LICENSE AND SERVICES AGREEMENT
Rev. 6.1.20, Truck History Reports
This LICENSE AND SERVICES AGREEMENT by and between Randall-Reilly, LLC, a Delaware limited liability company (“Randall-Reilly”) and the customer (“Customer”) as identified in the Sales Contract, together with all Exhibits, Appendices and Schedules, whether currently referenced herein, referenced or attached to the Sales Contract, or later added by amendment, (collectively referred to as this “Agreement”) constitute the entire agreement between Randall-Reilly and Customer as it pertains to a Truck History Report Subscription 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 specific Truck History Report Subscription set forth in the Sales Contract and any representations made by or materials provided by Randall-Reilly, regardless of any contrary provision in any such agreements or understandings. Customer acknowledges and agrees that it has read, understood and agrees to be bound by the terms and conditions of this Agreement. 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.
GENERAL TERMS AND CONDITIONS
1. PRODUCTS; ACCESS
1.1 Products; Construction. Subject to the terms and conditions of this Agreement and to the extent mutually agreed upon and described in detail in the Sales Contract, Randall-Reilly agrees to provide Customer with certain limited, non-exclusive rights to use those Products specifically set forth in the Sales Contract. At any time and from time to time, Randall-Reilly may, in its reasonable discretion, unilaterally change the specific features or functionality of any or all Products. The terms under which Customer may use the Products are as set forth in this Agreement.
1.2 Authorized Users; Seat Licenses. Customer may designate the specific Authorized Users to be provided access to the applicable Products. The Product access and use rights of each Authorized User shall be governed by the license type, as set forth in detail in the Sales Contract (each, a “Seat License”), allocated by Customer to such Authorized User. The total number of Authorized Users, by type, shall not exceed the number of such type of Seat Licenses purchased by Customer. If Customer purchases additional Seat Licenses during the Term (as defined herein), any such Seat Licenses shall be subject to this Agreement, including any appropriate adjustment of the Fees (as defined herein) to reflect such purchase. Customer may, in its reasonable discretion, permanently reassign, remove or replace the Authorized Users associated with one or more Seat Licenses; provided that no Seat License may be shared among individuals or allocated to more than one individual.
1.3 Access Codes. Each Authorized User shall create a unique access code (each, an “Access Code”) for use solely by such Authorized User to access and use the Products through the applicable Portal (as defined herein) in accordance with the type of Seat License allocated by Customer to such Authorized User. Customer will, and will cause each of the Authorized Users and Covered Entities to, (a) use commercially reasonable efforts to keep each Access Code confidential and to prevent the use of any Access Code other than by Authorized Users; and (b) notify Randall-Reilly promptly of any identified unauthorized access or use of any Access Code.
1.4 Access Portals. During the Term, and subject to the access limitations of the applicable Seat Licenses set forth in the Sales Contract, Randall-Reilly will provide the Authorized Users with electronic access to the applicable Products through a combination of one or more Randall-Reilly websites (each, a “Site”) or mobile device applications (each, an “App”) selected by Randall-Reilly or otherwise through a mutually-agreed method (collectively, with the Sites and the Apps, the “Portals”). The applicable Site or App Terms and Conditions as set forth therein shall apply to any use of such Site or App. Customer agrees not to create any link to any Site without the prior express written consent of Randall-Reilly (which may be withheld in Randall-Reilly’s sole discretion). Customer accepts each Portal where is, as is and as available. The Portals may each be unavailable from time to time for routine or other maintenance, security, or other purposes in Randall-Reilly’s sole discretion.
1.5 Permitted Uses. Customer shall, and shall cause each Authorized User to, only use the Products in accordance with (a) the terms and provisions of this Agreement, including any use restrictions set forth in the Sales Contract and/or applicable Exhibits, (b) all applicable federal, state, local and international laws, statutes, rules and regulations, and any contractual commitments of Customer or of any other Covered Entities, and (c) with respect to any marketing or other commercial communications, in strict compliance with the Direct Marketing Association (‘DMA’) E-Mail Delivery Best Practices guidelines, the US federal CAN-SPAM Act, as amended, the Canada Anti-Spam Law (CASL) and other applicable laws and regulations regarding the delivery of commercial and/or bulk email, and the US federal Telephone Consumer Protection Act (TCPA), as amended, and any other applicable Do Not Call, Do Not Mail, and similar Do Not Solicit regulations.
