Last Modified: May 1, 2024
These RECRUITING SERVICES MASTER TERMS AND CONDITIONS, including without limitation the General Terms and Conditions set forth in Section 1 and the Specific Terms and Conditions set forth in Section 2, Section 3, and Section 4 hereof (collectively, the “Terms and Conditions”) govern the provision of the Services by Randall Reilly Talent, LLC, a Delaware limited liability company (“Randall Reilly”), to the customer (“Client”) named in a sales contract, order, quote or statement of work (collectively, a “Sales Contract”), along with any person or entity for whom access to the Services has been purchased by Client (“Authorized User”) (Client and Authorized User, and the direct employees of each, being collectively referred to as the “Customer”). RandallReilly and Customer are sometimes collectively referred to herein as the “Parties,” and individually as a “Party.” Each Sales Contract, these Terms and Conditions, and all exhibits, appendices and schedules (collectively, the “Agreement”) constitute an independent and separate contract between the Parties for the Services specified in the Sales Contract. The recruiting services subject to these Terms and Conditions may include, without limitation, digital marketing, content marketing, custom events, search engine optimization (“SEO”) consulting, data information on candidates, process information on candidates, recruiting consulting, software-as-a-service offerings, electronic access to through a Randall Reilly website (the “Site”) or one or more downloadable mobile applications or desktop client applications (the “Apps”), access to the collection of applicant information and records made available to Customer via the Site or Apps (the “Licensed Database”), access to the web-based software via the Site or Apps for reviewing, analyzing and otherwise working with the Licensed Database (the “Licensed Software”), Recruitment Process Outsourcing services (“RPO Services”), or other services set forth in a Sales Contract (collectively, the “Services”). The Services include, as applicable, access to and use of Randall Reilly’s user manuals, instructions, handbooks, end user documentation and guides, and other documents and materials relating to the Services that are provided or made available by Randall Reilly to the Customer in any form which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof (collectively, “Documentation”). In addition to the terms and conditions of this Agreement and any access limitations set forth in the applicable Sales Contract, the terms and conditions as set forth at the Site or in conjunction with the Apps, if any, shall apply to any use of the Site or the Apps. 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). By using the Services, Customer accepts and agrees to be bound and abide by this Agreement as well as Randall Reilly’s Privacy Policy (located at https://www.randallreilly.com/legal/website-terms-and-privacy-policy/) and incorporated herein by reference. In the event of a conflict between the terms of this Agreement and the terms and conditions as set forth at a Site or in conjunction with the Apps, this Agreement shall control. These Terms and Conditions alone do not obligate the Parties to purchase or sell any Services, and the Parties intend to create such obligations only on the Effective Date of a binding Agreement by the Parties. The Agreement shall be effective and binding on the earlier of the (a) date set forth in the Sales Contract as the commencement date for access to the Services by Customer or (b) date on which the Customer executes the Sales Contract without alteration or accepts any provision of the Services, either by partial performance, partial or full payment, or any other expression of acceptance or availment of the benefits of the Services (the “Effective Date”). On the Effective Date, the Agreement constitutes the entire agreement between the Parties with respect to the Services and fully supersedes any other agreements or understandings between the Parties with respect to the Services and any previous representations made by Randall Reilly. Customer acknowledges and agrees that it has read, understood, and agrees to be bound by the terms and conditions of the Agreement. Randall Reilly’s provision of Services is subject to and expressly conditioned upon Customer’s acceptance of this Agreement, which expressly includes these Terms and Conditions. Randall Reilly rejects any terms or conditions offered by Customer at any time in any fashion that are in addition to or inconsistent with these Terms and Conditions or the Agreement, whether or not such terms or conditions materially alter these Terms and Conditions or the Agreement, and regardless of provision of the Services or acceptance of payment. This Agreement, including these Terms and Conditions, shall prevail over any terms or conditions offered by Customer at any time. Randall Reilly reserves the right to deny or terminate access to the Services by any Customer who does not comply with the terms of the Agreement or who otherwise uses the Services in a manner deemed to be inappropriate by Randall Reilly, in its sole discretion, as provided herein. 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 these Terms and Conditions at any time, in its sole discretion as set forth in Section 1.29 (Amendment).
1. GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL SERVICES
2. SPECIFIC TERMS APPLICABLE TO RECRUITING LEAD PROCESSING SERVICES
3. SPECIFIC TERMS APPLICABLE TO DIGITAL SERVICES
4. SPECIFIC TERMS APPLICABLE TO STRATAS SERVICES
5. SPECIFIC TERMS APPLICABLE TO RPO SERVICES
1.1 INITIAL TERM, RENEWAL, AND TERMINATION. Unless set forth to the contrary in the Sales Contract, the initial term of the Agreement shall begin on the Effective Date and shall end on the expiration date set forth in the Sales Contract, unless sooner terminated as provided therein (the “Initial Term”). Upon expiration of the Initial Term, unless set forth to the contrary in the Sales Contract, the Agreement shall automatically renew for successive terms equal in length to the Initial Term (each a “Renewal Term” and together with the Initial Term, the “Term”). During any Renewal Term, the terms and conditions of the Agreement shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to applicable changes in Fees (as defined in Section 1.2). If either Party provides notice of its intent not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current Term, then the Agreement shall terminate on the expiration of the then-current Term. Either Party, in its sole discretion, may terminate the Agreement at any time, with or without cause, by providing at least thirty (30) days' prior written notice to the other Party. Such termination shall not excuse the Parties from any obligation or liability under the Agreement that accrues prior to or upon the effective date of termination, or that expressly survives termination or expiration of the Agreement.
1.2 PRICING, PAYMENT, AND TAXES. (a) Fees. The fees and other amounts due for the Services provided pursuant to the Agreement (“Fees”) shall be set forth in the Sales Contract. Except as otherwise provided herein or in the Sales Contract, Randall Reilly shall issue an invoice to Customer for all Fees due and owing under the Agreement at the conclusion of any month in which Services were delivered. Customer shall pay all invoiced amounts to Randall Reilly within thirty (30) days from the date of such invoice (the “Due Date”). All payments hereunder shall be in US dollars and made by check or electronic transfer to an account designated by Randall Reilly. In Randall Reilly’s sole discretion, Randall Reilly may request Customer to 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. (b) Taxes. All Fees payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, excluding only taxes imposed on Randall Reilly’s income.
1.3 LATE FEES; SUSPENSION OF SERVICES. (a) Late Fees. If any invoice for Fees due hereunder is not paid in full within ten (10) days after the Due Date, then Customer shall also pay a late charge equal to the lesser of 1.5% per month, calculated daily and compounded monthly, of the unpaid balance of the invoice or the maximum lawful rate under Applicable Law (“Late Fee”). Customer shall reimburse Randall Reilly for all Late Fees and all costs incurred by Randall Reilly in collecting any Fees or Late Fees, including attorneys’ fees, court costs, and the fees of collection agencies. (b) Suspension of Services. If Customer’s failure to pay all Fees and other amounts owed to Randall Reilly under the Agreement when due continues for thirty (30) days or more, Randall Reilly may, in addition to any other remedies available at law or in equity, suspend Services until full payment is made. Customer shall pay a reasonable reactivation fee for Services restoration, to be determined by Randall Reilly. Randall Reilly’s right to suspend Services under this Section is in addition to Randall Reilly’s right to terminate the Agreement for non-payment as provided herein.
1.4 CREDIT INVESTIGATION. By execution of the Agreement, Customer authorizes Randall Reilly to investigate into its creditworthiness and payment history, including obtaining credit histories and making inquiries of other businesses, banks, and lending institutions concerning the creditworthiness or payment history of Customer. Customer hereby releases Randall Reilly from any and all Losses (as defined in Section 1.16(a)) incurred by Randall Reilly or the Randall Reilly Parties in connection with such investigation and, pursuant to Section 1.16(a) agrees to indemnify, hold harmless, and at Randall Reilly’s direction defend, Randall Reilly and the Randall Reilly Parties from any and all Losses arising out of or relating to such investigation. Customer acknowledges and agrees that Randall Reilly may terminate the Agreement any time before the expiration of the Term in the event Randall Reilly determines in its sole discretion that Customer’s creditworthiness is not acceptable.
1.5 ACCESS AND USE.
(a) Access and Use. Subject to and conditioned on Customer's payment of Fees and compliance with all terms and conditions of the Agreement, Randall Reilly hereby grants Customer a non-exclusive, non-transferable right to access and use the Services, including the Documentation, during the Term, solely for Customer’s internal business uses in accordance with the terms and conditions herein. At any time and from time to time, Randall Reilly may, in its reasonable discretion, unilaterally change the specific features or functionality of the Services. Randall Reilly shall provide to Customer the necessary access codes, passwords and network links or connections to allow Customer to access the Services. Customer shall only use the Services and Documentation in accordance with (i) the terms and provisions of this Agreement, including any use restrictions set forth in the Sales Contract (including, but not limited to, Section 1.7), (ii) all Applicable Laws, and any contractual commitments of Customer, and (iii) 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. Customer may reproduce the Licensed Database and the records included therein (and any portions thereof) solely for its own internal use. 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 the Licensed Database or any portion thereof, to any third party. Customer shall be and remain fully responsible to Randall Reilly for any violation of the limitations and restrictions set forth in this Section 1.5 or any other terms and conditions of this Agreement by any Customer.
