to create any link to any Site without the prior express written consent of Randall-Reilly (which may be withheld in Randall-Reilly’s sole discretion). Customer accepts each Portal where is, as is and as The Portals may each be unavailable from time to time for routine or other maintenance, security, or other purposes in Randall-Reilly’s sole discretion.
1.5 Permitted Uses. Customer shall, and shall cause each Authorized User to, only use the Products in accordance with (a) the terms and provisions of this Agreement, including any use restrictions set forth in the Sales Contract and applicable Exhibits, (b) all applicable federal, state, local and international laws, statutes, rules and regulations, and any contractual commitments of Customer or of any other Covered Entities and (c) with respect to any marketing or other commercial communications, in strict compliance with the Direct Marketing Association (‘DMA’) E-Mail Delivery Best Practices guidelines, the US federal CAN-SPAM Act, as amended, the Canada Anti-Spam Law (CASL) and other applicable laws and regulations regarding the delivery of commercial and/or bulk email, and the US federal Telephone Consumer Protection Act (TCPA), as amended, and any other applicable Do Not Call, Do Not Mail, and similar Do Not Solicit regulations.
1.6 Ownership. Customer expressly acknowledges that, as between Randall-Reilly and Customer or any other Covered Entity, Randall-Reilly owns all worldwide Intellectual Property Rights to (including design and look and feel of) the Products and the Portals, subject only to the licenses and use rights specifically granted in this Agreement.
1.7 Open-Source Licenses. Customer acknowledges and agrees that one or more Products may include certain Open-Source Components licensed under applicable open- source licenses (each, an “Open-Source License”). Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of such Open-Source License(s).
2 FEES AND TAXES
2.1 Fees. All subscription fees, license fees, report fees and any other fees or charges arising under this Agreement (collectively, the“Fees”) are exclusive of all federal, state or local excise, sales, use, property and other taxes (other than taxes imposed solely on or for Randall-Reilly’s corporate franchise or net income) now or hereafter levied or imposed in connection with any other service or transaction contemplated by this Agreement (collectively, the “Taxes”). Customer agrees to pay the Fees in accordance with the terms of this Agreement and any invoices sent by Randall-Reilly for additional services or products requested by any Covered Entity or Authorized User. For any and all Fees not paid on or before the applicable due date, Customer agrees to pay as an additional late payment charge the lesser of one and one- half percent (1.5%) per month or the maximum late payment charge permitted by law. Customer also agrees to pay all expenses of collection, including reasonable attorney’s fees, incurred by Randall-Reilly in collecting delinquent Fees. Monthly Fees are fully earned and non-refundable at the beginning of each month of the Term, and all other Fees are fully earned and non-refundable when due. The general failure of any Product, Portal or any other system to provide the performance necessary for the compilation of or access to the Products shall not be a basis for the failure of Customer to make any payment of any Fees and no Fee shall be subject to offset by Customer for any reason. Fees may be increased by Randall-Reilly upon the expiration of the Initial Term.
2.2 Taxes. In addition to the Fees payable under this Agreement, Customer shall pay all Taxes which are applicable to performance under this Agreement. Customer shall also indemnify and hold Randall-Reilly harmless from any encumbrance, fine, penalty or other expense which Randall-Reilly may incur as a result of Customer’s failure to pay such
3.1 Definition. “Confidential Information” means: (a) all Products, (b) any items specified in an Exhibit as Confidential Information, (c) any business or technical information of Randall-Reilly or Customer that is disclosed to the other party (whether in writing, electronically, orally or through visual inspection); and (d) the specific terms and pricing set forth in this Agreement. Confidential Information shall include, without limitation, information compiled and stored in databases, third party reports prepared on behalf of the disclosing party, customer and vendor information or data, pricing or other financial information, marketing plans, business plans, manuals, tooling, prototypes, sketches, specifications, samples, computer software (source and object codes), techniques, inventions, discoveries, know-how and trade secrets and any document, data, database or computer software that incorporate any portion of the Confidential Information, whether or not marked as “confidential.”
3.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
3.3 Use and Disclosure Restrictions. Randall-Reilly shall take commercially reasonable efforts to safeguard and secure any Confidential Information that Customer uploads to Randall-Reilly through any Product interface and, without the express consent of Customer, will not incorporate any such information into any of Randall- Reilly’s databases or otherwise access, copy, use or disclose such information for any purpose other than in connection with Randall-Reilly’s performance under this Agreement. Neither party may use the other party’s Confidential Information except as contemplated in this Agreement or as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors.