1.6 Ownership. Customer expressly acknowledges that, as between Randall-Reilly and Customer or any other Covered Entity, Randall-Reilly owns all worldwide Intellectual Property Rights to (including design and look and feel of) the Products and the Portals, subject only to the licenses and use rights specifically granted in this Agreement.
1.7 Open-Source Licenses. Customer acknowledges and agrees that one or more Products may include certain Open-Source Components licensed under applicable open-source licenses (each, an “Open-Source License”). Any use of the Open-Source Components by Customer shall be governed by, and subject to, the terms and conditions of such Open-Source License(s).
2. FEES AND TAXES
2.1 Fees. All subscription fees, license fees, report fees and any other fees or charges arising under this Agreement (collectively, the “Fees”) are exclusive of all federal, state or local excise, sales, use, property and other taxes (other than taxes imposed solely on or for Randall-Reilly’s corporate franchise or net income) now or hereafter levied or imposed in connection with any other service or transaction contemplated by this Agreement (collectively, the “Taxes”). Customer agrees to pay the Fees in accordance with the terms of this Agreement and any invoices sent by Randall-Reilly for additional services or products requested by any Covered Entity or Authorized User. For any and all Fees not paid on or before the applicable due date, Customer agrees to pay as an additional late payment charge the lesser of one and one-half percent (1.5%) per month or the maximum late payment charge permitted by law. Customer also agrees to pay all expenses of collection, including reasonable attorneys’ fees, incurred by Randall-Reilly in collecting delinquent Fees. Monthly Fees are fully earned and non-refundable at the beginning of each month of the Term, and all other Fees are fully earned and non-refundable when due. The general failure of any Product, Portal or any other system to provide the performance necessary for the compilation of or access to the Products shall not be a basis for the failure of Customer to make any payment of any Fees and no Fee shall be subject to offset by Customer for any reason. Fees may be increased by Randall-Reilly upon the expiration of the Initial Term (as defined herein).
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.
3.1 Definition. “Confidential Information” means: (a) all Products, (b) any items specified in an Exhibit as Confidential Information, (c) any business or technical information of Randall-Reilly or Customer that is disclosed to the other party (whether in writing, electronically, orally or through visual inspection); and (d) the specific terms and pricing set forth in this Agreement. Confidential Information shall include, without limitation, information compiled and stored in databases, third party reports prepared on behalf of the disclosing party, customer and vendor information or data, pricing or other financial information, marketing plans, business plans, manuals, tooling, prototypes, sketches, specifications, samples, computer software (source and object codes), techniques, inventions, discoveries, know-how and trade secrets and any document, data, database or computer software that incorporate any portion of the Confidential Information, whether or not marked as “confidential.”
3.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
3.3 Use and Disclosure Restrictions. Randall-Reilly shall take commercially reasonable efforts to safeguard and secure any Confidential Information that Customer uploads to Randall-Reilly through any Product interface and, without the express consent of Customer, will not incorporate any such information into any of Randall- Reilly’s databases or otherwise access, copy, use or disclose such information for any purpose other than in connection with Randall-Reilly’s performance under this Agreement. Neither party may use the other party’s Confidential Information except as contemplated in this Agreement or as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors.
4.1 Warranty Disclaimer. To the extent that records and information comprising all or any part of any Product are obtained from public records and third party sources, Randall-Reilly performs numerous procedures to enhance the information received from such sources. Notwithstanding the foregoing, Randall-Reilly cannot ensure the completeness or accuracy of the information it obtains or the fitness of such information for a particular purpose. Accordingly, Customer acknowledges and agrees that EACH OF THE PRODUCTS AND ALL REPORTING, INFORMATION OR OTHER CONTENT PROVIDED HEREUNDER IS PROVIDED “AS-IS”, “WHERE-IS” AND AS AVAILABLE, AND RANDALL-REILLY ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, INACCURACIES OR OMISSIONS THEREIN. RANDALL-REILLY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONTENT OF ANY PRODUCT, OR THE AVAILABILITY OF ANY PORTAL OR ANY REPORTING TOOL, AND RANDALL-REILLY HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER REQUIREMENTS, ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, OR OF FREEDOM FROM INTERRUPTION, VIRUS OR OTHER DISABLING ROUTINE, TITLE, QUIET ENJOYMENT, DATA ACCURACY, ERROR, OMISSION, SYSTEM OR PORTAL ACCESS, INTEGRATION OR INFORMATIONAL 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 any breach by Customer, any Covered Entity or any Authorized User of any representation, warranty or covenant set forth in this Agreement, including the terms of the licenses granted hereunder.
