Last Modified: October 25, 2023
These CUSTOM PUBLISHING MASTER TERMS AND CONDITIONS (the “Terms and Conditions”) govern the provision of the Services by Randall-Reilly, LLC, a Delaware limited liability company (“Randall-Reilly”), to the customer named in a sales contract, order, quote or statement of work (collectively, a “Sales Contract”), along with its direct employees, agents, and affiliates (the “Customer”). Randall-Reilly 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 thereto and hereto (collectively, the “Agreement”) constitute an independent and separate contract between the Parties for the Services specified in the Sales Contract. The publishing services subject to these Terms and Conditions are set forth in the Sales Contract, and further include all related or similar services provided by Randall-Reilly (collectively, the “Services”). By using the Services, Customer accepts and agrees to be bound by and abide by this Agreement as well as Randall-Reilly’s Website Terms of Use and Privacy Policy (located at https://www.randallreilly.com/website-terms-and-privacy-policy/) and incorporated herein by reference.
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 performance of the Services by Randall-Reilly 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”).
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. 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 20 (Amendment).
(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. All payments hereunder shall be in US dollars and made by check or electronic transfer to an account designated by Randall-Reilly. In the event Customer uses a form of payment for which any associated fee is charged to Randall-Reilly, Customer agrees that Randall-Reilly may pass along any and all such fees to Customer in addition to Fees owed hereunder. 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.
(a) Late Fees. If any invoice for Fees due hereunder is not paid in full within ten (10) days after the date on which payment is due, 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, as defined below (“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. 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.
(a) Work Product . Subject to Section 3(b) and excepting any Underlying Work (as defined below) and third-party products, Customer will become the sole and exclusive owner of all right, title, and interest in and to any Work Product (as defined below), including all intellectual property rights therein, that is specifically prepared for and provided to Customer as part of the Services pursuant to this Agreement, when such Work Product is delivered to Customer and fully paid for by Customer. For purposes of this Agreement, “Work Product” shall include any deliverables, products, documents, media, print materials, publications, photographs, videos, content, work product, or other works relating thereto, that are specifically prepared for and provided to Customer or any of its employees, affiliates, or representatives pursuant to this Agreement. (b) Underlying Work. 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), along with any goodwill associated with any of the foregoing recognized in any country or jurisdiction in the world, in and to the Services (other than Work Product), and all Underlying Work. For purposes of this Agreement, “Underlying Work” includes any processes, materials, software, reports, routines, research, language, instructions, methods, techniques, trade secrets, patents, copyrights, or other intellectual property that have been previously developed, purchased, licensed, or acquired by Randall Reilly or by third parties used in the course of performing the Services and developing Work Product, together with all ideas, concepts, processes, and methodologies developed in connection therewith. Randall Reilly grants Customer a non-exclusive, royalty-free, non-transferable, perpetual license to use such Underlying Work, but only in connection with Customer’s use of the Work Product in which it is included. 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. (c) 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 intellectual property of Customer that is owned or licensed by Customer as of the Effective Date or is otherwise created or developed solely by Customer (but expressly excluding Customer Promotional Materials (defined below)), including without limitation Customer’s name and trademarks (“Customer Property”). Customer hereby grants to Randall-Reilly a paid-up, royalty-free, nonexclusive, worldwide, irrevocable, right and license to access, use, copy, alter, modify, distribute, publicly display, transmit, create derivative works of and publish such Customer Property as necessary to provide, and fulfill the objectives of, the Services and Work Product in connection with this Agreement. Randall-Reilly hereby grants to Customer a non-exclusive, perpetual, worldwide, non-transferable, non-sublicensable, paid-up and royalty-free right and license to Customer for the Work Product to the extent necessary to enable Customer to make reasonable use of the Services and Work Product for their intended purpose. (d) No Exclusivity. Customer may obtain services similar to the Services from third parties, and Randall-Reilly may provide the same or similar services to third-parties, without restriction or accounting to Customer. (e) 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, for itself and all Customer Parties (defined below), 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.
(a) Confidential Information. Each Party acknowledges that it and its employees, agents, representatives and contractors, and their respective successors and assigns (collectively, “Receiving Party”) may be exposed to or acquire information that is proprietary or confidential to the other Party (“Disclosing Party”) in connection with the performance of the Agreement (“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 3(d). 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.