4.1 Warranty Disclaimer. To the extent that records and information comprising all or any part of any Product are obtained from public records and third party sources, Randall-Reilly performs numerous procedures to enhance the information received from such sources. Notwithstanding the foregoing, Randall-Reilly cannot ensure the completeness or accuracy of the information it obtains or the fitness of such information for a particular purpose. Accordingly, Customer acknowledges and agrees that EACH OF THE PRODUCTS AND ALL REPORTING, INFORMATION OR OTHER CONTENT PROVIDED HEREUNDER IS PROVIDED “AS-IS”, “WHERE-IS” AND AS AVAILABLE, AND RANDALL-REILLY ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, INACCURACIES OR OMISSIONS THEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN SECTIONS 4.1 AND 4.2, RANDALL-REILLY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONTENT OF ANY PRODUCT, OR THE AVAILABILITY OF ANY PORTAL OR ANY REPORTING TOOL, AND RANDALL-REILLY HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER REQUIREMENTS, ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, OR OF FREEDOM FROM INTERRUPTION, VIRUS OR OTHER DISABLING ROUTINE, TITLE, QUIET ENJOYMENT, DATA ACCURACY, ERROR, OMISSION, SYSTEM OR PORTAL ACCESS, INTEGRATION OR INFORMATIONAL
5 INDEMNIFICATION; LIMITATION OF LIABILITY
5.1 Indemnification by Customer. Customer agrees to indemnify, defend and hold harmless Randall-Reilly from any and all Damages arising, directly or indirectly, out of any breach by Customer, any Covered Entity or any Authorized User of any representation, warranty or covenant set forth in this Agreement, including the terms of the licenses granted hereunder.
5.2 Indemnification by Randall-Reilly. Randall-Reilly agrees to indemnify, defend and hold harmless Customer against any Damages arising, directly or indirectly, out of a claim by any third party of infringement of its U.S. Intellectual Property Rights, in each case to the extent attributable to the use or display by Customer of any Product or Portal (other than any Third-Party Materials contained therein), provided that Randall-Reilly shall have no liability for any Damages to the extent that such Damages have arisen due to (a) the combination or integration of such Product or Portal or any of Randall-Reilly’s other services, solutions, information or technology with services, solutions, information or technology not provided by Randall-Reilly, (b) use, reproduction, distribution, display or disclosure of such product other than in accordance with the terms of this Agreement, (c) the failure of Customer or any Covered Entity to implement and use any maintenance releases or other revisions, corrections or modifications reasonably made available by Randall-Reilly prior to such infringement or unauthorized use, (d) the modification of the Product by or at the direction of Customer, any Covered Entity or any Authorized User or use or distribution thereof in a manner not contemplated by this Agreement or (e) the fraud or willful misconduct of Customer, any Covered Entity or any Authorized User. In the event that any Product or Portal, or any data or information used in the compilation or preparation thereof becomes the subject of an actual or threatened infringement-related claim or if Randall-Reilly reasonably believes that any Product is likely to become subject to an infringement claim or a claim of breach of or noncompliance with applicable law, then Randall-Reilly shall use commercially reasonable efforts to (x)procure for Customer and its permitted assigns the right to use such Product in accordance with the provisions of this Agreement or (y) replace or modify the applicable Product so that it becomes non-infringing and in compliance with applicable law. In the event that, after using commercially reasonable efforts, Randall-Reilly is unable to obtain either of the above two results, then Randall-Reilly may terminate this Agreement, whereupon Randall-Reilly shall provide a refund to Customer of a pro-rated portion of any prepaid, unearned Fees paid by Customer, based on the unexpired period of the then-current Term that remained as of the date of such termination. The provisions of this Section 5.2 constitute the sole and exclusive remedy of Customer, and the sole and exclusive obligation of Randall-Reilly, relating to a claim of infringement or alleged infringement of any Intellectual Property
5.3 Damages Limitation. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RANDALL-REILLY BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY DAMAGES RESULTING FROM LOSS OR INTERRUPTION OF BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, EVEN IF RANDALL-REILLY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH CUSTOMER ACKNOWLEDGES THAT THE FEES ARE BASED IN PART UPON THESE LIMITATIONS. Without limiting the foregoing, Randall-Reilly shall not be liable for any loss or damage arising from, in whole or in part, or related to, any act or omission by Customer, including, but not limited to, (a) the use of any Product or other deliverable provided hereunder in combination with any third party services or products and/or (b) any breach of this Agreement.