(b) Applicant Access. The term “Applicant” shall mean an individual applicant for employment or engagement as an independent contractor that has individually registered to use the Services. Each Applicant’s rights, duties and obligations with respect to accessing and using the Services are governed by the applicable terms of service accepted and agreed to by such Applicants during registration.
1.6 AGGREGATED STATISTICS. Notwithstanding anything to the contrary in the Agreement, Randall Reilly may monitor Customer's use of the Services and collect and compile data and information related to Customer’s use of the Services. Randall Reilly may use such data and information in an aggregated and anonymized manner, including, without limitation, to compile statistical and performance information related to the provision and operation of the (Services “Aggregated Statistics”). As between Randall Reilly and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are owned and retained solely by Randall Reilly. Customer acknowledges that Randall Reilly may compile Aggregated Statistics based on Customer data input into the Services. Customer agrees that Randall Reilly may (a) make Aggregated Statistics publicly available in compliance with Applicable Law, and (b) use Aggregated Statistics to the extent and in the manner permitted under Applicable Law.
1.7 RESTRICTIONS ON USE. Customer shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Customer shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Services, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services; (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity (“Person”), or that violates any applicable local, state, national, or international law (collectively, “Applicable Law”); (f) 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 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 (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed there; (g) bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used in connection with the Services; (h) attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (i) the Services, (ii) any server, computer or database connected to the Services, or (iii) Randall Reilly’s ability to provide services to any other Person; (i) use any robot, spider or other automatic device, process or means to access the Services, including for monitoring or copying any of the content or information available through the Services; (j) send, receive, upload, download, use or re-use any material that does not comply with this Agreement; (k) access or use the Services for purposes of (i) benchmarking or competitive analysis, (ii) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Services, or (iii) disclosing to Randall Reilly’s competitors, for any purpose, otherwise non-public information about the Services; (l) violate any additional use restrictions or limitations on use that may be further specified in the Sales Contract; (m) use the Services in any manner that seeks to avoid Customer’s obligation to pay the Fees for the Services; or (n) knowingly aid or assist any Person in taking any of the actions prohibited by this Section 1.7, Section 1.5(a), or elsewhere herein. Customer must immediately notify Randall Reilly should Customer learn that Customer or any other Person has taken any action prohibited by this Section 1.7. If Randall Reilly, in its sole discretion, has reason to believe that Customer is using Services in violation of the Agreement, abusing the Services, or using them fraudulently or unlawfully, Randall Reilly reserves the right to terminate, suspend or restrict the Services immediately and without advance notice to Customer. If Randall Reilly terminates for such violations, Customer shall be responsible for all outstanding balances due for the Services, unbilled Fees under the Sales Contract, a disconnect fee, if applicable, and a Termination Fee (as defined in Section 1.19(b)), if applicable, all of which shall become immediately due and payable.
1.8 USE OUTSIDE UNITED STATES. Except as otherwise provided herein, if Customer uses the Services from another country, Customer does so at Customer’s own risk, including the risk that such activity violates any Applicable Law of the country in which Customer does so. Customer is liable for any and all use of the Services by Customer. Should use of the Services from the United States violate any export control law or regulation, Customer will be solely liable for such violation, and shall indemnify Randall Reilly and the Randall Reilly Parties, pursuant to Section 1.16(a), for any and all Losses arising from or relating to such violation or usage of the Services from another country.
1.9 NO RESALE OR TRANSFER. Customer is prohibited from reselling or transferring the Services to any other Person for any purpose, without the express prior written consent of Randall Reilly.
1.10 SERVICE PROVIDER. This Section of the Agreement is for the purpose of ensuring compliance with the California Consumer Privacy Act of 2018, Cal. Civ. Code § 1798.100 et seq. (the “CCPA”). The terms used in this Section shall have the meanings set forth below. Terms not otherwise defined herein shall have the meaning given to them otherwise in the Agreement, the CCPA, or their plain and ordinary meaning. Except as modified below, the terms of the Agreement shall remain in full force and effect.
(a) Definitions. In this Section 1.10, the following terms shall have the meanings set forth below:
1. “Personal Information” means any personal information, as defined under the CCPA, Processed by Randall Reilly as a Service Provider, as defined by the CCPA, on behalf of Customer or its affiliates pursuant to or in connection with the Agreement.
2. “Processed” or “Processing” means any operation or set of operations performed on Personal Information by Randall Reilly as a Service Provider on behalf of Customer.
(b) Processing of Personal Information. When acting as a Service Provider for Customer, Randall Reilly agrees that it will not retain, use, or disclose Personal Information for any purpose, including for any commercial purpose, other than for the specific purpose of performing the Services specified in the Agreement for Customer, or as otherwise permitted by the CCPA or by the regulations promulgated by the California Attorney General pursuant to Cal. Civ. Code § 1798.185.
1.11 INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK. (a) Randall Reilly Intellectual Property. Customer expressly acknowledges and agrees that, as between Randall Reilly and Customer, Randall Reilly owns all right, title, and interest, including but not limited to all intellectual property rights existing under applicable copyright laws, trademarks, service marks, trade dress, domain names, trade secrets, know-how, patent rights (including patent application and disclosures), any goodwill associated with any of the foregoing recognized in any country or jurisdiction in the world, in and to the Services, the Documentation, and any and all intellectual property provided to Customer or any of its employees, affiliates, or representatives in connection with the Services, as well as Aggregated Statistics and any information, data, or other content derived from Randall Reilly’s monitoring of Customer’s access to or use of the Services (collectively, the “Randall Reilly IP”). With respect to any third-party products, if any, described in the Sales Contract, Customer expressly acknowledges that the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party products. (b) Customer Rights. Except for any rights expressly granted in the Agreement, Customer owns and will continue to own, and the Agreement does not transfer from Customer to Randall Reilly any right, title or interest in or to any process, system, software, service, or device in which Customer has any intellectual property rights or other ownership or use rights. If Customer decides to use the Services through an interface device not provided by Randall Reilly, which Randall Reilly reserves the right to prohibit in particular cases or generally, Customer warrants and represents that it possess all required rights, including software and firmware licenses, as applicable, to use the interface device with the Services. (c) Services Software. Where applicable, Randall Reilly may install certain software and technology owned by Randall Reilly or third-parties on equipment in Customer’s network to deliver Services (collectively, “Services Software”). Randall Reilly owns or has a license or other rights to allow use of such Services Software to deliver the Services. Randall Reilly hereby grants to Customer a limited, non-exclusive, nontransferable, personal license to use the Services Software on the equipment for the Term of the Agreement in connection with its use of the Services and strictly in accordance with the Agreement subject to all applicable third-party software license terms and requirements. Customer shall not reverse engineer, reverse compile, decompile, or otherwise attempt to derive the source code from the binary code of the Services Software. (d) Open-Source License. Customer acknowledges and agrees that the Services, 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 any open-source components shall be governed by, and subject to, the terms and conditions of such Open-Source License(s). (e) No Exclusivity. Customer may obtain services similar to the Services from third-parties, and Randall Reilly may provide services, products, and technology owned by Randall Reilly to third-parties, without restriction or accounting to the other Party. (f) Feedback. If Customer, at any time during the Term, provides Randall Reilly with comments, suggestions or other feedback relating to the Services (collectively, “Feedback”), Randall Reilly is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer, individually and on behalf of its employees, contractors, and representatives hereby assigns all right, title, and interest in, and Randall Reilly is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Randall Reilly is not required to use any Feedback.
1.12 CONFIDENTIALITY; NON-DISCLOSURE.
(a) Non-Disclosure Agreement. If the Parties have executed a separate Confidentiality and Non-Disclosure Agreement (“NDA”), the terms and provisions of such NDA are incorporated herein by reference, and the Parties agree that such NDA sets forth the obligations and responsibilities of the Parties regarding the use, treatment, and disclosure of certain confidential and proprietary information of the Parties. If there is a conflict between the terms of the NDA and the terms of the Agreement, the terms of the NDA shall govern and control to the extent of such conflict. The terms of the NDA shall survive the expiration or termination of the Agreement for any reason in accordance with the NDA’s terms and conditions. The Parties agree to cause any and all of their subcontractors and sub-servicers, if any, to observe the terms and provisions of the NDA as though they were Parties thereto, and the Parties shall be responsible for any breach of the NDA by or on behalf of their subcontractors or sub-servicers. Notwithstanding the foregoing, should the NDA expire or terminate while the Agreement is still in effect, the terms, conditions, representations, warranties, covenants, and agreements contained in the NDA will nevertheless continue to apply to the Agreement.
