Last Modified: August 07, 2023
These TERMS AND CONDITIONS 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 regarding Randall-Reilly’s provision of Digital Services to 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 Digital Services 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, any exhibit and these Terms and Conditions, the Sales Contract shall control. This Agreement may be amended or modified only by a written instrument.
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 Digital Services after any changes have been posted hereto shall constitute Customer’s agreement to all such changes.
1.1. SERVICES. Subject to the terms and conditions set forth herein, Randall-Reilly shall provide the marketing services, campaigns, advertising, and programs (collectively, the “Digital Services”) set forth in the Sales Contract made subject to these Terms and Conditions and executed by both Parties hereto.
1.2. AUTHORIZATION. Customer authorizes Randall-Reilly to act on behalf of Customer and grants Randall-Reilly all rights necessary to facilitate the provision of the Digital Services. Customer agrees to comply with all reasonable requests of Randall-Reilly necessary for the performance of the Digital Services.
1.3. BOOKING AND ACCEPTANCE OF ADVERTISING. Randall-Reilly reserves the right, in its absolute and sole discretion, and at any time, to reject, cancel, or remove any ads or other content as part of the Digital Services from the applicable platform that it considers inappropriate or that is contrary to Randall-Reilly’s policies, whether or not the same has previously been accepted or run. Such cancellation or rejection on the part of Randall-Reilly shall not preclude payment by Customer for ads previously run. All Sales Contracts for Digital Services are accepted subject to the provisions of Randall-Reilly’s current rates. Rates are subject to change upon reasonable notice from Randall-Reilly to Customer.
1.4. ADVERTISING MATERIAL. With respect to any information submitted by Customer to Randall-Reilly that will be used for advertising purposes within the campaign, including elements such as images, videos, audio files, text copy, logos, brand guidelines, or any other creative components necessary for developing and executing the advertising campaign (collectively “Advertising Material”), Customer expressly acknowledges and agrees that (a) all Advertising Material is subject to Randall-Reilly’s approval in its sole discretion; and (b) Randall-Reilly reserves the right, in its sole discretion, to reject or cancel any Advertising Material at any time. Customer: (i) must (and represents and warrants that it does and shall) have all necessary rights to include such equipment or other campaign subjects within any and all Advertising Material; and (ii) Customer acknowledges and agrees that it is (and shall be) solely responsible for providing information accurately representing all applicable equipment, campaign subjects, and other information within such Advertising Material (including but not limited to price, color, condition, features). Randall-Reilly shall not have any liability whatsoever for any inaccuracies in any Advertising Material submitted hereunder.
1.5. CAMPAIGN CONDITIONS. In the event that Randall-Reilly’s provision of the Digital Services under-delivers ads or otherwise does not meet Customer’s campaign conditions set forth in the Sales Contract due to circumstances within Randall-Reilly’s control, at the election of Randall-Reilly, in its sole discretion, Randall-Reilly shall either (i) make-good for any discrepancy, within thirty (30) days after the end of the Campaign as specified in the Sales Contract, or (ii) require payment by Customer only for those Digital Services actually provided by the end date of the Campaign. Customer hereby agrees to pay for all Digital Services provided in accordance with the terms of the Agreement, including Section 2 below, even if such Digital Services are a “make good” provided after the end date of the Campaign.
1.6. CANCELLATIONS. In the event that Customer desires to cancel its obligation under this Agreement or any Sales Contract, Customer must provide at least thirty (30) days’ written notice of such cancellation prior to commencement of any sponsorship campaign, and such cancellation shall be effective upon receipt and acknowledgement by Randall-Reilly (“Cancellation Effective Date”). Customer acknowledges that, upon such notice of cancellation as provided in this Section, Customer shall be solely responsible for any Fees incurred by Randall-Reilly prior to the Cancellation Effective Date. Customer further acknowledges that, in the event of any early cancellation prior to the expiration of a given Term, Customer shall also be responsible for any Fees that would have been due for the remainder of the Term.
1.7. THIRD PARTY PLATFORMS. Customer acknowledges that Randall-Reilly does not accept any responsibility or liability for the performance, policies, or actions of any third-party digital marketing networks or platforms including, but not limited to, search engines, display networks, social networks or directories (collectively “Third Party Platforms”). Customer acknowledges that Third Party Platforms may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions which may impact the Digital Services at their discretion. Customer agrees that Randall-Reilly shall not be responsible or liable for any of the foregoing.