5.4 Liability Limitation. EXCEPT FOR OBLIGATIONS ARISING FROM RANDALL-REILLY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 5.2, RANDALL-REILLY’S TOTAL LIABILITY TO CUSTOMER UNDER OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNTS ACTUALLY PAID BY CUSTOMER TO RANDALL-REILLY HEREUNDER DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF DETERMINATION. THE FOREGOING LIMITATIONS OF THIS SECTION 5.4 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6 TERM AND TERMINATION
6.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will continue for the period set forth in the Sales Contract (such initial period being referred to herein as the “Initial Term”), unless earlier terminated as set forth herein. After the Initial Term, the Term shall automatically renew for successive 30-day periods (each a “Renewal Term”), unless either party gives notice to the other of non-renewal at least thirty (30) days prior to the expiration of the Initial Term (or the applicable Renewal Term, as the case may be).
6.2 Termination/Suspension for Breach. In its sole discretion, Randall-Reilly may temporarily suspend any or all licenses granted hereunder, and its other performance under this Agreement or terminate this Agreement immediately if:
- 6.2.1 Customer fails to make any payment of an invoice from Randall-Reilly when due;
- 6.2.2 Customer or any Authorized User breaches Section 3 of this Agreement; or
- 6.2.3Customer, any Covered Entity or any Authorized User breaches any other term of this Agreement or any of Randall-Reilly’s related procedures and fails to cure any such breach within fourteen (14) days of notice thereof by Randall-Reilly to Customer.
6.3 Effect of Suspension/Termination. Upon any termination or suspension of this Agreement, (a) all licenses granted by Randall-Reilly hereunder shall terminate, (b) Randall-Reilly shall discontinue access to and delivery of each Product, (c) Customer shall pay Randall-Reilly for all Fees incurred up to the date of any such suspension or termination and (d) Customer shall promptly discontinue all of its uses of any and all of the Products, and all records included therein (and any portions thereof) and promptly destroy all of the applicable Products and all copies and portions thereof, in all forms and types of media, in its possession or under its control, including any such items provided to its employees, agents or subcontractors, and shall, upon request from Randall-Reilly, confirm such destruction in writing to Randall-Reilly. Additionally, for any termination during the Initial Term (whether for breach or otherwise), Customer shall remit to Randall-Reilly an early-termination fee, in an amount equal to the product of (i) the monthly fee provided in the Sales Contract and (ii) the number of remaining months in the Initial Term. Suspension and termination are not exclusive remedies and the exercise by Randall-Reilly of any remedy under this Agreement will be without prejudice to any other remedies it may have by law or otherwise.
6.4 Survival. The rights and obligations of the parties contained in Section 1.6 and Sections 2 through 7 will survive any suspension or termination of this
7.1 Injunctive Relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 1.6 or 3 would cause irreparable harm to Randall-Reilly, the extent of which would be difficult to ascertain. Accordingly, Customer agrees that, in addition to any other remedies to which Randall-Reilly may be legally entitled, Randall-Reilly may seek immediate injunctive relief without the necessity to post a bond therefore in the event of a breach or threatened breach of such sections by Customer, any Covered Entity or any of the employees or contractors thereof.
7.2 Compliance Audits. Randall-Reilly shall have the absolute right, during the Term and for up to one (1) year after any termination of this Agreement, to audit and inspect all of systems, books, records and other materials of the Customer and any other Covered Entity that are or may be relevant or relate to compliance with the terms of this Agreement, and shall have access to the officers and employees involved with access, use and distribution of the Products (each as applicable), during normal business hours and, where possible, upon advance notice. Randall-Reilly will bear its own costs of any requested audit, unless Customer, any Authorized User or any Covered Entity is shown to have failed to honor use limitations or other obligations undertaken pursuant to this Agreement, in which event the cost and expenses of such audit shall be borne by Customer.
7.3 Publicity. Except as mutually agreed by the parties hereto, no publicity of the terms or existence of this Agreement shall occur unless agreed upon inwriting.
7.4 Assignment. Neither party may assign this Agreement or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other and any such purported assignment or delegation shall be void. Notwithstanding the foregoing, Randall-Reilly may assign this Agreement to any of its Affiliates or in connection with the sale or other transfer of all or substantially all of the assets of Randall-Reilly or its Equipment Data Associates division or a transfer of a controlling interest in Randall-Reilly (by merger or otherwise). Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
7.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to its choice of law principles.
7.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
7.7 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other
7.8 Force Majeure. Except with respect to obligations to make payments hereunder, neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
7.9 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services or by certified mail and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Sales Contract or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
7.10 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written
APPENDIX 1 DEFINITIONS
Each of the following terms is defined in the Section of the License and Services Agreement set forth opposite such term:
“Affiliate” means with respect to any Person, each of the Persons that directly or indirectly, through one or more intermediaries, owns or controls, is controlled by or is under common control with, such Person. For the purpose of this Agreement, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Users” has the meaning set forth in the Sales Contract, provided, however, that if such term is not separately defined in the Sales Contract, “Authorized Users” shall mean the direct employees of Customer. Without Randall-Reilly’s express written consent, “Authorized Users” shall exclude any third parties, including but not limited to Representatives of Customer.
