Terms and conditions of use
These Terms and Conditions of Use by and between Randall-Reilly, LLC, a Delaware limited liability company (“Randall-Reilly”) and the customer (“Customer”) set forth in the sales quotation between Randall-Reilly and Customer (the “Sales Quotation”), together with Appendix 1 (collectively, 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 the Product set forth in the Sales Quotation 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 Quotation, Customer acknowledges and agrees that it has read, understood and agreed to be bound by the terms and conditions of this Agreement and 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 of use and Customer’s (or any Covered Entity’s) continued use of the Product after any changes have been posted hereto shall constitute Customer’s agreement to all such changes. Capitalized terms used herein have the meanings set forth in Appendix 1 hereto.
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 Quotation, Randall-Reilly agrees to provide Customer with certain limited, non-exclusive rights to use the Product. At any time and from time to time, Randall-Reilly may, in its reasonable discretion, unilaterally change the specific features or functionality of the Product. The terms under which Customer may use the Product are set forth in this Agreement. In the event of a conflict between the terms of the Sales Quotation and these Terms and Conditions of Use, these Terms and Conditions of Use shall control.
1.2 Grant of Limited License. Subject to the license limitations and other terms and conditions of the Agreement, including Customer’s payment of all applicable fees, Randall-Reilly hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license, during the Term, to allow Authorized Users to use the Randall-Reilly Materials solely for Customer’s or a Covered Entities’ internal business and recruiting uses (the “License”). All other uses of the Randall-Reilly Materials are prohibited, and any such prohibited use shall constitute an immediate and material breach of this
1.3 Authorized Users; Seat Licenses. Unless the Sales Quotation specifically provides that Customer is entitled to access and use of the Product by an unlimited number of Authorized Users, the additional terms of this Section 3 shall apply: Customer may designate the specific Authorized Users to be provided access to the Product and who may access or upload Content. The access and use rights of each Authorized User shall be governed by the license type, as set forth in detail in the Sales Quotation (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.
1.4 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 Product and the Content through the Site or Apps (as defined below) 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.
1.5 Access. During the Term, and subject to terms of this Agreement, including, without limitation, the access limitations of the applicable Seat Licenses set forth in the Sales Quotation, Randall-Reilly will provide the Authorized Users with electronic access to the Product through a Randall-Reilly website (the “Site”) or one or more downloadable mobile applications or desktop client applications (the “Apps”). In addition to the terms and conditions of this Agreement and the access limitations set forth in the applicable Sales Quotation, the terms and conditions as set forth at the Site, if any, shall apply to any use of the site. 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 the Site and the Apps where is, as is and as available. The Site or the Apps may be unavailable from time to time for routine or other maintenance, security, or other purposes in Randall-Reilly’s sole discretion.
1.6 Permitted Uses; Use Restrictions.
- 1.6.1 Customer shall, and shall cause each Covered Entity and Authorized User to, only use the Randall-Reilly Materials in accordance with (a) the terms and provisions of this Agreement, including any use restrictions set forth in the Sales Quotation, (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.
- 1.6.2 Customer shall not use the Randall-Reilly Materials for any purposes beyond the scope of the rights granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Covered Entity or Authorized User to: (i) copy, modify, adapt, clone, disassemble, decompile, decrypt, decode, otherwise reverse engineer or create derivative works of any Randall-Reilly Materials (including, without limitation, any component of the Licensed Software, Site or Apps), in whole or in part, except as expressly permitted by Section 6.3; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Randall-Reilly Materials; (iii) remove any proprietary notices from the Randall-Reilly Materials; (iv) use the Randall-Reilly Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any Person, or that violates any applicable law; (v) distribute copies of all or any part of the Licensed Database, or permit either direct or indirect access to or use of the Licensed Database; (vi) input, upload, transmit or otherwise provide to or through the Licensed Software, Site or Apps any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (vii) bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Randall-Reilly Materials; (viii) attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Randall-Reilly Materials, (B) the server on which the Randall-Reilly Materials are stored, (C) any server, computer or database connected to the Randall-Reilly Materials, or (D) Randall-Reilly’s ability to provide services to any other Person; (ix) use any robot, spider or other automatic device, process or means to access the Randall-Reilly Materials, including for monitoring or copying any of the content or information available through the Randall-Reilly Materials; (x) send, receive, upload, download, use or re-use any material that does not comply with the Content Standards set forth in Section 4.6 below; (xi) access or use the Randall-Reilly Materials for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Randall-Reilly Materials, or (C) disclosing to Randall-Reilly’s competitors, for any purpose, otherwise non-public information about the Randall-Reilly Materials; (xii) violate any additional use restrictions or limitations on use that may be further specified in the Sales Quotation; or (xiii) knowingly aid or assist (A) any Authorized User or other Person in taking any of the actions prohibited by this Section 1.6.2, or (B) any Applicant in violating the EULA (as defined in Section 1.7 below). Customer must immediately notify Randall-Reilly should Customer learn that Customer, any Covered Entity, any Authorized User or any other Person has taken any action prohibited by this Section 1.6.2, or should Customer learn that any Applicant has violated the EULA.