(b) Confidential Information. If the Parties have not executed a separate NDA, the terms of Section 1.12(b) through Section 1.12(c), inclusive, will apply. 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 (“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 Services. Confidential Information includes, without limitation: (i) 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; (ii) the business plans and financial information of the Disclosing Party, regardless of whether such information would be protected at common law; and (iii) 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. Customer’s Feedback relating to Services and Randall Reilly’s technology, even if designated as confidential by Customer, shall not, absent a separate written agreement, create any confidentiality obligation for or upon Randall Reilly, and Randall Reilly will own and may utilize the same as set forth in Section 11.1(b). 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.
(c) Non-Confidential Information. Notwithstanding Section 1.12(b), 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 in its possession at the time of disclosure and was not acquired, directly or indirectly, from the Disclosing Party; (iii) information 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. Notwithstanding anything herein to the contrary, however, personally identifiable information and protected health information (collectively, “Personal Information”) and trade secrets of Disclosing Party shall always be Confidential Information.
1.13 VENDOR TERMS OF USE. Randall Reilly is an authorized reseller and sub-licensor of certain third-party software and third-party equipment provided by third-party vendors, manufacturers and developers unrelated to Randall Reilly (collectively, “Vendors”). All intellectual property rights of Vendors relating to the Services or components thereof are and shall remain the exclusive property of Vendors or their licensors. Vendor terms and conditions of sale or license may apply to the Services provided by Randall Reilly to Customer under the Agreement, and such Vendor terms and conditions are incorporated herein by reference. For the purpose of clarity, such Vendor terms and conditions supplement but do not supersede these Terms and Conditions, and, in the event of a conflict between the terms of any Vendor terms and conditions and these Terms and Conditions, these Terms and Conditions shall control. A copy of certain Vendor terms and conditions are available upon written request by Customer.
1.14 CUSTOMER CONTENT.
(a) Content License. Customer may be afforded the opportunity to post, submit, publish, display, transmit, or otherwise provide to other users or other Persons, or for Customer’s own use (hereinafter “Post”), content or materials on or through a Site, Apps, or otherwise in conjunction with the Services (collectively, “Customer Content”). During the Term, Customer hereby grants to Randall Reilly and its subcontractors all such rights and permissions in or relating to the Customer’s Content as are necessary to perform its obligations under this Agreement, including providing the Services to Customer and hosting content for Customer. Customer shall be solely responsible for (i) securing all rights, permissions and consents necessary to grant Randall Reilly and its subcontractors access to or use of any its content, and (ii) the accuracy, quality, legality and appropriateness of all of its content. Customer agrees that Randall Reilly may use Customer Content to the extent and in the manner permitted under Applicable Law, including disclosure to third-parties, or in conjunction with Services provided to other Randall Reilly customers.
(b) Use of Applicant Information. By interacting with Applicants via the Services, Customer may come into possession of certain personal information and nonpublic information collected from Applicants (“Applicant Information”). Prior to collecting or otherwise processing any Applicant Information using the Services, Customer must ensure that it has: (i) provided accurate and complete disclosures regarding its collection, use and disclosure of such Applicant Information, such as by Posting a privacy policy in a clear and conspicuous location; (ii) provided every type of notice and obtained every type of consent required by applicable local, state, federal, foreign or international data privacy, data security and/or breach notification laws, treaties, regulations or conventions (“Privacy Laws”) in relation to its collection and processing of Applicant Information; and (iii) complied in all respects with all Applicable Law in its collection and processing of all Applicant Information (including, for the avoidance of doubt, all associated Personal Information). As between Randall Reilly and Customer, Customer is solely responsible for compliance with (b)(i) – (b)(iii) herein. Additionally, Customer agrees (A) to use commercially reasonable measures to protect the privacy and security of Applicant Information as appropriate for the type of information at issue, including heightened protection for personal information as required by Privacy Laws; (B) to process all Applicant Information only for the limited and specified purposes consistent with the disclosures that Customer has made to and/or consent that Customer has obtained from the Applicant; (C) not to use or disclose Applicant Information in any way inconsistent with Randall Reilly’s applicable Privacy Policies, available online at randallreilly.com/legal/website-terms-and-privacy-policy and randallreilly.com/legal/stratas-privacy-policy; (D) not to sell, lease or otherwise disclose Applicant Information to other third parties without the Applicant’s authorization; and (E) to immediately notify Randall Reilly if Customer makes a determination that it can no longer meet the obligations set forth in this Section 1.14 (and in such case immediately cease processing such Applicant Information or take reasonable and appropriate steps to remediate any unauthorized processing).
(c) Content Standards. In using the Services, Customer agrees that it shall not: (i) transmit any communications or materials that (A) are defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; (B) 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 (C) are false, misleading, or not provided in good faith; (ii) promote any illegal activity, or to advocate for, promote or assist in any unlawful act; (iii) 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 the Randall Reilly Parties); or (iv) 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
1.15 WARRANTIES AND DISCLAIMER. For the purpose of clarity, this Section 1.15 is in addition to the warranties and disclaimers contained in Section 2.3, Section 4.2, as applicable.
(a) Customer warrants that (a) Customer either owns, or has all rights, permissions and consents that are necessary to process, and to permit Randall Reilly, its subcontractors and the Services, Site and Apps to process all Content as contemplated in this Agreement; (b) Randall Reilly’s and its subcontractors’ access to and use of Customer’s content (including, for the avoidance of doubt, all Personal Information included with such 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 third party, or violate the privacy rights or other rights of any third party; (c) it has complied in all respects with all Applicable Law in its collection and processing of all Applicant Information (including, for the avoidance of doubt, all associated Personal Information) through the use of the Services, Site and Apps; (d) with respect to any Customer Content Posted via the Services by Customer, Customer has the right to Post such content publicly; and (e) its use of any Personal Information provided as a part of the Services, use for any calls and other interactions with potential recruits or Applicants, will comply with all Applicable Law, including, without limitation, the Communications Act of 1934, as amended, the Telephone Consumer Protection Act (“TCPA”) and implementing regulations issued by Federal Communications Commission, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), Canada’s Anti-Spam Legislation (“CASL”), Canada’s Telecommunications Act and the Unsolicited Telecommunications Rules issued by the Canadian Radio-television and Telecommunications Commission, and other Applicable Law and regulations governing the marketing, promotion, and sale of goods or services, including general consumer protection laws and regulations, or other consumer protection laws that prohibit unfair, deceptive, or misleading acts or practices (collectively, the “Consumer Protection Laws”). Without limiting the generality of the foregoing, Customer will not make any calls to any individual listed on any applicable Do-Not-Call (“DNC”) registry unless an exemption applies.
(b) ANY SERVICES, RESULTS OF SERVICES AND DOCUMENTATION PROVIDED BY RANDALL REILLY ARE PROVIDED “AS IS”, “AS AVAILABLE”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, RANDALL REILLY MAKES NO WARRANTIES TO CUSTOMER, AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES OF ANY NATURE ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR BASED ON COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER UNDERSTANDS AND ACCEPTS THAT THE USE OF THE SERVICES AND INFORMATION PROVIDED THROUGH THE SERVICES IS NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND ALL RISKS OF CONDITION, USE, QUALITY, OR FITNESS ARE SOLELY AND EXCLUSIVELY THAT OF CUSTOMER.
(c) WITHOUT LIMITING THE FOREGOING, RANDALL REILLY DOES NOT WARRANT THAT THE SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RANDALL REILLY, ITS AGENTS OR EMPLOYEES WILL IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTIES OR LIMIT ANY DISCLAIMER OF WARRANTIES UNDER THE AGREEMENT. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICES, IF ANY, BY RANDALL REILLY OR ITS AGENTS OR INSTALLERS ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. RANDALL REILLY DOES NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, RANDALL REILLY’S EMPLOYEES, AGENTS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON RANDALL REILLY’S BEHALF, AND CUSTOMER SHOULD NOT RELY ON ANY SUCH STATEMENT
1.16 INDEMNIFICATION. For the purpose of clarity, this Section 1.16 is in addition to the limitations contained in Section 5.2 or otherwise, as applicable:
(a) Customer shall indemnify, hold harmless, and at Randall Reilly’s direction defend, Randall Reilly, its affiliates, and its and their respective officers, directors, members, shareholders, employees, representatives, affiliates and agents (collectively, “Randall Reilly Parties”), and any other service provider who furnishes Services to Customer on behalf of any Randall Reilly Parties in connection with the Agreement, 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”), including, without limitation, Losses by virtue of third-party allegations, causes of action, claims, or demands, arising out of or relating to (i) Customer’s or its officers’, directors’, shareholders’, employees’, representatives’, affiliates’, and agents’ (collectively, “Customer Parties”) alleged 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 or the Customer Parties, (ii) Customer’s or Customer Parties’ alleged use of the Services in a manner not authorized by the Agreement, (iii) any third-party allegation, claim, or demand that Customer, Customer Parties, or any data, information, or software owned or licensed by Customer or Customer Parties (“Customer Material”) used in connection with the Services infringes upon its United States intellectual property rights, (iv) any dispute between Customer and one or more Applicants; (v) any damage to freight and equipment, (vi) any bodily injury, death, or property damage allegedly caused by Customer or Customer Parties, (vii) Customer’s or Customer Parties’ alleged negligence, recklessness or intentional misconduct, or (viii) Customer’s or Customer Parties’ employment of any individual based on a Lead provided pursuant to this Agreement, including, but not limited to, those arising out of or relating to (A) a third-party claim or investigation arising out of or relating to Customer’s activities with respect to an individual based on a Lead or information related to a Lead, (B) the possession, disclosure or use of such information, including without limitation, any consumer contact or information in connection therewith all of the foregoing including, but not limited to Losses that result solely or concurrently from Randall Reilly’s or the Randall Reilly Parties’ alleged negligence. Notwithstanding the foregoing, however, Customer shall not be obligated hereunder to the extent any such Losses are determined to arise out of the intentional misconduct or gross negligence of Randall Reilly or any of the Randall Reilly Parties.