“Covered Entities” means the Persons set forth in the Sales Contract as permitted to access the Products under this Agreement; provided, however, that if such term is not separately defined in the Sales Contract, “Covered Entities” shall solely mean Customer.
“Damages” means actions, causes of action, claims, demands, losses, expenses, damages and costs whatsoever (including, without limitation, reasonable attorney’s fees). “Effective Date” means the date set forth in the Sales Contract as the commencement date for access to the Products by Customer provided, however, that if no such date is provided in the Sales Contract, “Effective Date” shall mean the latest of the date of execution of the Sales Contract by Customer or by Randall-Reilly.
“Intellectual Property Rights” means copyrights, ancillary rights and sui generis rights (e.g., database rights) existing under applicable copyright laws, Trademarks, domain names, trade secrets, know-how, patent rights (including patent applications and disclosures), any goodwill associated with any of the foregoing and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Product(s)” means the products specified in the Sales Contract, any items defined as Products in any Exhibit hereto and any proprietary tools provided by Randall-Reilly for access to such products.
“Representative” means any contractor, vendor, representative or agent of such party.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Randall-Reilly, including any third-party: (a) documents, data, content or specifications; (b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“Trademarks” means any trademarks, service marks, trade names, word, name, symbol or device used by a Person to identify its goods or services, whether or not registered, and any right that may exist to obtain a registration with respect thereto.
LICENSED DATABASE ADDITIONAL TERMS AND CONDITIONS
1 INTEGRATION; DEFINED TERMS
1.1 Integration in License and Services Agreement. This Exhibit A is provided as a component of that certain License and Services Agreement between Randall-Reilly and the Customer. The General Terms and Conditions section of the License and Services Agreement are an integral part of, and shall apply to, this Exhibit A and any uses or disclosures of the Licensed Database (as defined below). For the purposes of the application of the General Terms and Conditions section of the License and Services Agreement, (a) the definition“Confidential Information” shall include the Licensed Database, (b) the provisions of Section 6.3(d) of the License and Services Agreement shall apply to the Licensed Database and (c) the provisions of Sections 6.2.2 and 7.1 of the License and Services Agreement shall apply to any breach or threatened breach of Section 2 of this Exhibit A. Any capitalized term used in this Exhibit but not defined herein shall have the meaning ascribed to such term in the General Terms and Conditions section of the License and Services
1.2 “Licensed Database” means the portion of Randall- Reilly’s proprietary and confidential data meeting the parameters described in the Sales Contract or as otherwise agreed in writing by Randall-Reilly from time to time, and includes any extract of all or any portion of a Licensed Database (including results of a report or data or prospect matching service) as well as any copies thereof and all versions, supplements, corrections, modifications and updates thereto. The Licensed Database is a Product for purposes of the License and Services
1.3 “Permitted Brands” means the brands and product lines of the Covered Entities existing as of the date of the Sales Contract or subsequently developed by a Covered Entity as a successor to any such brand or product line, but specifically excluding any brands or product lines acquired from third parties after the date of the Sales Contract, including, but not limited to, those acquired through mergers or acquisitions.
2 USE RESTRICTIONS
2.1 Grant of Limited License. Subject to the license limitations and other terms and conditions of the License and Services Agreement, Randall-Reilly hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sub licensable license, during the Term, to allow Authorized Users to use the Licensed Database, solely for Covered Entities’ internal uses, and, in each applicable case, solely with respect to the Permitted Brands (the “License”). All other uses of the Products are prohibited, and any such prohibited use shall constitute an immediate and material breach of this Agreement and any such prohibited use shall constitute an immediate and material breach of this Agreement.
2.2 Licensed Database Use Restrictions
- 2.2.1 Customer agrees to maintain the confidentiality and security of the Licensed Database and is expressly prohibited from sublicensing, selling, renting, leasing or otherwise distributing copies of all or any part of the Licensed Database, or permitting either direct or indirect access to or use of the Licensed Database.
- 2.2.2 Customer may reproduce the Licensed Database and the records included therein (and any portions thereof) solely for its own internal use by Authorized Users; and provided that all titles, Trademarks, copyright notices, and other proprietary notices of Randall-Reilly included therein, if any, are retained.