- 1.6.3 Customer may reproduce the Licensed Database and the records included therein (and any portions thereof) solely for its own internal use by Authorized 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 (other than Covered Entities or any Representatives who are Authorized Users). 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.
- 1.6.4 Customer shall be and remain fully responsible to Randall-Reilly for any violation of the limitations and restrictions set forth in Section 6.2 or any other terms and conditions of this Agreement by any Covered Entity or Authorized Users.
1.7 Applicant Access. Each Applicant’s rights, duties and obligations with respect to accessing and using Randall-Reilly Materials are governed by the applicable terms of service accepted and agreed to by such Applicants during registration (the “EULA”).
1.8 Ownership. Customer expressly acknowledges that, as between Randall-Reilly and Customer or any Covered Entity, Randall-Reilly owns all worldwide Intellectual Property Rights to the Randall-Reilly Materials (including all associated features, functionality, software, content, materials and services made available thereon by Randall-Reilly, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, and including the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing), subject only to the licenses and use rights specifically granted in this Agreement. Randall-Reilly and the respective rights holders in any Third-Party Materials reserve all other rights in and to the Randall-Reilly Materials.
1.9 Open-Source Licenses. Customer acknowledges and agrees that the Product, the Site and the Apps may include certain Open-Source Components licensed under applicable open-source licenses (each, an “Open-Source License”). Any use of the Open-Source Components shall be governed by, and subject to, the terms and conditions of such Open-Source License(s).
2. FEES AND TAXES
2.1 Fees. Customer shall pay to Randall-Reilly all subscription fees, license fees, report fees and any other fees or charges set forth in the applicable Sales Quotation (collectively, the “Fees”), in accordance with the terms of this Agreement and any invoices sent by Randall-Reilly. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement) all Fees once paid are non-refundable. The general failure of the Product, the Site, the Apps or any other system to provide the performance necessary for the compilation of or access to the Product shall not be a basis for a failure by Customer to make payment of any Fees and no Fee shall be subject to offset by Customer for any reason.
2.2 Taxes. All 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”). 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.
2.3 Payment Terms. Customer will make all payments in U.S. dollars. Customer shall, upon Randall-Reilly’s request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, Customer agrees that Randall-Reilly may charge the Fees using that Automatic Payment Method. If instead Randall-Reilly invoices Customer for the applicable Fees, then, unless otherwise specified in the applicable invoice, invoiced amounts are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information and notifying Randall-Reilly of any changes to that information.
2.4 Late Payment. 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 delinquent Fees.
3.1 “Confidential Information” means any proprietary or confidential business or technical information that is disclosed by one party to the other party, whether in writing, electronically, orally or through visual inspection, and whether or not marked as “confidential.” The Randall-Reilly Materials and any non-public information concerning the Randall-Reilly Materials are the Confidential Information of Randall-Reilly, the Content (other than the Public Content) is Customer’s Confidential Information, and the terms of this Agreement and each Sales Quotation are the Confidential Information of both parties.
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 or its employees or Representatives; (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; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is Public Content.
3.3 Use and Disclosure Restrictions. Each party shall take commercially reasonable efforts to safeguard and secure any Confidential Information of the other party and shall not access, copy, use or disclose such information for any purpose other than in connection with the party’s performance of its obligations or exercise of its rights under this Agreement. Neither party will disclose the other party’s Confidential Information to any third party except on a confidential basis to (a) in the case of Randall-Reilly, its employees and Representatives, and (b) in the case of Customer, its Covered Entities and Authorized Users, in each case who need to know such Confidential Information for the purpose of performance of the party’s obligations or exercise of its rights under this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (1) 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 enable that other party to contest such order or requirement; or (2) on a confidential basis to its legal or financial
4. CUSTOMER CONTENT
4.1 Content License. During the Term, Customer hereby grants to Randall-Reilly and its subcontractors all such rights and permissions in or relating to the Content as are necessary to perform its obligations under this Agreement, including providing the Product to Customer and hosting Content for Customer. Customer shall be solely responsible for (1) securing all rights, permissions and consents necessary to grant Randall-Reilly and its subcontractors access to or use of any Content, and (2) the accuracy, quality, legality and appropriateness of all of the Content.
