Equipment Experts Terms and Conditions
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TERMS AND CONDITIONS

PREAMBLE
Rev. 5.27.20, Equipment Experts

These TERMS AND CONDITIONS by and between Randall-Reilly, LLC, a Delaware limited liability company (“Randall-Reilly”) and the customer as identified in the Sales Contract (“Customer”), along with the terms of the Sales Contract together with all Exhibits, Appendices and Schedules, whether currently referenced herein, attached to the Sales Contract, or later added by amendment, (collectively referred to as this “Agreement”) govern Customer’s subscription (“Subscription”) to any website (the “Site”) that includes a link to this Agreement., and/ or a Customer who uses the Site as a prospective seller of equipment (“Seller”). This Agreement constitutes the entire agreement between Randall-Reilly and Customer with respect to Customer’s Subscription and fully supersedes, replaces and terminates (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 Subscription set forth in the Sales Contract, and any previous representations made by or materials provided by Randall-Reilly. Customer acknowledges and agrees that it has read, understood, and agrees to be bound by the terms and conditions of this Agreement. Randall-Reilly reserves the right to deny or terminate access to the Site for any Customer who does not comply with the terms of this Agreement or who otherwise uses the Site in a manner deemed to be inappropriate by Randall-Reilly, in its sole discretion. In the event of a conflict between the terms of the Sales Contract and these Terms and Conditions, the terms of the Sales Contract shall control.

Customer acknowledges that Randall-Reilly may revise the terms and conditions of this Agreement at any time, in its sole discretion. Customer shall monitor these terms and conditions on a regular basis. Customer’s continued use of the Site after any changes have been posted hereto shall constitute Customer’s agreement to all such changes.

1 PRODUCTS

 

1.1 The Site is an Advertising and Research Service; Construction; Site Access. Randall-Reilly operates the Site as an online advertising and research service for equipment buyers, sellers, and enthusiasts. Randall-Reilly does not sell equipment directly via the Site and is never a party to any transaction between buyers and sellers. As a result, Randall-Reilly does not (a) guarantee or ensure any equipment or any transaction between a buyer and seller; (b) collect or process payment or transfer of title on behalf of buyers or sellers; or (c) warehouse, store, ship, or deliver any equipment.

 

1.2 Usage Rights, Restrictions, Responsibilities

1.2.1 Site Access. 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 access and use the Site as a Seller, for the term stated therein, solely in connection with the lawful operation of Customer’s business. At any time, Randall-Reilly may, in its reasonable discretion, unilaterally change the specific features or functionality of the Site without notice or liability. The Site may be unavailable from time to time for routine or other maintenance, security, or other purposes, each in Randall-Reilly’s sole discretion.

1.2.2 Authorized Users; Seat Licenses. Customer may designate the specific Authorized Users to be provided access to any part of the Site requiring login credentials. The access and use rights of each Authorized User shall be governed by the number and type of license(s) 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. Randall Reilly reserves the right to monitor Customer’s and its’ Authorized Users’ compliance with any usage restrictions in this Agreement.

1.2.3 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 any part of the Site requiring login credentials 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 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. Customer shall be and remain fully responsible to Randall-Reilly for any unauthorized disclosure or use of an Authorized User’s Access Code and/or the use of the Site associated with Customer’s Subscription(s) by its Authorized Users or any other third parties who obtain access to an Authorized User’s Access Code.

1.2.4 Access Restrictions. 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 Site where is, as is and as available.

 

1.3 Permitted Uses; Use Restrictions; Compliance.

1.3.1 Customer shall, and shall cause each Authorized User to, only use Customer’s Subscription and the Site in accordance with (a) the terms and provisions of this Agreement, (b) all applicable federal, state, local and international laws, statutes, rules and regulations, and any contractual commitments of Customer and/or any Authorized User, 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.

1.3.2 Customer shall not use its Subscription or the Site for any purposes beyond the scope of the rights granted in this Agreement, including to promote any other website or business without the prior, written permission of Randall-Reilly. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized User to: (a) copy, modify, adapt, clone, disassemble, decompile, decrypt, decode, otherwise reverse engineer or create derivative works of Randall-Reilly Materials (including, without limitation, any component of the Site), in whole or in part, except as expressly permitted herein; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Randall-Reilly Materials to anyone else; (c) remove any proprietary notices from the Randall-Reilly Materials; (d) use the Randall-Reilly Materials 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; or (e) permit either direct or indirect access to or use of Customer’s Subscription for anyone who is not an Authorized User.