- 2.2.3 Without the express written consent of Randall-Reilly, Customer shall not permit the use of or disclose, divulge, transfer, deploy, provide, distribute or otherwise permit direct or indirect access to (collectively, “Disclose”) the Licensed Database or any portion thereof, to any third party, including any Representatives of Customer. Without limiting the foregoing, Customer shall not Disclose or otherwise utilize the Licensed Database in connection with any digital marketing platform or campaign, digital marketing agency service, list matching service or other similar arrangement, in each case involving any third party, including but not limited to a Representative of Customer.
- 2.2.4 In the event of an acquisition of a brand or product line from a third party, Customer must obtain a separate license to use or share the Licensed Database with or for such acquired brands or product lines.
- 2.2.5 Customer shall be and remain fully responsible to Randall-Reilly for any unauthorized disclosure or use of the Licensed Database (and any portions thereof) by its Authorized Users.
Without limiting the warranty provisions set forth in Section 4.2 of the General Terms and Conditions section of the License and Services Agreement, Randall-Reilly does not compare any telephone or facsimile numbers included in any Licensed Database to any federal or state do-not-call or similar registries.
PRIORITY PROSPECTS ADDITIONAL TERMS AND CONDITIONS
1 INTEGRATION; DEFINED TERMS
1.1 Integration in License and Services Agreement. This Exhibit B is provided as a component of that certain License and Services Agreement between Randall-Reilly and the Customer. The General Terms and Conditions section of the Agreement are an integral part of, and shall apply to, this Exhibit B and any uses of the Licensed Software (as defined below). For the purposes of the application of the General Terms and Conditions section of the Agreement, (a) the definition“Confidential Information” shall include the Licensed Software, the Licensed Database, each Priority Prospects Traffic Report and the Page View Information (each as defined below),
(b) the provisions of Section 6.3(d) of the Agreement shall apply to the Licensed Software and the Licensed Database and (c) the provisions of Sections 6.2.2 and 7.1 of the Agreement shall apply to any breach or threatened breach of Section 4 of this Exhibit B. Any capitalized term used in this Exhibit but not defined herein shall have the meaning ascribed to such term in the General Terms and Conditions section of the Agreement.
1.2 “Designated Site(s)” means those certain individual internet domain sites, measured by individual uniform resource locators (URLs), as identified and operated by Customer pursuant to the provisions of Section 4.3 of these Priority Prospects Additional Terms and Conditions.
1.3 “Documentation” means any and all manuals, instructions and other documents and materials that Randall- Reilly provides or makes available to Customer in any form or medium which describe the functionality, components, features or requirements of any Licensed Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.4 “Licensed Database” has the meaning set forth in Exhibit A to the Agreement. The terms of Exhibit A to the Agreement shall apply to any and all uses or disclosures of the Licensed Database.
1.5 “Licensed Software” means certain Page View Information tracking software provided by Randall-Reilly to Customer for installation on the Designated Sites. The Licensed Software is a Product for purposes of the Agreement.
1.6 “Maintenance Release” means any update, upgrade, release or other adaptation or modification of the Licensed Software, including any updated Documentation, that Randall-Reilly may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software.
1.7 “Page View Information” means online navigational information on visitors to the applicable Designated Site (including internet protocol (IP) addresses, browser type and version, domain names, referring/exit pages, operating system, date/time stamp, click stream data and anonymous statistical data regarding such visitor’s use of the applicable Designated Site), in each case as collected from the Designated Sites and delivered to Randall-Reilly through the operation of the Licensed Software.
1.8 “Page View Limit” means certain maximum number, as set forth in the Sales Contract, of individual Page View Information to be collected by Randall-Reilly through the Licensed Software in the applicable measurement period set forth in the Sales Contract (or if no such period is set forth the Sales Contract, per contract year).
2.1 Access to Priority Prospects Products. Subject to the terms and conditions of the Agreement, Randall-Reilly agrees to provide Customer with certain limited, non- exclusive rights to Customer-specific Priority Prospects Traffic Reports (as defined below) and associated matches from Randall-Reilly’s Licensed Database and the applicable proprietary reporting tools provided by Randall-Reilly related to each.
2.3 Use Restrictions. Customer acknowledges and agrees that (a) without the express written consent of Randall- Reilly, Customer may not directly or indirectly resell, license or otherwise Disclose (as defined in Exhibit A to the Agreement) to any third party any audience targeting segments or other audience demographic listings which either incorporate all or any portion of any Priority Prospects Traffic Report or were created, developed or modified through the direct or indirect use of any Priority Prospects Traffic Report and (b) each Priority Prospects Traffic Report contains excerpts of (or provides links to) information contained in the Licensed Database and that any access, display or use of any Priority Prospects Traffic Report is limited by, and providedsubject to the terms of, the License (as defined in Exhibit A to the Agreement) and that the Covered Entities are each expressly prohibited from sublicensing, selling, renting or leasing all or any part of the Priority Prospects Traffic Reports.