4.2 Usage Data. Customer additionally acknowledges and agrees that Randall-Reilly may collect metadata and telemetry regarding Customer’s, any Covered Entity’s and any Authorized User’s use of the Products (“Usage Data”). Usage Data does not contain and is not derived from the Content. During the Term and thereafter, Customer hereby grants to Randall-Reilly and its subcontractors all such rights and permissions in or relating to the Usage Data as are necessary for Randall-Reilly to (a) use Usage Data for Randall-Reilly’s internal research purposes and to improve the quality of its analytics and improve the Randall-Reilly Materials and associated algorithms, and (b) publish and share with third parties aggregated Usage Data that cannot, by itself or with other data, directly or indirectly, identify Customer or its Covered Entities or Authorized Users, or any other individual or entity.
4.4 Customer Representations and Warranties. Customer represents and warrants that:
- 4.4.1 Customer either owns, or has all rights, permissions and consents that are necessary to process, and to permit Randall-Reilly, its subcontractors and the Product, Site and Apps to process all Content as contemplated in this Agreement;
- 4.4.2 Randall-Reilly’s and its subcontractors’ access to and use of the Content (including, for the avoidance of doubt, all personal information included with the Content) as contemplated by this Agreement does not and will not violate applicable law, infringe the intellectual property rights or misappropriate the trade secrets of any Person, or violate the privacy rights or other rights of any Person; and
- 4.4.3 with respect to any Public Content posted to the Product by Customer, a Covered Entity or any Authorized Users, Customer, the Covered Entity or the applicable Authorized User has the right to post such Public Content publicly.
4.5 FCRA and Other Authorizations for Records.
- 4.5.1 In providing access to the Product, Randall-Reilly may act as a conduit to receive certain consumer reports ordered by Customer or a Covered Entity from one or more consumer reporting agencies. Randall-Reilly will not review, alter, assemble or evaluate the information in such reports but will merely host and deliver the same through the Product. Customer understands and acknowledges that it (or, as applicable, the Covered Entity) has specific legal responsibilities in connection with obtaining authorization from an Applicant before requesting a consumer report and using information obtained from a consumer report to make employment decisions. Randall-Reilly will not be responsible for obtaining such authorizations from any Applicant on Customer’s or any Covered Entity’s behalf, and therefore Customer (or, as applicable, the Covered Entity) shall be solely responsible for obtaining any and all such authorizations from each applicable Applicant individually as part of its own application and on-boarding processes. Randall-Reilly strongly recommends that Customer consult with its own legal counsel to understand Customer’s and each Covered Entity’s legal responsibilities related to obtaining and using consumer report information, developing a legally compliant disclosure and authorization process, and ensuring Customer’s (or, as applicable, the Covered Entity’s) policies and procedures with respect to its screening programs comply with all applicable legal and regulatory requirements. Customer further agrees and understands that Randall-Reilly is not legal counsel and does not and cannot provide legal advice.