5.2 Indemnification by Randall-Reilly. Randall-Reilly agrees to indemnify, defend and hold harmless Customer against any Damages arising, directly or indirectly, out of a claim by any third party of infringement of its U.S. Intellectual Property Rights, in each case to the extent attributable to the use or display by Customer of any Product or Portal (other than any Third-Party Materials contained therein), provided that Randall-Reilly shall have no liability for any Damages to the extent that such Damages have arisen due to (a) the combination or integration of such Product or Portal or any of Randall-Reilly’s other services, solutions, information or technology with services, solutions, information or technology not provided by Randall-Reilly, (b) use, reproduction, distribution, display or disclosure of such product other than in accordance with the terms of this Agreement, (c) the failure of Customer or any Covered Entity to implement and use any maintenance releases or other revisions, corrections or modifications reasonably made available by Randall-Reilly prior to such infringement or unauthorized use, (d) the modification of the Product by or at the direction of Customer, any Covered Entity or any Authorized User or use or distribution thereof in a manner not contemplated by this Agreement, or (e) the fraud or willful misconduct of Customer, any Covered Entity or any Authorized User. In the event that any Product or Portal, or any data or information used in the compilation or preparation thereof becomes the subject of an actual or threatened infringement-related claim or if Randall-Reilly reasonably believes that any Product is likely to become subject to an infringement claim or a claim of breach of or noncompliance with applicable law, then Randall-Reilly shall use commercially reasonable efforts to (x) procure for Customer and its permitted assigns the right to use such Product in accordance with the provisions of this Agreement or (y) replace or modify the applicable Product so that it becomes non-infringing and in compliance with applicable law. In the event that, after using commercially reasonable efforts, Randall-Reilly is unable to obtain either of the above two results, then Randall-Reilly may terminate this Agreement, whereupon Randall-Reilly shall provide a refund to Customer of a pro-rated portion of any prepaid, unearned Fees paid by Customer, based on the unexpired period of the then-current Term that remained as of the date of such termination. The provisions of this Section constitute the sole and exclusive remedy of Customer, and the sole and exclusive obligation of Randall-Reilly, relating to a claim of infringement or alleged infringement of any Intellectual Property.
5.3 Damages Limitation. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RANDALL-REILLY BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY DAMAGES RESULTING FROM LOSS OR INTERRUPTION OF BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, HOWEVER CAUSED, EVEN IF RANDALL-REILLY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH CUSTOMER ACKNOWLEDGES THAT THE FEES ARE BASED IN PART UPON THESE LIMITATIONS. Without limiting the foregoing, Randall-Reilly shall not be liable for any loss or damage arising from, in whole or in part, or related to, any act or omission by Customer, including, but not limited to, (a) the use of any Product or other deliverable provided hereunder in combination with any third party services or products and/or (b) any breach of this Agreement.
5.4 Liability Limitation. 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 DETERMINATION. THE FOREGOING LIMITATIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. TERM AND TERMINATION
6.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will continue for the period set forth in the Sales Contract (such initial period being referred to herein as the “Initial Term”), unless earlier terminated as set forth herein. After the Initial Term, the Term shall automatically renew for successive 30-day periods (each a “Renewal Term”), unless either party gives notice to the other of non-renewal at least 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 granted hereunder, and its other performance under this Agreement or terminate this Agreement immediately if:
6.2.1 Customer fails to make any payment of an invoice from Randall-Reilly when due;
6.2.2 Customer or any Authorized User breaches Section 3 of this Agreement; or
6.2.3 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.