(b) Randall Reilly will notify Customer in writing within a reasonable time after it determines that a claim may reasonably result in the indemnification of Randall Reilly hereunder. However, the failure or delay to notify Customer of an indemnification claim will not affect Customer’s indemnification obligations, except and only to the extent that Customer demonstrates that such failure or delay caused the Losses that Customer is obligated to pay under the Agreement to be greater than the Losses that would have been payable had Randall Reilly provided notice or notice at an earliest time, and then only to the extent of such demonstrated increased Losses. Upon receipt of written notification of an indemnification claim, Customer shall immediately take control of the defense and investigation of such claim and engage counsel reasonably satisfactory to Randall Reilly to handle and defend the indemnification claim, at Customer’s sole cost and expense. The Parties shall cooperate in all reasonable respects in the investigation, trial, defense, and settlement of any indemnification claim and any appeal arising therefrom. Randall Reilly may, at its own cost and expense, participate, through its own counsel or otherwise, in the investigation, preparation, trial, defense, and settlement of such claim and any appeal arising therefrom. Customer will not settle any claim without Randall Reilly’s prior written approval. Randall Reilly will not unreasonably delay, condition, or withhold its consent to a proposed settlement; provided that (i) such settlement proposal includes an express, complete release of Randall Reilly from any responsibility or liability arising from the subject matter relating to the claim, (ii) such proposed settlement does not involve a remedy other than the payment of money by Randall Reilly, and (iii) the proposed settlement does not have any likely negative impact on the reputation of Randall Reilly.
(c) Indemnification by Randall Reilly. Randall Reilly agrees to indemnify, defend and hold harmless Customer against any Losses arising, directly or indirectly, out of or relating to a claim by any third party of infringement of Randall Reilly IP, in each case to the extent attributable to the use or display by Customer of any Services (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 Services 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 failure of Customer to implement and use any maintenance releases or other revisions, corrections or modifications reasonably made available by Randall Reilly prior to such infringement or unauthorized use, (iv) the modification of the Product by or at the direction of Customer or use or distribution thereof in a manner not contemplated by this Agreement or (v) the fraud or willful misconduct of Customer. In the event that any Services, 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 Services 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 (A) procure for Customer and its permitted assigns the right to use such Services in accordance with the provisions of this Agreement or (B) replace or modify the applicable Services 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 Randall Reilly intellectual property.
1.17 LIMITATION OF LIABILITY. For the purpose of clarity, this Section 1.17 is in addition to the limitations contained in Section 3.6 or otherwise, as applicable.
(a) CUSTOMER AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, RANDALL REILLY WILL NOT BE LIABLE TO CUSTOMER, ANY CUSTOMER PARTIES, OR ANY THIRD-PARTY, REGARDLESS OF THE CAUSE OR ACTION, FOR: (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, RELIANCE OR THIRD-PARTY DAMAGES ARISING OUT OF OR RELATING TO ANY SERVICES, ANY INFORMATION RANDALL REILLY PROVIDES IN CONNECTION THEREWITH, THE AGREEMENT OR ANY MATTERS RELATING THERETO, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, PROFITS, BUSINESS OPPORTUNITY, SAVINGS, PRODUCTIVITY AND DATA, LOSS OF USE OF EQUIPMENT, AND LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL OR EQUITABLE THEORY; OR (ii) ANY DAMAGES OF ANY TYPE, IN THE AGGREGATE AT ANY TIME, IN EXCESS OF THE AMOUNT PAID BY CUSTOMER TO RANDALL REILLY PURSUANT TO THE AGREEMENT IN THE MOST RECENT SIX (6) MONTH PERIOD. NO CLAIMS OF ANY NATURE, WHETHER BASED IN IN TORT, STATUTE, CONTRACT, LAW, EQUITY, OR ANY LEGAL THEORY WHATSOEVER MAY BE BROUGHT AGAINST RANDALL REILLY MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM OCCURS.
(b) RANDALL REILLY WILL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES AT ANY TIME OR FROM TIME TO TIME, OR ANY INTERRUPTION OR DEGRADATION OF SERVICE QUALITY ARISING OUT OF OR RELATING TO ANY OF THE FOLLOWING: (i) ACTS OR OMISSIONS OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR OTHER THIRD-PARTY; (ii) THE EQUIPMENT, NETWORK, OR FACILITY FAILURE; (iii) THE EQUIPMENT, NETWORK, OR FACILITY UPGRADE OR MODIFICATION; (iv) OUTAGE OF CUSTOMER’S BROADBAND SERVICE PROVIDER; (v) CUSTOMER’S AND CUSTOMER PARTIES’ ACTS OR OMISSIONS; OR (vi) ANY OTHER CAUSE THAT IS BEYOND RANDALL REILLY’S CONTROL INCLUDING, BUT NOT LIMITED TO, FAILURE OF OR DEFECT IN ANY EQUIPMENT OR PRODUCTS, THE INABILITY OF THE SERVICE CONNECTIONS TO BE COMPLETED, OR THE DEGRADATION OF SERVICE QUALITY. FURTHERMORE, RANDALL REILLY WILL NOT BE LIABLE TO CUSTOMER OR ANY CUSTOMER PARTIES FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THE CONTENT OF ANY DATA TRANSMISSION, COMMUNICATION, OR MESSAGE TRANSMITTED OR RECEIVED BY CUSTOMER, ANY CUSTOMER PARTIES OR ANY PERSON USING THE SERVICES OR EQUIPMENT PROVIDED TO CUSTOMER, OR LOSSES RESULTING FROM ANY SERVICES OR GOODS PURCHASED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. ADDITIONAL LIMITATIONS MAY BE OUTLINED IN THE SALES CONTRACT. THE LIMITATIONS OF LIABILITY IN THE AGREEMENT SHALL BE ON A CUMULATIVE BASIS AND NOT PER INCIDENT.