1.3.3 Customer Content. With respect to any Advertising Material or any other information Customer maintains related to equipment to be displayed on the Site (“Customer Content”), to allow Randall-Reilly the means necessary in Randall-Reilly’s discretion to upload, scrape, display, or otherwise maintain such Customer Content on or through the Site. Customer agrees that such Customer Content will not include any defamatory, abusive, obscene, discriminatory, threatening, misleading, or illegal material, or any material that infringes upon the rights of any other individuals or third parties. Customer agrees to not make available for upload or display any sensitive or personal information of any individual, including without limitation, an individual’s name in conjunction with a social security number, driver’s license number, passport number, or other government-issued identification number, financial account information, health information, or any other information that could be used to facilitate identity theft or financial fraud, or any personal information whatsoever of any individual that Customer has not obtained adequate permission or consent to upload or display. Customer is solely responsible for its Customer Content, and assumes all risks associated with any Customer Content. Randall-Reilly reserves the right to delete, move, or edit any Customer Content that is publicly available at any time in its sole discretion for any reason without notice to Customer. Randall-Reilly shall have no obligation to back up any Customer Content for any period of time for any reason.

1.3.4 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).

1.3.5 Advertising Material. With respect to any information regarding equipment for sale submitted by Customer to the Site, or which Customer allows Randall-Reilly the means necessary in Randall-Reilly’s discretion to upload, scrape, display or otherwise maintain on or through the Site, as a Seller (“Advertising Material”), Customer expressly acknowledges and agrees that (a) all Advertising Material is subject to Randall-Reilly’s approval in its sole discretion; (b) Randall-Reilly reserves the right, in its sole discretion, to reject or cancel any Advertising Material at any time, with or without notice to Customer; and (c) the positioning within the Site of any Advertising Material is and shall be at the sole discretion of Randall-Reilly. In addition, while there is no requirement that Customer own the equipment included within any Advertising Material submitted hereunder, Customer: (i) must (and hereby represents and warrants that it does and shall) have all necessary rights to include such equipment within any and all such Advertising Material; and (ii) Customer acknowledges and agrees that it is (and shall be) solely responsible for accurately representing all applicable equipment and information within such Advertising (e.g., price, color, condition, features, etc.), whether or not Customer owns such equipment. Randall-Reilly shall not have any liability whatsoever, to any Person, for any inaccuracies in any Advertising Material submitted hereunder.

1.3.6 Selling Activities. Customer agrees that, in connection with listing equipment for sale on the Site, or which Customer allows Randall-Reilly the means necessary in Randall-Reilly’s discretion to upload, scrape, display or otherwise maintain on or through the Site, it will: a) be prepared to sell the equipment at the price and terms on which Customer has listed the equipment; b) be in actual possession of the equipment and have the ability to transfer title; c) accurately identify the seller of the equipment and method of contact that permits buyers to communicate directly with the seller; d) not charge any buyer for additional information about the equipment beyond what is listed on the Site; and e) not falsely represent any equipment listed for sale or engage in any unfair or deceptive practices.

1.3.7 Customer agrees that Randall-Reilly may use technological solutions or mechanisms, including but not limited to, API integrations, web scrapers, or web crawlers to add Customer Content and/or Advertising Material to the Site. Customer agrees that to the extent Customer’s Terms of Use or equivalent terms governing permissible uses of its website(s) prohibit such technological solutions, this provision supersedes any such prohibitions.

 

1.4 Ownership Rights.

1.4.1 Ownership of Randall-Reilly Materials. Customer expressly acknowledges that, as between Randall-Reilly and Customer, Randall-Reilly owns all worldwide Intellectual Property Rights to (including design and look and feel of) the Randall-Reilly Materials, subject only to the licenses and/or use rights specifically granted in this Agreement.

1.4.2 Ownership of Customer Content. Customer represents and warrants that Customer has obtained all required permissions, consents, and licenses in order to submit or display Customer Content on the Site. Customer hereby grants Randall-Reilly a limited license to access and display the Customer Content. Subject to the limited rights expressly granted hereunder, as between the parties, Customer owns all rights, title and interest, including all Intellectual Property Rights, in and to Customer Content. Customer grants Randall-Reilly and its Affiliates and subcontractors a worldwide, royalty-free, non-exclusive license to host and use the Customer Content to the extent necessary to provide the services available through the Site and Customer’s Subscription thereto, and to perform its rights and obligations under this Agreement. Subject to the foregoing, Customer further grants Randall-Reilly, and its Affiliates and subcontractors a worldwide, royalty-free, non-exclusive license to use, prepare derivative works from, reproduce, modify, sublicense, transfer, sell, and distribute aggregated Customer Content for any lawful purposes, including without limitation for Randall-Reilly’s own research or data analytics purposes.

1.4.3 Logos and Marks. Customer grants Randall-Reilly a limited, non-exclusive, royalty free license to use any Customer logos in Randall-Reilly’s advertising, literature, and websites, solely in connection with the marketing and resale of the Site.