2.4 Maintenance Releases. During the Term, Randall- Reilly will provide Customer with all Maintenance Releases (including updated Documentation) that Randall- Reilly may, in its sole discretion, make generally available to the Licensed Software at no additional charge. All Maintenance Releases, on being provided by Randall- Reilly to Customer hereunder, are deemed Products subject to all applicable terms and conditions in the Agreement. Customer will install all Maintenance Releases as soon as practicable after receipt.
3 WEB TRAFFIC TRACKING AND REPORTING
3.1 Priority Prospects Traffic Reports; Data Subscription License. Subject to the terms of the Agreement and this Exhibit, during the Term, Randall-Reilly shall allow each Authorized User to utilize the applicable reporting tools to generate and access online reports containing certain aggregate and individual (enterprise-level) data and information on the type and nature of certain visitors generating Page View Information which match selected records in the Licensed Database, as well as the frequency of access of the Designated Site(s) by such visitors (each, a “Priority Prospects Traffic Report”). Customer acknowledges and agrees that each Priority Prospects Traffic Report contains excerpts of (or provides links to) information contained in the Licensed Database and that any access, display or use of any Priority Prospects Traffic Report is limited by, and provided subject to the terms of, each applicable Licensed Database license as set forth in Exhibit A the Agreement and that the Covered Entities are each expressly prohibited from sublicensing, selling, renting or leasing all or any part of the Priority Prospects Traffic
3.2 Priority Prospects Traffic Report Compilation. Randall-Reilly shall use commercially reasonable efforts to enable the applicable reporting tool to compile each Priority Prospects Traffic Report from (a) the Page View Information, up to the Page View Limit for the applicable period, and (b) the applicable portions of the Licensed Database as of the date of such Priority Prospects Traffic Report. Customer acknowledges that collection and processing of any Page View Information is subject to Customer’s proper installation and maintenance of the Licensed Software on the Designated Site(s), as described in detail in Section 4.2
4 OWNERSHIP OF WEB TRAFFIC CONTENT
4.1 Ownership. The Page View Information shall be and remain the sole and exclusive property of Customer. Customer hereby grants Randall-Reilly a non-exclusive right and license to (a) copy and use the Page View Information for the purposes of (i) compiling Priority Prospects Traffic Reports on behalf of Customer or any Authorized User pursuant to the terms of this Agreement, (ii) performing other services at the request of Customer or otherwise with Customer’s written consent and (iii) for such internal Randall-Reilly uses in connection with testing, monitoring, enhancing and evaluating the Licensed Software and other software and processes related to the compilation of Priority Prospects Traffic Reports and (b) copy, use and display Page View Information in its aggregate form, without any identification of Customer, any other Covered Entity, any Authorized User or individual Page View Information. Other than to the extent comprised of Page View Information, eachPriority Prospects Traffic Report is copyrighted material of Randall-Reilly or its contractors, with all rights reserved. Randall-Reilly shall be and remain the sole and exclusive owner of any
Intellectual Property Rights utilized in any Priority Prospects Traffic Report (including design and look and feel of the Priority Prospects Traffic Reports). Any Trademarks used or displayed in a Priority Prospects Traffic Report are registered or unregistered Trademarks of Randall-Reilly or its contractors. This Section 4.1 shall survive the termination of the applicable Sales Contract and suspension or termination of the Agreement.
4.2 Tracking Software License. During the Term, Customer shall install, use and run one (1) copy of the Licensed Software on any/each of the Designated Site(s) described in the Sales Contract. Subject to the terms and conditions of the Agreement and this Exhibit, and conditioned on the continued compliance therewith by Customer, Randall-Reilly hereby grants to Customer a non-exclusive, non-sublicensable and non-transferable, limited license to use the Licensed Software and Documentation solely for installation on and use with respect to Designated Sites for the sole purpose of delivery of Page View Information to Randall-Reilly pursuant to the terms of the Agreement. Customer may make one copy of the Licensed Software solely for testing, disaster recovery or archival purposes. Any copy of the Licensed Software made by Customer: (a) will remain the exclusive property of Randall-Reilly; (b) be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.