1.18 REMEDIES. Upon the occurrence of any default or breach of the Agreement by Customer, and at any time thereafter, Randall Reilly may, in its sole discretion, do any one or more of the following: (a) terminate the Agreement as set forth herein, (b) exercise any other right or remedy which may be available to it under the Agreement and Applicable Law; and (c) terminate, restrict or suspend any Services. Customer shall be liable for all reasonable attorneys’ fees and other costs and expenses resulting from Customer’s default and the exercise of Randall Reilly’s remedies. No remedy referred to in this Section is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Randall Reilly at law or in equity. No express or implied waiver by Randall Reilly of any Customer default shall constitute a waiver of any other default by Customer or a waiver of any of Randall Reilly’s rights. The Parties agree and acknowledge that the remedies afforded by this Section are an agreed measure of damages and are not a forfeiture or penalty
1.19 TERMINATION. (a) Termination for Cause. Randall Reilly reserves the right to cancel and terminate Services immediately and without advance notice if Randall Reilly deems such action is necessary to prevent or protect against fraud or to otherwise protect Randall Reilly’s personnel, agents, facilities, or services. Without limitation, Randall Reilly may take such actions if: (i) Customer refuses to furnish information or furnishes false information that is essential for billing, or pertains to Customer’s creditworthiness or use of the Services; (ii) in the event Randall Reilly determines in its sole discretion that Customer’s creditworthiness is not acceptable and Customer cannot provide sufficient security to Randall Reilly; (iii) Customer has been given notice by Randall Reilly of any past due Fees and such amount remains unpaid, in whole or in part, for thirty (30) days or more; (iv) Customer uses or attempts to use the Services with the intent to avoid the payment, in whole or in part, of the Fees for the Services, including, without limitation, by rearranging, tampering with, or making connections to the Services in an unauthorized manner, or using fraudulent means or devices; (v) Customer acts in a manner that is threatening, obscene, or harassing to Randall Reilly personnel; (vi) Customer is insolvent or files or has a petition in bankruptcy filed against it; (vii) Customer is adjudicated a bankrupt; (viii) Customer makes a general assignment for the benefit of its creditors; (ix) Customer has a receiver, trustee or agent appointed with respect to its business or any significant portion thereof; (x) Customer ceases to do business in any manner that would affect Randall Reilly’s performance under the Agreement; (xi) Customer fails to comply with any Applicable Law in connection with its activities under the Agreement; or (xii) Customer is in breach of any other provision of the Agreement and fails to correct and cure such breach within thirty (30) days after the written notice of such default from Randall Reilly (each of the foregoing, a “Termination for Cause”). Customer shall have the right to terminate the Agreement (i) if Randall Reilly is in material breach of any provision of the Agreement and fails to correct and cure such breach within thirty (30) days after Customer provides written notice of such default (“Randall Reilly Default”); or (ii) in accordance with Section 1.29 (Amendment). (b) Termination Fees. Upon termination of the Agreement for any reason, Customer shall be obligated to pay to Randall Reilly on demand all Fees and other amounts due up to the effective date of termination (“Outstanding Amounts”). If Fees are calculated on a monthly, quarterly or other periodic basis, then Customer shall be liable for the pro-rata portion thereof up to the effective date of termination. Upon a Termination for Cause by Randall Reilly, or an early termination by Customer without cause, in addition to Outstanding Amounts, Customer also shall be obligated to pay to Randall Reilly on demand all Fees and other amounts due or that would have been due for the remainder of the Term had the Agreement not been terminated (such sum being the, “Early Termination Fees” or “ETFs”). Upon a termination for a Randall Reilly Default by Customer, no ETFs will be owed. (c) Effect of Termination. Upon termination or expiration of the Agreement, Customer will no longer have access to, or be able to use the Services except as Customer may request and Randall Reilly may allow in writing, acting reasonably and in good faith, to facilitate Customer’s move to another service provider. Such continued use during a transition to another service provider will be conditioned upon Customer’s payment of all Outstanding Amounts and any Early Termination Fees. Upon termination or expiration of the Agreement, Customer is responsible for: (i) making any Services Software provided by Randall Reilly as part of the Services and any Randall Reilly equipment located at Customer’s location available to Randall Reilly for uninstallation and return to Randall Reilly; and (ii) providing Randall Reilly with access to Customer’s location for the purpose of retrieving any Services Software and Randall Reilly’s equipment. Fees owed by Customer to Randall Reilly for Services shall continue under the Agreement until such time as Customer has notified Randall Reilly in writing that all such Services Software and Randall Reilly equipment is available for retrieval by Randall Reilly or has returned the same to Randall Reilly as required pursuant to a Sales Contract.
1.20 FORCE MAJEURE. Neither Party will be liable for any delay or failure in performance under the Agreement due to any cause that is beyond its reasonable control and for which it is without fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, embargoes, regional or local pandemics and epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, cable cuts, power blackouts affecting facilities other than facilities of a kind commonly protected by redundant power systems, unless such redundant power systems are also affected by such condition, unusually severe weather conditions, fuel or energy shortages, inability to secure products or services of other Persons or transportation facilities, acts or omissions of transportation common carriers, or other causes beyond a Party’s reasonable control, whether or not similar to the foregoing (collectively, “Force Majeure Events”). The Parties agree that the Party whose performance is affected by the Force Majeure Events shall use commercially reasonable efforts to cooperate in good faith to attempt to minimize the delay caused by the Force Majeure Events. In the event the delay caused by a Force Majeure Event lasts for a period of more than thirty (30) days, the Parties shall negotiate an equitable modification to the Agreement. If the Parties are unable to agree upon an equitable modification within fifteen (15) days after such thirty (30) day period has expired, then either Party will be entitled to serve thirty (30) days’ notice of termination on the other Party with respect to the Agreement. Notwithstanding anything herein to the contrary, a Party’s inability to pay amounts due hereunder will never be excused due to a Force Majeure Event.
1.21 ASSIGNMENT. The Agreement and any contractual rights or remedies available to Randall Reilly hereunder shall be freely assignable without notice. Additionally, Randall Reilly may sell or assign its interest, in whole or in part, without notice. Customer shall not assign the Agreement or its rights hereunder without the prior written consent of Randall Reilly to such assignment. Any such transfer without consent of Randall Reilly is void.
1.22 GOVERNING LAW; JURISDICTION; JURY WAIVER. The Agreement, as well as all claims or disputes between the Parties, whether arising out of or relating to this Agreement, the Services, or alleged extracontractual facts prior to, during, or subsequent to this Agreement, all of the foregoing including claims based in tort, statute, contract, law, equity, or any legal theory whatsoever, shall be governed by, enforced, and construed in accordance with the laws of the State of Alabama, including its statutes of limitations, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. In any action between the Parties arising out of or relating to the Agreement or the Services, each of the Parties (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Circuit Court of Tuscaloosa County, Alabama or the United States District Court for the Northern District of Alabama, Western Division; (b) agrees that all claims in respect of such action or proceeding shall be heard and determined exclusively in accordance with clause (a) of this Section 1.22; (c) waives any objection to laying venue in any such action or proceeding in such courts; (d) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over any Party; and (e) agrees that service of process upon such Party in any such action shall be effective if such process is given as a notice in accordance with Section 1.31 (Notices) of the Agreement. Each Party agrees not to commence any legal proceedings related hereto except in such courts. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY LITIGATION OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR ALLEGED EXTRACONTRACTUAL FACTS PRIOR TO, DURING, OR SUBSEQUENT TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LITIGATION OR CONTROVERSY.
1.23 COMPLIANCE WITH LAWS. Customer agrees to comply with all Applicable Law relating to the Agreement and the use of the Services. Randall Reilly agrees to comply with all Applicable Law relating to the Agreement the provision of the Services.
1.24 NO SOLICITATION. In order to ensure a productive partnership, during the Term of the Agreement and for an eighteen (18) month period immediately following the termination or expiration of the Agreement, Customer shall not, directly or indirectly, for itself, or on behalf of any other Person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit for employment or otherwise induce, influence, or encourage to terminate employment with Randall Reilly any employee of Randall Reilly with whom Customer had more than incidental contact or who became known to Customer in connection with the Agreement; provided, however, that nothing in the Agreement shall prohibit either Party from offering employment to or hiring any employee of the other Party in response to notices of employment addressed to the general public and not directed specifically to the other Party’s employees in particular. Recognizing that compensatory monetary damages resulting from a breach of this section would be difficult to prove, Customer agrees that such breach will render it liable to Randall Reilly for liquidated damages in the amount equal to one hundred fifty percent (150%) of the relevant employee’s annualized salary at Randall Reilly. Randall Reilly represents and warrants that it has made significant investments of capital and labor in the acquisition and development of its employee relationships and that this provision is narrowly tailored to achieve its pro-competitive justifications.
1.25 INDEPENDENT CONTRACTOR; SUBCONTRACTOR. Randall Reilly will perform all Services solely in Randall Reilly’s capacity as an independent contractor and not as an employee, agent or representative of Customer. Randall Reilly will not be entitled to any privileges or benefits that Customer may provide to its employees. In the event the Services require Randall Reilly to provide its employees to Customer for the purpose of rendering consulting Services, Customer shall be responsible for providing all technical data, information, and resources necessary, including workspace, office supplies, and reasonable access to information. Randall Reilly may utilize subcontractors or suppliers to perform all or any portion of the Services or to provide any products under the Agreement, but Randall Reilly shall at all times remain primarily liable to Customer under the Agreement. If Customer requests Randall Reilly to utilize a Customer-designated subcontractor or supplier for any of the Services to be provided by Randall Reilly, Customer shall provide to Randall Reilly a written request for the same including any information reasonably required by Randall Reilly and evidence of the insurance coverage required under the Agreement. Randall Reilly shall have the right, acting in good faith, to accept or reject such Customer-designated subcontractor or supplier. Consent by Randall Reilly to use a Customer-designated subcontractor or supplier shall not constitute a waiver of any right of Randall Reilly to reject defective subcontractor Services, and Randall Reilly shall retain all such rights under its subcontract.
1.26 WAIVER. No waiver of any provision, right or remedy contained in the Agreement, including, without limitation, the terms of this Section, is binding on or effective against a Party unless expressly set forth in writing and signed by such Party’s authorized representative. Customer expressly agrees that no right or remedy provided for in the Agreement can be waived through course of dealing, course of performance or trade usage. Customer expressly agrees and acknowledges that reliance on any waiver without Randall Reilly’s written consent is unreasonable. Waiver by Randall Reilly of any breach shall be limited to the specific breach so waived and shall not be construed as a waiver of any subsequent breach. Randall Reilly’s approval or consent to any action proposed by Customer will not be considered the agreement to the propriety, fitness or usefulness of the proposed action, and will not affect Customer’s obligation to strictly comply with the Agreement.