- 4.5.2 Customer acknowledges, represents and warrants the following: (a) that Customer (or, as applicable, the Covered Entity) has demonstrated to each consumer reporting agency that it, as appropriate, has complied with and will comply with the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (“FCRA”) with regard to requesting, using and disposing of such consumer reports; (b) that Customer (or, as applicable, the Covered Entity) has a legitimate need for the reports and information collected in connection therewith; (c) that such reports will be obtained and used exclusively for hiring purposes and shall not be further distributed, sold, given or traded with any third party unless such report is obtained for a specific joint use in compliance with the FCRA; (d) that Customer (or, as applicable, the Covered Entity) will disclose to the individual who is the subject of a consumer report that a consumer report or, as applicable, an investigative consumer report, may be obtained; (e) that Customer (or, as applicable, the Covered Entity) will obtain written consent from the applicable individual allowing Customer (or, as applicable, the Covered Entity) to obtain such consumer report and process it through and in connection with Customer’s (or, as applicable, the Covered Entity’s) use of the Product; (f) that Customer (or, as applicable, the Covered Entity) will retain the consumer information contained in the consumer report in a secure and confidential manner; (g) that Customer (or, as applicable, the Covered Entity) will not use such consumer information in violation of any applicable federal law, including, but not limited to, equal opportunity laws; (h) that any and all actions Customer (or, as applicable, the Covered Entity) takes with respect to information contained in a consumer report shall be in strict compliance with all requirements of the FCRA; (i) that Customer (or, as applicable, the Covered Entity) will inform each applicable individual that he or she may obtain more information about the FCRA, including information on rights under his or her state’s law which may be greater than under the FCRA, at consumerfinance.gov/learnmore and that he or she may report violations to the Office of Financial Management, Department of Transportation, Washington, DC 20590 or via telephone at (202) 366-1306; (j) that as between Randall-Reilly and Customer, Customer retains sole and exclusive responsibility for compliance with the FCRA; and (k) that Customer (or, as applicable, the Covered Entity) will comply with all adverse action procedures required by FCRA, including requirements to provide a preliminary adverse action notice to the relevant Applicant, along with a copy of the consumer report and the notice entitled “A Summary of Your Rights Under the Fair Credit Reporting Act”, allowing the Applicant a designated period of time to contact the consumer reporting agency if the Applicant wishes to dispute any information in the consumer report, providing consumer reporting agency contact information and providing a final adverse action notice to the Applicant if a final adverse employment decision is made.
- 4.5.3 In providing access to the Product, Randall-Reilly may host and store on Customer’s or a Covered Entity’s behalf, or may act as a conduit for Customer or a Covered Entity to receive, certain information from the Federal Motor Carrier Safety Administration (“FMCSA”) and/or its Pre-employment Screening Program (“PSP”) (collectively, the “Safety Reports”). Customer acknowledges, represents and warrants the following: (a) pursuant to federal statute, the Safety Reports will only be used for pre-employment screening of Applicants and only by Customer or the Covered Entity that is directly involved in the hiring process with respect to the applicable Applicant and/or the Applicant; (b) the Safety Reports will not be shared in any way with anyone other than the Applicant and Customer or Covered Entity employees actually involved in the hiring process with respect to the applicable Applicant, except to the extent otherwise required by applicable law; (c) Customer will not (and shall cause its Covered Entities and Authorized Users not to) use an Applicant’s information from a Safety Report for direct mail or e-mail solicitations, advertising, or surveys, or to compile or publish or permit others to compile or publish, including on the Internet, any portions of the personal information furnished in a Safety Record; (d) Customer will (and shall cause its Covered Entities and Authorized Users to): (i) abide by all state and federal legal restrictions and conditions upon use and disclosure of the personal information contained within a Safety Record; (ii) keep sufficient books and records to evidence use of Safety Records in accordance with applicable state and federal laws; (iii) implement reasonable system and data security procedures to protect Safety Records from unauthorized disclosure; (iv) promptly report to Randall-Reilly any known misuse of and/or breach of security or confidentiality involving a Safety Record; and (v) promptly (and in any event within three business days of service of process) report to Randall-Reilly any litigation or Notice of Claim involving the content or handling of a Safety Record furnished to Customer or the applicable Covered Entity; (e) prior to obtaining a Safety Record regarding a particular Applicant, Customer (or, as applicable, the Covered Entity) will: (i) disclose to the Applicant who is the subject of a Safety Record that a Safety Record may be obtained; and (ii) obtain written consent from the applicable individual allowing Customer (or, as applicable, the Covered Entity) to obtain such Safety Record and process it through and in connection with Customer’s (or, as applicable, the Covered Entity’s) use of the Product; (f) Customer (or, as applicable, the Covered Entity) will: (i) inform each Applicant in writing if information about the Applicant obtained from a Safety Report has been used in the hiring screening process; (ii) provide each Applicant a complete and full copy of the information on the Applicant that was obtained from the Safety Report if required under the FCRA; and (iii) inform each Applicant that he or she has a right to dispute the completeness or accuracy of information obtained from a Safety Report by visiting https://dataqs.fmcsa.dot.gov.