4.3 Selection of Designated Site(s); Association of Page View Information to Personally Identifiable Information. Prior to installation of the Licensed Software on any Designated Site, Customer shall provide written notice to Randall-Reilly of the name and uniform resource locator (URL) of such Designated Site(s), and promptly on adding, removing or replacing any Designated Site, any websites which are no longer Designated Sites. The total number of Designated Site(s) shall not exceed the number of Designated Sites set forth in the Sales Contract. Customer acknowledges and agrees that (a) the Licensed Software utilizes tracking text files commonly known as ‘cookies,’ ‘clear GIFs’, ‘tracking pixels’ or other similar tracking mechanisms to collect the Page View Information and (b) for the purposes of the compilation of each Priority Prospects Traffic Report, Randall-Reilly will merge and associate such Page View Information of the related visitors to the Designated Sites with certain personally identifiable information of such visitors contained in the Licensed Database. Therefore, Customer covenants and agrees that it will, during and for all periods during which the Licensed Software is engaged in the collection Page View Information from a Designated Website, obtain and comply with all applicable site visitor consents and policies necessary to permit the lawful collection, use and association of Page View Information contemplated under this Agreement.
4.4 Licensed Software Use Restrictions. Except as the Agreement expressly permits, Customer shall not, and shall not permit any other Person to: (a) copy the Licensed Software, in whole or in part; (b) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of any Licensed Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (d) reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Licensed Software or Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any Trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Licensed Software or Documentation; (g) use the Licensed Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (h) use the Licensed Software for purposes of: (x) benchmarking or competitive analysis of the Licensed Software; (y) developing, using or providing a competing software product or service; or (z) any other purpose that is to Randall-Reilly’s detriment or commercial disadvantage; or (i) use the Licensed Software or Documentation in any manner or for any purpose or application not expressly permitted by this Agreement.
TRUCK HISTORY REPORT ADDITIONAL TERMS AND CONDITIONS
1 INTEGRATION; DEFINED TERMS
1.1 Integration in License and Services Agreement. This Exhibit C is provided as a component of that certain License and Services Agreement between Randall-Reilly and the Customer. The General Terms and Conditions section of the Agreement are an integral part of, and shall apply to, this Exhibit C and any uses or disclosures of the Truck History Reports (as defined below). For the purposes of the application of the General Terms and Conditions section of the Agreement, the provisions of Sections
6.2.2 and 7.1 of the Agreement shall apply to any breach or threatened breach of Section 2 of this Exhibit C. Any capitalized term used in this Exhibit but not defined herein shall have the meaning ascribed to such term in the General Terms and Conditions section of the Agreement.
1.2 “Truck History Report” means a report containing certain data and information on motor vehicles, compiled by vehicle identification number (VIN) generated by Customer or a Covered Entity using certain reporting tools to which Randall-Reilly grants such Customer access pursuant to the terms of the Agreement, this Exhibit and the Sales Contract. Each such reporting tool and each Truck History Report is a Product for purposes of the Agreement.
2 ACCESS; USE; OWNERSHIP
2.1 Access. Customer may request additional access credentials for individuals other than Authorized Users for the purpose of granting access to generate Truck History Reports (each, a “THR User”) and Randall-Reilly shall promptly grant such access using unique, non-transferable limited access credentials (“THR User Codes”). Such THR User Codes shall be used exclusively by Covered Entities and access to the Truck History Reports, whether by THR Users or Authorized Users, shall be solely for the purpose of accessing and distribution internally within the Covered Entities and externally to direct customers of the Covered Entities.
2.2 Truck History Report Fees. The Sales Contract sets forth the maximum number of Truck History Reports available to be generated by the Covered Entities in a given contract period, without generating additional Fees. Once the Covered Entities have generated (‘run’) the maximum number of Truck History Reports included for the applicable period under such Sales Contract, then Randall-Reilly may provide the opportunity for each THR User and each Authorized User to purchase additional Truck History Reports for Customer’s account. Customer will be charged additional Fees for each such purchased Truck History Report, based on the fee amounts provided by Randall-Reilly to the applicable THR User or Authorized User at the point of sale. Customer hereby acknowledges that it is solely responsible for payment of any Fees arising from any Truck History Reports generated through the use of any of THR User Codes or Authorized User Codes, including uses by other Covered Entities and unauthorized and fraudulent uses of the THR User Codes or Authorized User Codes.
2.3 Truck History Report Use Restrictions. Customer shall, and shall cause any Covered Entities, THR Users and Authorized Users to comply with each of the following:
(a) only publish, display or distribute any Truck History Report (i) in its entirety, including all disclaimers, titles, Trademarks, copyright notices, and other proprietary notices included therein, (ii) subject to the limitation set forth in Section 2.3(c) below, to officers and employees of Covered Entities and to direct customers of Covered Entities and (iii) in accordance with all applicable laws; (b) not modify, create derivative works from or otherwise exploit any of the Trademarks, logos, text or graphic images included in a Truck History Report (collectively, the “Truck History Report Content”) nor sell, resell, license, rent, lease, reproduce, duplicate, copy or otherwise exploit any THR User Code or Authorized User Code or any Truck History Report Content; and (c) not (i) publish, display or otherwise distribute or provide access to
any Truck History Report for compensation or consideration of any kind (including, but not limited to, selling, reselling, licensing, renting or leasing), or (ii) distribute or provide access to any Truck History Report or Truck History Report Content in a service bureau, out-sourcing, data processing or similar arrangement.