1.27 INSURANCE COVERAGE.
(a) Customer shall procure, pay for, and maintain the following minimum insurance coverage for the entire term of this Agreement, which shall be issued by a fiscally sound insurance carrier which maintains an A.M. Best rating of A or better: (i) $1,000,000 per occurrence/$2,000,000 aggregate of General Liability with Product and Completed Operations; (ii) Worker’s Compensation as required by state law; (iii) $10,000,000 Excess Liability (Umbrella); and (iv) $5,000,000 Cyber Liability, which shall include information security and privacy liability for failure to protect confidential information, costs for notification and credit monitoring.
(b) Customer must furnish Randall Reilly with certificates of insurance as evidence of satisfaction of the above insurance requirements upon request by Randall Reilly. Such certificates shall verify the waiver of subrogation in favor of Randall Reilly, name Randall Reilly as additional insured under the General Liability and Cyber Liability policies, and shall specify that in the event of cancellation or material change in coverage, at least thirty (30) days prior notice will be given to Randall Reilly concerning such event.
1.28 ENTIRE AGREEMENT. This Agreement correctly sets forth the entire agreement between Randall Reilly and Customer with respect to the Services to be provided by Randall Reilly to Customer.
1.29 AMENDMENT. These Terms and Conditions are posted at https://www.randallreilly.com/legal/recruiting-terms-and-conditions/ (the “Website”). Randall Reilly reserves the right to modify these Terms and Conditions by posting such changes on the Website. Customer shall monitor the Website for changes to these Terms and Conditions on a regular basis. Customer’s continued use of the Services after any changes have been posted thereto shall constitute Customer’s agreement to such changes. Changes will not apply retroactively but will become effective upon Randall Reilly’s posting to the Website. If Customer does not agree to the modifications to the Terms and Conditions, Customer must notify Randall Reilly of its objection within 30 days of the posting to the Website. Thereafter, if a timely objection is lodged, Customer and Randall Reilly will work in good faith to resolve the conflict within thirty (30) days. After which, if the conflict is not resolved to the satisfaction of Randall Reilly and Customer, Customer may terminate the Agreement with three (3) months’ written notice to Randall Reilly of its wish to terminate due to the modification. Notwithstanding anything herein to the contrary, Randall Reilly will not materially reduce the functionality or service levels applicable to any Services during the then current Term (excluding any Renewal Terms that begin after the date of the change) of the Agreement for such Services without first obtaining Customer’s written consent.
1.30 MISCELLANEOUS. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. Any provision of the Agreement that is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Time is of the essence with respect to the Agreement. Customer agrees that the Services will be used primarily for commercial purposes and will not be used primarily for personal, family or household use. Customer shall promptly execute and deliver to Randall Reilly or otherwise signify acceptance of such further documents and take such further action as Randall Reilly may reasonably request in order to give effect to the intent and purpose of the Agreement.
1.31 NOTICES. Except as otherwise provided under the Agreement, all notices, demands, or requests to be given by one Party to the other Party shall be in writing and shall be deemed to have been duly given on the date delivered (or the date of written refusal to accept delivery) in person, by courier service, by postage prepaid United States certified mail, return receipt requested, or electronic mail or fax with follow up copy by one of the other methods, and addressed, if to Customer, at the address and contact specified in the Sales Contract, and if to Randall Reilly, as follows:
Randall Reilly Talent, LLC
Attention: General Counsel
1460 Northbank Pkwy, Suite 100
Tuscaloosa, AL 35406
1.32 SURVIVAL. The rights and obligations of the Parties set forth in this Section 1.32, and any right or obligation of the Parties in the Agreement which, by its nature, should survive termination or expiration of the Agreement, will survive any such termination or expiration of the Agreement. Without limiting the foregoing, all payment obligations, the indemnifications in favor of Randall Reilly and the Randall Reilly Parties, representations, warranties and covenants made by Customer, Customer’s obligations with regard to Customer Content, releases, limitations of liability, disclaimers of warranties, limitations of remedies, governing law, jurisdiction, and jury waiver, restrictions upon use of the Services, ownership and intellectual property rights, non-solicitation and confidentiality obligations, and the rights of Randall Reilly to take action necessary to remain in compliance with any license or law, including its right to retake possession of or disable the Services, Services Software and any equipment provided to Customer, all as more particularly set for herein, shall survive the termination of the Agreement and discontinuation of the Services.
1.33 INJUNCTIVE RELIEF. Customer acknowledges and agrees that the breach or threatened breach of Section 1.5(b) (Restrictions on Use), Section 1.11 (Intellectual Property Ownership; Feedback), Section 1.12 (Confidentiality; NonDisclosure), Section 1.22 (Governing Law; Jurisdiction; Jury Waiver), or Section 1.24 (No Solicitation) would cause irreparable harm to Randall Reilly, the extent of which would be difficult to ascertain and which would not be compensable by monetary damages. Accordingly, Customer agrees that, in addition to any other remedies to which Randall Reilly may be entitled at law or equity, Randall Reilly may seek immediate injunctive relief without the necessity to post a bond therefor in the event of a breach or threatened breach of such Sections by Customer or Customer Parties.
1.34 PUBLICITY. Except as mutually agreed by the Parties in writing, no publicity of the terms or existence of the Agreement shall occur.
1.35 EXPORT CONTROL. Randall Reilly utilizes software and technology that may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release any Randall Reilly Services, products, or the underlying software or technology to, or make such materials accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all Applicable Law, 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 Services, products, or the underlying software or technology available outside the United States.
1.36 FCRA AND OTHER AUTHORIZATIONS FOR RECORDS. (a) In providing access to the Services, Randall Reilly may act as a conduit to receive certain consumer reports ordered by Customer pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. ("FCRA")) 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 Services. Customer understands and acknowledges that it has specific legal responsibilities to provide an Applicant with a stand-alone disclosure providing notice that the Customer may use information in a consumer report for decisions related to employment and to also obtain written authorization from an Applicant to secure his/her consumer report before requesting a consumer report and using information obtained from a consumer report to make employment decisions. Randall Reilly will not be responsible for providing the stand-alone disclosure or obtaining written authorization from any Applicant on Customer's behalf and, therefore, Customer shall be solely responsible for providing the stand-alone disclosure referenced-above as well as obtaining a written authorization from each Applicant as part of its own application and on-boarding processes. Customer agrees to consult with its own legal counsel to understand Customer's legal responsibilities related to obtaining and using consumer report information, developing a legally compliant disclosure and authorization process, and ensuring Customer'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.
(b) Customer acknowledges, represents and warrants to Randall Reilly the following: (i) that Customer has certified to each consumer reporting agency that it has complied with the FCRA, with regard to obtaining, using and disposing of such consumer reports; (ii) that Customer has a permissible purpose under the FCRA to obtain and use an Applicant’s consumer report; (iii) that such reports will be obtained and used exclusively for employment-related 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; (iv) that Customer will provide a stand-alone written disclosure to each Applicant advising that the Customer may use information in a consumer report for decisions related to employment; (v) that Customer will obtain written authorization from each Applicant providing permission to obtain his or her consumer report and to share the consumer report with Randall Reilly in connection with Customer's use of the Product; (vi) that Customer will maintain the consumer information contained in each Applicant’s consumer report in a secure and confidential manner; (vii) that Customer will not discriminate against any Applicant based on information contained in a consumer report or otherwise misuse such information, as provided by any applicable equal opportunity laws or regulations; (viii) that any and all actions Customer takes with respect to information contained in a consumer report shall be in strict compliance with all requirements of the FCRA; (ix) that Customer will inform each Applicant 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; (x) that Customer is responsible for and will comply with the FCRA’s pre-adverse employment action requirements, including (but not limited to) providing pre-adverse notice to an Applicant before taking any adverse employment action based on information contained in a consumer report by way of providing Applicant with a copy of the consumer report relied on by Customer to make the employment-related decisions as well as a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act," and provide Applicant with five (5) days to contact the consumer reporting agency to dispute incomplete or inaccurate information in the consumer report before taking the adverse employment-related action; (xi) that, if Customer takes an adverse employment-related action based on information contained in an Applicant’s consumer report, Customer shall provide an adverse action notice to the Applicant, containing all of the information and elements required by the FCRA; and (xii) that any and all actions Customer takes with respect to information contained in a consumer report shall be in strict compliance with the laws and regulations of the respective state applicable to Applicant.