6.3 Effect of Suspension/Termination. Upon any termination or suspension of this Agreement, (a) all licenses granted by Randall-Reilly hereunder shall terminate, (b) Randall-Reilly shall discontinue access to and delivery of each Product, (c) Customer shall pay Randall-Reilly for all Fees incurred up to the date of any such suspension or termination, and (d) Customer shall promptly discontinue all of its uses of any and all of the Products, and all records included therein (and any portions thereof) and promptly destroy all of the applicable Products and all copies and portions thereof, in all forms and types of media, in its possession or under its control, including any such items provided to its employees, agents or subcontractors, and shall, upon request from Randall-Reilly, confirm such destruction in writing to Randall-Reilly, and (e) Customer shall have no further access to any reports and Randall-Reilly shall have no obligation to make any reports available to Customer upon termination or suspension of this Agreement. Additionally, for any termination during the Initial Term (whether for breach or otherwise), Customer shall remit to Randall-Reilly an early-termination fee, in an amount equal to the product of (i) the monthly fee provided in the Sales Contract, and (ii) the number of remaining months in the Initial Term. Suspension and termination are not exclusive remedies and the exercise by Randall-Reilly of any remedy under this Agreement will be without prejudice to any other remedies it may have by law or otherwise.
6.4 Survival. The rights and obligations of the parties contained in Section 1.6 and Sections 2 through 7 will survive any suspension or termination of this Agreement.
7.1 Injunctive Relief. Customer acknowledges and agrees that the breach or threatened breach of Sections 1.6 or 3 would cause irreparable harm to Randall-Reilly, the extent of which would be difficult to ascertain. Accordingly, Customer agrees that, in addition to any other remedies to which Randall-Reilly may be legally entitled, Randall-Reilly may seek immediate injunctive relief without the necessity to post a bond therefore in the event of a breach or threatened breach of such sections by Customer, any Covered Entity or any of the employees or contractors thereof.
7.2 Compliance Audits. Randall-Reilly shall have the absolute right, during the Term and for up to one (1) year after any termination of this Agreement, to audit and inspect all of systems, books, records and other materials of the Customer and any other Covered Entity that are or may be relevant or relate to compliance with the terms of this Agreement, and shall have access to the officers and employees involved with access, use and distribution of the Products (each as applicable), during normal business hours and, where possible, upon advance notice. Randall-Reilly will bear its own costs of any requested audit, unless Customer, any Authorized User or any Covered Entity is shown to have failed to honor use limitations or other obligations undertaken pursuant to this Agreement, in which event the cost and expenses of such audit shall be borne by Customer.
7.3 Publicity. Except as mutually agreed by the parties hereto, no publicity of the terms or existence of this Agreement shall occur unless agreed upon in writing.
7.4 Assignment. Neither party may assign this Agreement or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other and any such purported assignment or delegation shall be void. Notwithstanding the foregoing, Randall-Reilly may assign this Agreement to any of its Affiliates or in connection with the sale or other transfer of all or substantially all of the assets of Randall-Reilly or 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 of this Agreement.
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.
APPENDIX 1 DEFINITIONS
“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. With respect to Customer, the term “Affiliate” shall mean the Customer and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Customer. For the purpose of this Agreement, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Users” has the meaning set forth in the Sales Contract, provided, however, that if such term is not separately defined in the Sales Contract, “Authorized Users” shall mean the direct employees of Customer 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, sister company, subsidiary company, third parties, including but not limited to any representatives, agents, or contractors of Customer or any of the foregoing.
“Covered Entities” means the Persons set forth in the Sales Contract as permitted to access the Products under this Agreement; provided, however, that if such term is not separately defined in the Sales Contract, “Covered Entities” shall solely mean Customer.
“Damages” means actions, causes of action, claims, demands, losses, expenses, damages and costs whatsoever (including, without limitation, reasonable attorney’s fees).
“Effective Date” means the date set forth in the Sales Contract as the commencement date for access to the Products by Customer provided, however, that if no such date is provided in the Sales Contract, “Effective Date” shall mean the latest of the date of execution of the Sales Contract by Customer or by Randall-Reilly.
“Intellectual Property Rights” means copyrights, ancillary rights and sui generis rights (e.g., database rights) existing under applicable copyright laws, Trademarks, domain names, trade secrets, know-how, patent rights (including patent applications and disclosures), any goodwill associated with any of the foregoing and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Open-Source Components” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Product(s)” means the products specified in the Sales Contract, any items defined as Products in any Exhibit hereto and any proprietary tools provided by Randall-Reilly for access to such products.
“Representative” means any contractor, vendor, representative or agent of such party.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Randall-Reilly, including any third-party: (a) documents, data, content or specifications; (b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“Trademarks” means any trademarks, service marks, trade names, word, name, symbol or device used by a Person to identify its goods or services, whether or not registered, and any right that may exist to obtain a registration with respect thereto.