1.4.4 Feedback. Customer may, but is not required to, provide Randall-Reilly with ideas, suggestions, requests, recommendations or feedback about the Site or its Subscription (“Feedback”). If Customer does so, Customer grants Randall-Reilly and its Affiliates a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to use, exploit, reproduce, incorporate, distribute, disclose, and sublicense the Feedback for any lawful purpose.

 

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 Customer or an 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 attorneys’ fees, incurred by Randall-Reilly in collecting any delinquent Fees. Monthly Fees are fully earned and non-refundable at the beginning of each month of the Term as set forth in the Agreement, and all other Fees are fully earned and non-refundable when due. The general failure of the Site or any other related system to provide the performance necessary for the compilation of or access to the Site 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 Taxes.

3 CONFIDENTIALITY

 

3.1 Definition. “Confidential Information” means: (a) the Randall-Reilly Materials; (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 incorporates 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. 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 whom 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 WARRANTIES

 

4.1 Warranty Disclaimer. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL EQUIPMENT, DATA, AND INFORMATION ACCESSIBLE FROM OR DISPLAYED BY THE SITE, INCLUDING WITHOUT LIMITATION, ANY CUSTOMER CONTENT, INCLUDING ADVERTISING MATERIALS OF ANY CUSTOMER, 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 HEREIN, RANDALL-REILLY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY CONTENT ACCESSIBLE FROM OR DISPLAYED BY THE SITE, OR THE AVAILABILITY OF THE SITE OR ANY PORTION THEREOF OR TOOL THEREIN. 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 SITE ACCESS, INTEGRATION OR INFORMATIONAL CONTENT.

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: (a) any breach by Customer or any Authorized User of any representation, warranty, or covenant set forth in this Agreement; (b) any violation of law by Customer or any Authorized User; (c) any gross negligence, fraud, misrepresentation, or willful misconduct by Customer or any Authorized User; and (d) any bodily injury, death, or damage to personal property caused by Customer or any Authorized User.

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 Site (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 the Site 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 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 Site by or at the direction of Customer 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 or any Authorized User. In the event that the Site, Randall-Reilly Materials, 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 the Site, Randall-Reilly Materials, or any data or information used in the compilation or preparation thereof 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 (i) procure for Customer and its permitted assigns the right to use the Site and/or Randall-Reilly Materials in accordance with the provisions of this Agreement; or (ii) replace or modify the applicable Site or Randall-Reilly Materials 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 Rights.

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 OR THE SITE, 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 Site 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 HEREIN, 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 6-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM OF LIABILITY. THE FOREGOING LIMITATIONS 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 written notice to the other of non-renewal at least sixty (60) 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 and/or access rights granted hereunder, and its other performance obligations 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

6.2.3 Customer 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 and/or access rights granted by Randall-Reilly hereunder shall terminate, (b) Randall-Reilly shall discontinue access to and delivery of the Site, (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 the Site other than what is available through public access to the Site. 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 1.4 and Sections 2 through 7 will survive any suspension or termination of this Agreement.

 

7 MISCELLANEOUS

 

7.1 Injunctive Relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 1.4 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 Authorized User, 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/or Authorized User 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 compliance with the terms of this Agreement, during normal business hours and, where possible, upon advance notice. Randall-Reilly will bear its own costs of any requested audit, unless Customer or any Authorized User 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 and/or subsidiaries or in connection with the sale or other transfer of all or substantially all of the assets of Randall-Reilly 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 provision.

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 pursuant to this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or by email (with confirmation of transmission); or (d) on the third day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid). Notices must be sent to the respective parties at the addresses (physical and/or electronic) set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with 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 consent.

7.11 Export Control. The Randall-Reilly Materials utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Randall-Reilly Materials or the underlying software or technology to, or make the Randall-Reilly Materials or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making any Randall-Reilly Materials or any underlying software or technology available outside the U.S.

APPENDIX 1 DEFINITIONS

 

“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 that have expressly been granted access per the terms of this Agreement by Randall-Reilly. Without Randall-Reilly’s express written consent, “Authorized Users” shall exclude any affiliate company, sister company, subsidiary company, third parties, including but not limited to any representatives, agents, or contractors of Customer or any of the foregoing.

“Damages” means actions, causes of action, claims, demands, losses, expenses, damages and costs whatsoever (including, without limitation, reasonable attorneys’ fees).

“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 the Site, including any aspect of the operation, use, support or maintenance thereof.

“Effective Date” means the date set forth in the Sales Contract as the commencement date for access to the Site 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.

“Randall-Reilly Materials” means all products, services, or other offerings presented in the Sales Contract, any Exhibit thereto, the Site, and/or Documentation.

“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.

“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.

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