(c) In providing access to the Services, Randall Reilly may host and store on Customer’s behalf, or may act as a conduit for Customer 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: (i) pursuant to federal statute, the Safety Reports will only be used for pre-employment screening of Applicants and only by Customer that is directly involved in the hiring process with respect to the applicable Applicant and/or the Applicant; (ii) the Safety Reports will not be shared in any way with anyone other than the Applicant and Customer except to the extent otherwise required by Applicable Law; (iii) Customer will not 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 Report; (iv) Customer will: (A) abide by all state and federal legal restrictions and conditions upon use and disclosure of the personal information contained within a Safety Report; (B) keep sufficient books and records to evidence use of Safety Reports in accordance with applicable state and federal laws; (C) implement reasonable system and data security procedures to protect Safety Reports from unauthorized disclosure; (D) promptly report to Randall Reilly any known misuse of and/or breach of security or confidentiality involving a Safety Report; and (E) 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 Report furnished to Customer; (v) prior to obtaining a Safety Report regarding a particular Applicant, Customer will: (A) disclose to the Applicant who is the subject of a Safety Report that a Safety Report may be obtained; and (B) obtain written consent from the applicable individual allowing Customer to obtain such Safety Report and process it through and in connection with Customer’s use of the Product; (vi) Customer will: (A) inform each Applicant in writing if information about the Applicant obtained from a Safety Report has been used in the hiring screening process; (B) 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 (C) 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.
(d) Customer further acknowledges, represents and warrants: (i) that it 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 (ii) that as between Randall Reilly and Customer, Customer retains sole and exclusive responsibility for compliance with such laws, rules and regulations.
1.37 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 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 Services, during normal business hours and, where possible, upon advance notice. Randall Reilly will bear its own costs of any requested audit, unless Customer 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 Customer.
1.38 CALL RECORDING. As part of Randall Reilly’s Services and product offering, Randall Reilly or its vendors or other third parties may record the telephone conversations, including but not limited to conversations between Customer and Randall Reilly or Customer and third-parties (“Randall Reilly Call Recording”), and consents to the Randall Reilly Call Recording, and Customer understands and acknowledges that the Randall Reilly Call Recording is voluntary and does not prohibit Customer from purchasing the Services. Customer understands and acknowledges that the Randall Reilly Call Recording and Third-Party Call Recording may be made with or without notification, and Customer may revoke its consent at any time by providing notice of such revocation, in writing, to Randall Reilly.
1.39 CONSENT TO CALL. For any leads or potential leads provided by Randall Reilly on any applicant candidate list, Randall Reilly has made a reasonable effort, based on currently understood legal requirements, to obtain from such individuals prior express written consent to be contacted by automatic telephone dialing systems on their mobile phones pursuant to the TCPA (“Consent to Call”). For any leads or potential leads provided by Customer on any applicant candidate list, Customer is solely responsible for obtaining Consent to Call from such individuals; provided, however, that Randall Reilly will use reasonable efforts to confirm that such Consent to Call was provided. Customer is solely and exclusively responsible for determining whether the consents Randall Reilly has obtained are legally sufficient and comply with Customer’s policies. Randall Reilly makes no representations or warranties regarding such consent, including but not limited that such consent complies with the requirements of the Consumer Protection Laws or other Applicable Law. Specifically, as part of Randall Reilly’s Services and product offering, Randall Reilly may enable a feature that automates driver call and SMS workflows. Additionally, Randall Reilly may enable a push to dial feature on websites, which feature may allow potential applicants to contact Customer without first providing any consent to contact. Customer agrees to obtain any and all consent required by any applicable laws before engaging in any further outbound communication with any potential applicant.
1.40 PERSONAL IDENTIFYING INFORMATION. Customer recognizes and understands that information provided by and about candidates includes personal identifying information (sometimes including sensitive personal identifying information) which is legally protected information.
The following additional Specific Terms and Conditions are applicable only to Recruiting Lead Processing Services purchased by Customer from Randall Reilly, and supplement but do not supersede the General Terms and Conditions. To the extent of a conflict between the General Terms and Conditions set forth in Section 1 of the Agreement and the Specific Terms and Conditions set forth in this Section 2, with respect to Recruiting Lead Processing Services only, the Specific Terms and Conditions set forth in this Section 2 shall control.
2.1 IMPLEMENTATION SERVICES; COMPLIANCE MATTERS.
(a) Randall Reilly shall research its database and use established business practices to generate candidates for consideration by Customer, which shall include name, address and phone number, for Customer’s hiring consideration (“Randall Reilly Generated Leads”).
(b) Customer may provide Randall Reilly with information regarding potential driver candidates that Customer has procured from its own independent business practices. With regard to any such potential driver candidate that Customer desires Randall Reilly to contact, Customer shall provide the following information to Randall Reilly: (i) name; (ii) telephone number; (iii) information regarding the level of consent such individual has granted regarding receipt of telephone calls, including calls made to cellular telephone numbers, calls executed through utilization of automatic telephone dialing systems (ATDS), calls delivering pre-recorded messages, and SMS text messages; and (iv) and other relevant data and information regarding each such individual as may be requested by Randall Reilly (collectively the “Customer Generated Leads”). With regard to such Customer Generated Leads:
(A) Customer acknowledges and agrees that it shall be solely responsible for (1) securing all consents, rights, licenses or approvals necessary to grant Randall Reilly access to or use of any personal information or any other third-party materials included with Customer Generated Leads, and (2) the accuracy, integrity, availability, legality and appropriateness of any Customer Generated Leads, including by ensuring that Randall Reilly’s use of any such Customer Generated Leads (I) complies in all respects with Customer’s own applicable privacy policy, user agreement and terms of service, (II) does not infringe, misappropriate or otherwise violate any privacy rights or other rights of any third-party, and (III) complies with all Applicable Law, rules and regulations, including, without limitation, the TCPA and DNC, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, CAN-SPAM, CASL, Canada’s Telecommunications Act and the Unsolicited Telecommunications Rules issued by the Canadian Radio-television and Telecommunications Commission, and any other applicable marketing or communication regulations.
(B) Customer shall at the time of each delivery of Customer Generated Leads to Randall Reilly and from time-to-time at Randall Reilly’s request, confirm to Randall Reilly in writing that (1) Customer has received, and maintains adequate records reflecting, all applicable consents necessary under Applicable Law, rules and regulations to contact Customer Generated Leads and to transmit to Randall Reilly the information (including any personally identifiable information) contained in such Customer Generated Leads, (2) each such consent was received by Customer in compliance with Applicable Law, rules and regulations, including, but not limited to applicable disclosures, and (3) no such Customer Generated Lead has made a subsequent request to unsubscribe, opt out of or withdraw or alter such required consent.
(C) Customer shall immediately (and in any case within 24 hours) provide Randall Reilly with notice, including reasonable detail of the specific matter, if (1) any Customer Generated Lead revokes or alters his or her consent, requests to unsubscribe or opts out of being contacted, or (2) any Customer Generated Lead, or any representative thereof, makes an inquiry, complaint, order or request to Customer relating, directly or indirectly, to any contact by Randall Reilly to such individual, or (3) any regulator or governmental authority requests an investigation or audit of Customer relating to any Customer Generated Lead.
(D) Randall Reilly shall have no obligation to use any Customer Generated Lead but will determine in its sole and absolute discretion which, if any, Customer Generated Lead to use in relation to Randall Reilly’s provision of driver candidates and process information related to a potential driver candidate for consideration of employment by Customer (“Customer Campaign”). Those Customer Generated Leads used in a Customer Campaign are referred to herein as “Approved Customer Generated Leads.”
2.2 PRICING/FEES.
(a) For the purpose of clarity, this Section 2.2 is in addition to Section 1.
(b) Placement Fee. If a Randall Reilly Generated Lead or an Approved Customer Generated Lead accepts a position of employment with Customer within ninety (90) days of such introduction, Customer shall pay Randall Reilly a fee (the “Placement Fee”) as set forth in the Sales Contract. Randall Reilly shall provide Customer with a list of Randall Reilly Generated Leads and Approved Customer Generated Leads that have been provided to Customer twice per month. Customer shall issue a report to Randall Reilly by the last day of each month indicating Randall Reilly Generated Leads and Approved Customer Generated Leads that have been hired by Customer (“Lead to Hire Report”). Randall Reilly shall issue invoices based off the Lead to Hire Report with payment due from Customer thirty (30) days from issuance of the invoice
2.3 ADDITIONAL WARRANTIES AND DISCLAIMERS. For the purpose of clarity, this Section 2.3 is in addition to Section 1.15. With respect to the receipt of Randall Reilly Generated Leads and Approved Customer Generated Leads (collectively referred to as “Applicant Candidate List”), Customer agrees and warrants that:
(a) Customer agrees that any leads on recruits or potential employees provided by Randall Reilly or through use of the Services (“Leads”), including but not limited to any Applicant Candidate List, are based upon preliminary, pre-screening metrics and information and that Customer is solely and exclusively responsible for screening all individuals and information contained in a Lead to ensure that the same satisfies all applicable qualifications of Customer, the US Department of Transportation (“DOT”), or any other applicable Governmental Bodies.
(b) The use by Customer of the Applicant Candidate List and any calls and other interactions with and information provided to the individuals on the Applicant Candidate List will comply with all Applicable Law, rules and regulations, including without limitation, the Consumer Protection Laws. Without limiting the generality of the foregoing, Customer will not make any calls to any individual listed on any federal or state DNC registry unless an exemption applies.