- 4.5.4 Customer further acknowledges, represents and warrants: (a) that it (or, as applicable, the Covered Entity) will comply with the Drivers Privacy Protection Act, 18 U.S.C. § 2721, et seq., and all other applicable federal, state and local laws, rules and regulations concerning ordering, accessing and using driving records, consumer reports and other information obtained through background checks or pre-employment screening processes; and (b) that as between Randall-Reilly and Customer, Customer retains sole and exclusive responsibility for compliance with such laws, rules and regulations.
4.6 Content Standards. In using the Product, Customer agrees that it shall not, and it shall cause its Covered Entities and Authorized Users to not: (a) transmit any communications or materials that (i) are defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; (ii) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or other protected class or status; or (iii) are false, misleading, or not provided in good faith; (b) promote any illegal activity, or to advocate for, promote or assist in any unlawful act; (c) impersonate or attempt to impersonate any Person, or misrepresent a person’s identity or affiliation with any Person (including, but not limited to, Randall-Reilly or any of its Representatives); or (d) in any manner give the impression that any communications or materials provided emanate from or are endorsed by Randall-Reilly or any other Person, if this is not the case.
5. IMPORTANT DISCLAIMERS
5.1 Facilitation Tool Only; Not an Employment Service.
- 5.1.1 The Product is solely a communications and networking tool that enables connections between Applicants and potential employers (such as Customer). Except for facilitating connections through the Product, Randall-Reilly does not take part in the interactions between an Applicant and any employer or potential employer (such as Customer), and Randall-Reilly is not responsible for (and will not be liable for) such interactions. As between Randall-Reilly and Customer, Customer is solely responsible for such interactions. Randall-Reilly is not a party to any relationship or contract between any Applicants and any employer or potential employer (such as Customer). All dealings are solely between the respective parties. Randall-Reilly will not be responsible for in any way intervening in, mediating or resolving any dispute between or among Applicants and any employer or potential employer (including Customer), whether on Customer’s or a Covered Entity’s behalf or on behalf of any Applicants. IN THE EVENT THAT CUSTOMER OR ANY COVERED ENTITY HAS A DISPUTE WITH ONE OR MORE APPLICANTS, CUSTOMER HEREBY AGREES TO RELEASE AND INDEMNIFY (AND SHALL CAUSE EACH COVERED ENTITY TO RELEASE AND INDEMNIFY) RANDALL-REILLY (AND ITS OFFICERS, DIRECTORS, MANAGERS, OWNERS, AGENTS, SUBSIDIARIES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- 5.1.2 The availability of any applications or job posting materials from Applicants via the Product does not imply Randall-Reilly’s endorsement of such Applicants in general or for any specific job position. Randall-Reilly does not guarantee or warrant as accurate or reliable any information posted to the Product by Applicants. Randall-Reilly cannot and does not control, is not responsible for, and makes no representations regarding (a) the existence, quality, timing, suitability, reliability, eligibility, safety or legality of any Applicant, Applicant Information, or the employment by Customer or any Covered Entity of any Applicant posted on the Product, or (b) whether Customer’s (or, as applicable, a Covered Entity’s) use of the Product will result in filling any particular position with satisfactory employees or service providers.
- 5.1.3 The Product is not an employment service and Randall-Reilly does not serve as the employer of any Applicant. As such, Randall-Reilly will not be responsible for or liable for payment of any legally-required employment benefits or any employment-related tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with Customer’s (or any Covered Entity’s) use of the Product or Customer’s or any Covered Entity’s decision to hire, employ or engage any Applicant. Customer understands and agrees that if Randall-Reilly is found to be liable for any tax or withholding tax in connection with Customer’s (or its Covered Entities’ or Authorized Users’) use of the Products, then Customer will immediately reimburse and pay to Randall-Reilly an equivalent amount, including any interest or penalties thereon. Employment of an individual in the United States is subject to the employer’s compliance with various federal, state and local laws and regulations, including (without limitation) tax laws and regulations, laws and regulations relating to an employee’s or service provider’s immigration status, laws and regulations relating to employment discrimination and civil rights, and laws and regulations relating to wages, hours and labor rights. As the employer, it is Customer’s (or, as applicable, the Covered Entity’s) responsibility to ensure that its employment of any Applicant (or other engagement of any Applicant as a service provider) is in compliance with all applicable employment laws and regulations. Randall-Reilly does not guarantee, is not responsible for, and makes no representations or warranties regarding whether or not employment or engagement of any particular Applicant by Customer (or, as applicable, a Covered Entity) would be in compliance with such laws and regulations.