2.4 Truck History Report Compilation; Content. Randall-Reilly shall use commercially reasonable efforts to compile each Truck History Report from the information and datasets received and processed by Randall-Reilly as of the date of such Truck History Report, as provided by certain third-party data suppliers and data sources selected by Randall-Reilly, including the National Motor Vehicle Title Information System(“NMVTIS”). Customer acknowledges that additional information about the motor vehicle set forth in a Truck History Report, including problems, may not have been reported to or processed accurately by Randall-Reilly’s selected third-party suppliers and sources or properly transmitted to Randall-Reilly, and that Randall-Reilly does not (a) provide information or data to NMVTIS or any of its other third-party suppliers or sources, (b) verify, test, audit, approve or otherwise review the motor vehicle information or data it receives or (c) have access to every potential source of information or data regarding a motor vehicle. Randall-Reilly encourages Customer to refer each of its customers to the RigDig™ Report Disclaimer included in each Truck History Report.
2.5 NMVTIS Information. The portions of a Truck History Report which were compiled from information received from NMVTIS are designated in such Truck History Report with the NMVTIS logo. Customer hereby acknowledges that the Consumer Access Product Disclaimer set forth on Attachment A to this Exhibit applies to any such NMVTIS information.
2.6 Ownership. Each Truck History Report and all Truck History Report Content are copyrighted materials of Randall-Reilly or its contractors, with all rights reserved, or by the original creator. Any Trademarks used or displayed in a Truck History Report are registered or unregistered Trademarks of Randall-Reilly or its contractors. Randall-Reilly and its contractors own the Truck History Report Content and retain any Intellectual Property Rights utilized in any Truck History Report or in any Truck History Report Content. This Section 2.6 shall survive termination of the Sales Contract and suspension or termination of the Agreement.
EXHIBIT C – ATTACHMENT A
NMVTIS Consumer Access Product Disclaimer Revised April 2015
The National Motor Vehicle Title Information System (NMVTIS) is an electronic system that contains information on certain automobiles titled in the United States. NMVTIS is intended to serve as a reliable source of title and brand history for automobiles, but it does not contain detailed information regarding a vehicle’s repair history.
All states, insurance companies, and junk and salvage yards are required by federal law to regularly report information to NMVTIS. However, NMVTIS does not contain information on all motor vehicles in the United States because some states are not yet providing their vehicle data to the system. Currently, the data provided to NMVTIS by states is provided in a variety of time frames; while some states report and update NMVTIS data in “real-time” (as title transactions occur), other states send updates less frequently, such as once every 24 hours or within a period of days.
Information on previous, significant vehicle damage may not be included in the system if the vehicle was never determined by an insurance company (or other appropriate entity) to be a “total loss” or branded by a state titling agency. Conversely, an insurance carrier may be required to report a “total loss” even if the vehicle’s titling-state has not determined the vehicle to be “salvage” or “junk.”
A vehicle history report is NOT a substitute for an independent vehicle inspection. Before making a decision to purchase a vehicle, consumers are strongly encouraged to also obtain an independent vehicle inspection to ensure the vehicle does not have hidden damage. The Approved NMVTIS Data Providers (look for the NMVTIS logo) can include vehicle condition data from sources other than NMVTIS.
NMVTIS data INCLUDES (as available by those entities required to report to the System):
- Information from participating state motor vehicle titling
- Information on automobiles, buses, trucks, motorcycles, recreational vehicles, motor homes, and tractors. NMVTIS may not currently include commercial vehicles if those vehicles are not included in a state’s primary database for title records (in some states, those vehicles are managed by a separate state agency), although these records may be added at a later time.
- Information on “brands” applied to vehicles provided by participating state motor vehicle titling agencies. Brand types and definitions vary by state, but may provide useful information about the condition or prior use of the vehicle.
- Most recent odometer reading in the state’s title record.
- Information from insurance companies, and auto recyclers, including junk and salvage yards, that is required by law to be reported to the system, beginning March 31, 2009. This information will include if the vehicle was determined to be a “total loss” by an insurance
- Information from junk and salvage yards receiving a “cash for clunker” vehicle traded-in under the Consumer Assistance to Recycle and Save Act of 2009 (CARS) Program.
- Consumers are advised to visit vehiclehistory.govfor details on how to interpret the information in the system and understand the meaning of various labels applied to vehicles by the participating state motor vehicle titling agencies.