(c) THE APPLICANT CANDIDATE LIST IS PROVIDED "AS IS", "WHERE IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, RANDALL REILLY MAKES NO WARRANTIES TO CUSTOMER, AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR BASED ON COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER UNDERSTANDS AND ACCEPTS THAT THE APPLICANT CANDIDATE LIST IS NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND ALL RISKS OF CONDITION, USE, QUALITY, OR FITNESS ARE SOLELY AND EXCLUSIVELY THAT OF CUSTOMER.
The following additional Specific Terms and Conditions are applicable only to digital advertising Services (“Digital Services”) purchased by Customer from Randall Reilly, and supplement but do not supersede the General Terms and Conditions. To the extent of a conflict between the General Terms and Conditions set forth in Section 1 of the Agreement and the Specific Terms and Conditions set forth in this Section 3, with respect to Digital Services only, the Specific Terms and Conditions set forth in this Section 3 shall control.
3.1 PRICING, FEES AND PAYMENT. Randall Reilly will invoice Customer for all Digital Services on the date that the advertising campaign (“Campaign”) is commenced, as set forth in the Sales Contract. Customer must pre-pay the Full Amount of the Campaign, prior to its scheduled run, by credit card or another approved method if Randall Reilly determines, in its sole discretion, not to extend credit to Customer for the Campaign. As used herein, “Full Amount” is defined as the entire amount due for the Digital Services including all applicable taxes, if any, as set forth in the Sales Contract. Randall Reilly has the right to hold Customer and any agency/agencies working on behalf of Customer jointly and severally liable for the Full Amount due and payable to Randall Reilly. Randall Reilly reserves the right to refuse advertising to Customers and ad agencies with overdue accounts.
3.2 BOOKING, RENEWAL, AND ACCEPTANCE OF ADVERTISING. Customer acknowledges that Randall Reilly has the right, but not the obligation, to review Customer’s advertisements submitted in connection with the Campaign. Randall Reilly reserves the right, in its absolute and sole discretion, and at any time, to reject, cancel or remove any Ads from the applicable platform that is 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 for Ads previously run. All Sales Contracts for Digital Services are accepted subject to the provisions of Randall Reilly’s current labor rate card. Rates are subject to change upon reasonable notice from Randall Reilly to Customer.
3.3 CAMPAIGN CONDITIONS. In the event that Randall Reilly 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 Services provided in accordance with Section 3.1 above, even if such Digital Services are a “make good” provided after the end date of the Campaign.
3.4 CANCELLATIONS. In the event that Customer desires to cancel its obligation under this Agreement or any Sales Contract, Customer must provide at least fourteen (14) 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 3.4, Customer shall be solely responsible for any Fees incurred by Randall Reilly prior to the Cancellation Effective Date.
3.5 CUSTOMER REPRESENTATIONS. Customer represents and warrants that publication by the Randall Reilly of any advertising materials submitted on or on behalf of Customer 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 Law.
3.6 LIMITATION OF LIABILITY. For the purpose of clarity, this Section 3.6 is in addition to Section 1.17. Randall Reilly’s ad spaces and Digital Services are provided “as is” and “as available” and Randall Reilly disclaims all warranties of any kind, whether express or implied. 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 3.3, 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 Ads 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.
The following additional Specific Terms and Conditions are applicable only to Services that fall under the STRATAS technologies (including but not limited to the Track Module, Connect Module, the Strategize Module, and the Reach Module) (collectively, the “STRATAS Services”) purchased by Customer from Randall Reilly, and supplement but do not supersede the General Terms and Conditions. To the extent of a conflict between the General Terms and Conditions set forth in Section 1 of the Agreement and the Specific Terms and Conditions set forth in this Section 4, with respect to STRATAS Services only, the Specific Terms and Conditions set forth in this Section 4 shall control.
4.1 SEAT LICENSES AND ACCESS CODES. The access and use rights of each Authorized User shall be governed by the license type, as set forth in detail in the Sales Contract (each, a “Seat License”), allocated by Customer to such Authorized User. The total number of Authorized Users, by type, shall not exceed the number of such type of Seat Licenses purchased by Customer. If Customer purchases additional Seat Licenses during the Term, any such Seat Licenses shall be subject to this Agreement, including any appropriate adjustment of the Fees to reflect such purchase. Customer may, in its reasonable discretion, permanently reassign, remove or replace the Authorized Users associated with one or more Seat Licenses; provided that no Seat License may be shared among individuals or allocated to more than one individual. 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 Services and/or 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 to, (i) 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 (ii) notify Randall Reilly promptly of any identified unauthorized access or use of any Access Code.
4.2 ADDITIONAL DISCLAIMERS. For the purpose of clarity, this Section 4.2 is in addition to Section 1.15. Customer agrees and/or warrants that:
(a) Facilitation Tool Only; Not an Employment Service. The Services are solely communications and networking tools that enable connections between Applicants and potential employers (such as Customer). Except for facilitating connections through the Services, 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 behalf or on behalf of any Applicants. The availability of any applications or job posting materials from Applicants via the Services 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 via the Services by Applicants. Randall Reilly cannot and does not control, is not responsible for, and makes no representations regarding (i) the existence, quality, timing, suitability, reliability, eligibility, safety or legality of any Applicant, Applicant Information, or the employment by Customer posted via the Services, or (ii) whether Customer’s use of the Services will result in filling any particular position with satisfactory employees or service providers. The Services are not employment services 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 use of the Services or Customer’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 use of the Services, 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 any Applicable Law and regulations, including (without limitation) tax laws and regulations, laws and regulations relating to an employee’s or service provider’s immigration status, background, 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 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 would be in compliance with such laws and regulations.
(b) Customer agrees that any leads on recruits or potential employees provided by Randall Reilly or through use of the Services (“Leads”) are based upon preliminary, pre-screening metrics and information and that Customer is solely and exclusively responsible for screening all individuals and information contained in a Lead to ensure that the same satisfies all applicable qualifications of Customer, the US Department of Transportation (“DOT”), or any other applicable Governmental Bodies.
(c) The use by Customer of any applicant candidate list and any calls and other interactions with and information provided to the individuals on such applicant candidate list will comply with all Applicable Law, rules and regulations, including without limitation, the Consumer Protection Laws and Privacy Laws. Without limiting the generality of the foregoing, Customer will not make any calls to any individual listed on any federal or state DNC registry unless an exemption applies.
(d) ANY APPLICANT CANDIDATE LIST IS PROVIDED "AS IS", "WHERE IS". EXCEPT AS EXPRESSLY SET FORTH HEREIN, RANDALL REILLY MAKES NO WARRANTIES TO CUSTOMER, AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR BASED ON COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER UNDERSTANDS AND ACCEPTS THAT THE APPLICANT CANDIDATE LIST IS NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND ALL RISKS OF CONDITION, USE, QUALITY, OR FITNESS ARE SOLELY AND EXCLUSIVELY THAT OF CUSTOMER.
The following additional Specific Terms and Conditions are applicable only to Services that fall under the RPO Services purchased by Customer from Randall Reilly, and supplement but do not supersede the General Terms and Conditions. To the extent of a conflict between the General Terms and Conditions set forth in Section 1 of the Agreement and the Specific Terms and Conditions set forth in this Section 5, with respect to RPO services only, the Specific Terms and Conditions set forth in this Section 5 shall control.
5.1 CUSTOMER FACILITIES AND SYSTEM ACCESS. In conjunction with the RPO Services, Customer acknowledges that it may choose or may be required to provide access to its facilities, digital or computer systems or networks, communications systems, or other similar systems (“Customer Systems”) to Randall Reilly, its employees, affiliates, representatives, designees or vendors (“Permitted Parties”). In allowing such access, Customer acknowledges, represents, and warrants that it: (i) will provide the Permitted Parties with all requisite access credentials, access and security protocols, restrictions, and policies and procedures; (ii) assumes all risk of whatever nature arising out of relating to the Permitted Parties’ access to the Customer Systems, including the screening, acceptance, and monitoring of any Permitted Parties; and (iii) as between Randall Reilly and Customer, Customer is solely responsible for any Losses arising out of or relating to the Permitted Parties’ access to the Customer Systems, and that Randall Reilly shall have no responsibility for any such Losses.
5.2 For the purpose of clarity, this Section 5.2 is in addition to Section 1.16. Customer shall indemnify, hold harmless, and at Randall Reilly’s direction defend, the Randall Reilly Parties, and any other service provider who furnishes RPO Services to Customer on behalf of any Randall Reilly Parties in connection with the Agreement, from and against any and all Losses, including, without limitation, Losses by virtue of third-party allegations, causes of action, claims, or demands, arising out of or relating to Permitted Parties’ access to the Customer Systems, including, but not limited to Losses that result solely or concurrently from the Permitted Parties’ or the Randall Reilly Parties’ alleged negligence. Notwithstanding the foregoing, however, Customer shall not be obligated hereunder to the extent any such Losses are determined to arise out of the intentional misconduct or gross negligence of Randall Reilly or any of the Randall Reilly Parties.