5.2 Warranty Disclaimer. Randall-Reilly strives to provide a reliable and useful experience when using the Product, the Site or the Apps, but does not guarantee that the Product, the Site or the Apps will be available at any specific time or that any of them will be free of errors, and Randall-Reilly will not be liable for any reason if Customer, any Covered Entity, any Authorized User or any Applicant cannot access the Product, the Site or the Apps or if an error in any of the Product, the Site or the Apps hinders any of their features or functionality. Customer acknowledges and agrees that THE RANDALL-REILLY MATERIALS, including, without limitation, ALL REPORTING, INFORMATION OR OTHER CONTENT PROVIDED or made available HEREUNDER, AND including, without limitation, all Content posted to the site or the apps, IS PROVIDED “AS-IS”, “WHERE-IS” AND “AS AVAILABLE,” AND RANDALL-REILLY ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, INACCURACIES OR OMISSIONS THEREIN, including, without limitation, errors, inaccuracies or omissions contained in any data or the results of action or inaction of Customer or any covered entity based, in whole or in part, on any data. 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 RANDALL-REILLY MATERIALS, OR THE AVAILABILITY OF the PRODUCT, THE site OR THE APPS, AND RANDALL-REILLY HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER’S OR ANY COVERED ENTITY’S REQUIREMENTS, OR OF FREEDOM FROM INTERRUPTION, VIRUS OR OTHER DISABLING ROUTINE, TITLE, QUIET ENJOYMENT, DATA ACCURACY, ERROR, OMISSION, ACCESS TO PRODUCT, SITE OR APPS, INTEGRATION OR INFORMATIONAL CONTENT. Randall-Reilly does not compare any telephone or facsimile numbers or email addresses included in any Licensed Database to any federal or state do-not-call or similar registries.
6. INDEMNIFICATION; LIMITATION OF LIABILITY
6.1 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, 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 and Customer’s representations, warranties and covenants set forth in Sections 6.1 and 4, or (b) any use by Customer, any Covered Entity or any Authorized User of (or any decisions by Customer, any Covered Entity or any Authorized User based on) any Applicant Information.
6.2 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 by Customer of any Product, the Site or the Apps (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 any Randall-Reilly Materials 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 Randall-Reilly Materials 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 any Randall-Reilly Materials 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 Randall-Reilly Materials become the subject of an actual or threatened infringement-related claim or if Randall-Reilly reasonably believes that any Randall-Reilly Materials are 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 (or, as applicable, the Covered Entity) and its permitted assigns the right to use such Randall-Reilly Materials in accordance with the provisions of this Agreement or (y) replace or modify the applicable Randall-Reilly Materials so that they become non-infringing and in compliance with applicable 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 Term that remained as of the date of such termination. The provisions of this Section 6.2 constitute the sole and exclusive remedy of Customer, each Covered Entity and each Authorized User, and the sole and exclusive obligation of Randall-Reilly, relating to a claim of infringement or alleged infringement of any Intellectual Property Rights.
6.3 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 DAMAGES. CUSTOMER ACKNOWLEDGES THAT THE FEES ARE BASED IN PART UPON THESE LIMITATIONS.
6.4 Liability Limitation. EXCEPT FOR its INDEMNIFICATION obligations SET FORTH IN SECTION 2, RANDALL-REILLY’S TOTAL LIABILITY 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 DETERMINATION. THE FOREGOING LIMITATIONS OF THIS SECTION 6.4 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.5 Without limiting Sections 3 and 6.4, 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, a Covered Entity or Authorized User that constitutes a breach of this Agreement.
7. TERM AND TERMINATION
7.1 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 Quotation, unless earlier terminated as set forth herein.
7.2 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 it may terminate this Agreement or any Sales Quotation immediately if:
- 7.2.1 Customer fails to make any payment of an invoice from Randall-Reilly when due;
- 7.2.2 Customer, any Covered Entity or any Authorized User breaches Section 6.2 of this Agreement; or
- 7.2.3 Customer, 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.