2.1. FEES; PAYMENT. All 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. With respect to a given advertising campaign (a “Campaign”), unless otherwise set forth in the Sales Contract, Customer must pre-pay the full amount of the Campaign prior to its scheduled run if Randall-Reilly determines, in its sole discretion, not to extend credit to Customer for the Campaign. 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. Randall-Reilly reserves the right to refuse providing further Digital Services to Customers with overdue accounts.
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. CONFIDENTIAL INFORMATION. Each party acknowledges that it and its employees, agents, representatives and contractors, and their respective successors and assigns (collectively, “Receiving Party”) may be exposed to or acquire information that is proprietary or confidential to the other Party (“Disclosing Party”) in connection with the performance of the Agreement (collectively “Confidential Information”). The Receiving Party shall hold such Confidential Information in strict confidence and shall not use or disclose any such Confidential Information to any third-party other than as required to perform the Agreement and provide or use the Digital Services. Confidential Information includes, without limitation: (a) any technical information, design, process, procedure, formula, or improvement, as well as any formulae, specifications, business or work processes and procedures, instructions, and other data relating to the Disclosing Party’s business, services or products; (b) the business plans and financial information of the Disclosing Party, regardless of whether such information would be protected at common law; and (c) such other information that, due to its nature, the Receiving Party knows or should have known the same was the proprietary or confidential information of the Disclosing Party. Each party, as the Receiving Party, will and will cause any and all persons or entities that have access to Confidential Information by or through such Receiving Party to observe and comply with the terms of the confidentiality provisions and obligations hereunder as if they were parties to the Agreement. The financial terms of the Agreement that are not otherwise publicly available may not be disclosed to any third-party, except to a party’s legal or accounting firms or as required by regulators with jurisdiction over Customer’s or Randall-Reilly’s businesses, without the prior written consent of the Disclosing Party.
3.2. EXCLUSIONS. Notwithstanding Section 3.1, Confidential Information does not include the following: (i) information that at the time of disclosure is or was, without fault of the Receiving Party, available to the public by publication or otherwise; (ii) information that the Receiving Party can show was independently developed or that was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Disclosing Party; (iii) received from a third-party with the right to transmit same without violation of any confidentiality agreement; and (iv) information that must be disclosed pursuant to court order or by legal or administrative process; provided, however, that if information must be disclosed pursuant to court order or by legal or administrative process, the Receiving Party shall inform the Disclosing Party of such requirement (unless prohibited by law) and shall cooperate with the Disclosing Party in seeking a protective order or other limitation on disclosure.
4.1. OWNERSHIP. As between the Parties, each Party is and will remain the sole and exclusive owner of all right, title, and interest in and to any Intellectual Property Rights it owns prior to the commencement of the Digital Services or that it develops or acquires thereafter. “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.
4.2. LICENSE TO DELIVERABLES. Randall-Reilly grants Customer a non-exclusive, non-transferable license to use the work product and other materials developed and delivered to Customer by Randall-Reilly in the course of performing the Digital Services.
4.3. NO TRANSFER. Except as expressly provided otherwise in a Sales Contract, nothing herein shall be deemed to transfer, convey, or grant any rights, title, or interest in any Intellectual Property Rights to the other Party.
5.1. CUSTOMER REPRESENTATIONS. Customer represents and warrants that publication by the Randall-Reilly of any Advertising Materials submitted on or on behalf of Customer as part of the Digital Services will not (i) violate any rights of any third-party, including without limitation any copyrights or rights of privacy, (ii) contain any statement that is false, misleading or defamatory, or (iii) violate any applicable laws, rules, or regulations.
5.2. WARRANTY DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL DIGITAL SERVICES ARE 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 DIGITAL SERVICES. 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.
6.1. LIMITATION OF LIABILITY. Randall-Reilly shall not be liable for the acts or omissions of any advertiser or content provider or the content of any advertisement, web site, or web page. In the event that Randall-Reilly fails to display any ads in accordance with the Agreement (or in the event of any other failure, technical or otherwise), the sole liability of Randall-Reilly and exclusive remedy of Customer shall be limited to either a refund for the Campaign or placement of “make-good” advertising within thirty (30) days from the end of the Campaign as specified in Section 1, at the election of Randall-Reilly. Notwithstanding the foregoing, Randall-Reilly shall have no liability for (i) any failure or delay resulting from conditions beyond Randall-Reilly’s control; (ii) any failure to provide reference or access to all or any part of the Digital Services due to systems failures or other technological failures of Randall-Reilly or of the internet; (iii) delays in delivery or non-delivery of a Campaign, including, without limitation, difficulties with a participating site, difficulties with a third-party server, or electronic malfunction; or (iv) errors in content or omissions in any creative or advertising materials provided by Customer. In no event shall Randall-Reilly be liable for special, indirect, incidental or consequential damages.