7.3 Effect of Suspension/Termination. Upon any termination or suspension of this Agreement or any Sales Quotation, (a) all licenses granted by Randall-Reilly hereunder shall terminate, (b) Randall-Reilly may discontinue access to and delivery of the Randall-Reilly Materials, (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 Randall-Reilly Materials and all records included therein (and any portions thereof) and promptly destroy all copies it may have of any information related to the Randall-Reilly Materials, 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. In no event will Randall-Reilly’s suspension or termination relieve Customer of its obligation to pay any Fees payable to Randall-Reilly for the period prior to the suspension or termination. Additionally, for any termination during the 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 Quotation and (ii) the number of remaining months in the 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.
7.4 Survival. The rights and obligations of the parties contained in Sections 8 (Ownership), 3 (Confidentiality), 4.2 (Usage Data), 6 (Indemnification; Limitation of Liability), 7.3 (Effect of Suspension/Termination), 8 (Miscellaneous) and this Section 7.4 will survive any suspension or termination of this Agreement.
8.1 Injunctive Relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 6.2 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 therefor in the event of such breach or threatened breach by Customer, a Covered Entity or any of their employees or Representatives.
8.2 Compliance Audits. Randall-Reilly may, 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 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 Product, 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 pursuant to this Agreement, in which event the cost and expenses of such audit shall be borne by
8.3 Publicity. Except as mutually agreed by the parties hereto, no publicity of the terms or existence of this Agreement shall occur unless agreed upon in writing.
8.4 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 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.
8.5 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.
8.6 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
8.7 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.
8.8 Force Majeure. Except for obligations to make payments hereunder, neither party shall be deemed in default hereunder for, 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, terrorism 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.
8.9 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 Quotation. 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.
8.10 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.
8.11 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 (and shall cause each Covered Entity not to), 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 (and shall cause each Covered Entity to) 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.
Each of the following terms is defined in the Section of the Terms and Conditions of Use set forth opposite such term:
|Automatic Payment Method
“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.
“Applicant” means an individual applicant for employment or engagement as an independent contractor that has individually registered to use the Product through the Site or the Apps, including by agreeing to be bound by the EULA.
“Authorized Users” has the meaning set forth in the Sales Quotation, provided, however, that if such term is not separately defined in the Sales Quotation, “Authorized Users” shall mean the direct employees of Customer (or, as applicable, the Covered Entities). Without Randall-Reilly’s express written consent, “Authorized Users” shall exclude any third parties, including but not limited to Representatives of Customer or any Covered Entity.
“Content” means all data, information, records and other materials that are collected, uploaded or otherwise received from Customer or its Covered Entities (or the respective Authorized Users or each) by or through the Product, including, without limitation, all Fair Credit Reporting Act consumer reports, background check records, driving records and similar records relating to an individual applicant that are obtained by or on behalf of Customer or its Covered Entities and that Randall-Reilly hosts for Customer via the Product. “Content” includes all Public Content.
“Covered Entities” means the Persons set forth in the Sales Quotation as permitted to access the Product under this Agreement; provided, however, that if such term is not separately defined in the Sales Quotation, “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).
“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 Product, the Site or the Apps, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” means the earliest date set forth in any Sales Quotation as the commencement date for access to the Product by Customer or its Covered Entity, provided, however, that if no such date is provided in a Sales Quotation, “Effective Date” shall mean the date that the first Sales Quotation is fully executed by Customer or by Randall-Reilly.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Intellectual Property Rights” means copyrights, ancillary rights and sui generis rights (e.g., database rights) existing under applicable copyright laws, trademarks, service marks, trade dress, 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.
“Licensed Database” means the collection of applicant information and records made available to Customer via the Site or the Apps, which Customer acknowledges and understands is Randall-Reilly’s proprietary and confidential data, including any extract of all or any portion of the Licensed Database (including results of a report or applicant matching service) as well as any copies thereof and all versions, supplements, corrections, modifications and updates thereto. For the avoidance of doubt, the “Licensed Database” does not include any Content. The Licensed Database is a Product for purposes of the Agreement.
“Licensed Software” means the web-based software accessible via the Site or the Apps for reviewing, analyzing and otherwise working with the Licensed Database.
“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” means the Stratas platform as may be further described in the Sales Quotation, including, without limitation, the Licensed Software, each Licensed Database, and any proprietary tools, data or other information or materials provided by Randall-Reilly for access to or use with such products.
“Public Content” means any content, data, pictures, text, messages or other information of any type posted, uploaded or contributed to the public areas of the Site or Apps, such as the Customer’s profile on the Site or Apps.
“Randall-Reilly Materials” means the Product, the Documentation, the Site and the Apps.
“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.