6.2. INDEMNIFICATION BY CUSTOMER. Customer agrees to indemnify, defend and hold harmless Randall-Reilly from and against any and all losses, liabilities and damages, and all costs and expenses relating to such losses, liabilities and damages (including, without limitation, costs of investigation; costs of litigation; court costs; penalties; fines; taxes; charges; fees; settlements; licensing fees; judgments; discovery costs; consultants’, experts’, and witnesses’ fees and expenses; interest; and reasonable attorney fees and expenses) (collectively, “Losses”)arising, directly or indirectly, out of: (i) Customer’s breach of the Agreement or failure to perform hereunder, including but not limited to any representation, warranty, covenant, acknowledgement, agreement, duty, obligation, or undertaking hereunder on the part of Customer; (ii) Customer’s use of the Digital Services in a manner not authorized by the Agreement; (iii) any third-party allegation, claim, or demand that Customer or any data, information, or software owned or licensed by Customer used in connection with the Digital Services, including but not limited to any Advertising Material provided by Customer hereunder, infringes upon its U.S. Intellectual Property Rights; and (iv) Customer’s alleged negligence, recklessness or intentional misconduct in connection with the performance of its obligations under this Agreement.
6.3. INDEMNIFICATION BY RANDALL REILLY. Randall-Reilly agrees to indemnify, defend, and hold harmless Customer from and against any Losses arising, directly or indirectly, out of or relating to 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 Deliverables (other than any third-party materials contained therein), provided that Randall-Reilly shall have no liability for any Losses to the extent that such Losses have arisen due to (i) the combination or integration of such Deliverables or any of Randall-Reilly’s other services, solutions, information or technology with services, solutions, information or technology not provided by Randall-Reilly, (ii) use, reproduction, distribution, display or disclosure of such product other than in accordance with the terms of this Agreement, (iii) the modification of the Deliverables or Digital Services by or at the direction of Customer or use or distribution thereof in a manner not contemplated by this Agreement or (iv) the fraud or willful misconduct of Customer.
7.1. TERM. The term of this Agreement will begin on the effective date and will continue for the period set forth in the Sales Contract, or if no specific period is set forth in the Sales Contract, then until completion of the Digital Services specified therein, unless it is earlier terminated in accordance with the terms of this Agreement.
7.2. TERMINATION/SUSPENSION FOR BREACH. In its sole discretion, Randall-Reilly may temporarily suspend its provision of Digital Services, including any or all campaigns, licenses and/or access rights granted hereunder, and its other performance obligations under this Agreement or terminate this Agreement immediately if: (a) Customer fails to make any payment of an invoice from Randall-Reilly when due; or (b) Customer breaches a material term of this Agreement and fails to cure such breach within 30 days of notice thereof by Randall Reilly to Customer.
7.3. EARLY CANCELLATION FEES. In the event of any early cancellation or termination by Customer prior to the end of a specified Term, Customer acknowledges that it will be fully responsible for paying all Fees remaining for such Term.
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 and any of its rights hereunder with or without such consent to any of its affiliates or, in the case of a merger, reorganization, acquisition, consolidation, or sale of all or a majority of the stock or assets, directly or indirectly, of Randall-Reilly, to the purchaser or the surviving entity, as the case may be. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
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.
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.
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.
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.
If Randall-Reilly institutes any legal suit, action, or proceeding against Customer to enforce this Agreement (or obtain any other remedy regarding any breach of this Agreement) or that may arise out of or relating to this Agreement, including, but not limited to, contract, equity, tort, fraud, and statutory claims, Randall-Reilly in the suit, action or proceeding is entitled to claim as a recovery against the Customer, in addition to all other remedies to which Randall-Reilly may be entitled, the costs and expenses incurred by Randall-Reilly in conducting or defending the suit, action, or proceeding, including attorneys' fees and expenses, and court costs, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post-judgment proceedings).
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).
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.