(b) Non-Confidential Information. Notwithstanding Section 4(a), 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.
Customer, for itself and all Customer Parties (defined below), irrevocably permits, authorizes, and licenses Randall-Reilly to use, re-use, publish, and re-publish images, text, graphics, film, audio, and audiovisual works depicting, recording, or describing Customer or any Customer Party made, derived, or produced in conjunction with the Services (the “Customer Promotional Materials”). Customer represents and warrants that Customer shall obtain, and provide copies to Randall-Reilly upon request, of executed releases and consents, in a form acceptable to Randall-Reilly, for the use of the name and likeness of all individuals appearing in the Customer Promotional Materials. Randall-Reilly is and shall be the exclusive owner of all rights in the Customer Promotional Materials. Customer, for itself and all Customer Parties, hereby irrevocably transfers, assigns, and otherwise conveys to Randall-Reilly its entire right, title, and interest, if any, in and to the Customer Promotional Materials and all copyrights and other intellectual property rights therein arising in any jurisdiction throughout the world in perpetuity, including all registration, renewal, and reversion rights, and the right to sue to enforce such rights against infringers; provided, however, that Randall-Reilly hereby grants to Customer a non-exclusive, perpetual, worldwide, non-transferable, non-sublicensable, paid-up and royalty-free right and license to Customer for the Customer Promotional Materials to the extent necessary to enable Customer to make reasonable use of the Services and Work Product for their intended purpose.
In conjunction with the Services, Randall-Reilly, as sub-licensor, may use materials provided by third-party vendors, consultants or independent contractors 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 Randall-Reilly or the Vendors or their licensors, as applicable.
(a) Customer warrants that (i) Customer either owns, or has all rights, permissions and consents that are necessary to to permit Randall-Reilly and its Vendors to perform the Services as contemplated in this Agreement; and (ii) Randall-Reilly’s and its subcontractors’ access to and use of Customer’s Property and Customer’s Promotional Materials 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.
(b) EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY SERVICES AND WORK PRODUCT PROVIDED BY RANDALL-REILLY ARE 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 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.
(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 or Work Product in a manner not authorized by the Agreement, (iii) any third-party allegation, claim, or demand contending that Customer, Customer Parties, or Customer Property infringed or is infringing upon the third-party’s intellectual property rights, (vii) Customer’s or Customer Parties’ alleged negligence, recklessness or intentional misconduct, 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) 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 the Services or Work Product, provided that Randall-Reilly shall have no liability for any Losses to the extent that such Losses have arisen due to (i) use, reproduction, distribution, display or disclosure of such the Services or Work Product other than in accordance with the terms of this Agreement, (ii) the modification or alteration of the Services or Work Product by or at the direction of Customer or use or distribution thereof in a manner not contemplated by this Agreement, or (iii) the Customer Property. In the event that any Services or Work Product becomes the subject of an actual or threatened infringement-related claim or if Randall-Reilly reasonably believes that any Services or Work Product 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 or Work Product in accordance with the provisions of this Agreement or (B) replace or modify the applicable Services or Work Product so that it becomes non-infringing and in compliance with Applicable Law. In the event that, after using commercially reasonable efforts, Randall-Reilly is unable to obtain either of the above two results, then Randall-Reilly may terminate this Agreement, whereupon Randall-Reilly shall provide a refund to Customer of a pro-rated portion of any prepaid, unearned Fees paid by Customer, based on the unexpired period of the then-current Term that remained as of the date of such termination. The provisions of this Section constitute the sole and exclusive remedy of Customer, and the sole and exclusive obligation of Randall-Reilly, relating to a claim of infringement or alleged infringement of any Services or Work Product.
(c) The indemnified Party will notify the indemnifying Party in writing within a reasonable time after it determines that a claim may reasonably result in the indemnification of the indemnified Party hereunder. Upon receipt of written notification of an indemnification claim, the indemnifying Party shall immediately take control of the defense and investigation of such claim and engage counsel reasonably satisfactory to the indemnified Party to handle and defend the indemnification claim, at the indemnifying Party’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. The indemnified Party 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. The indemnifying Party will not settle any claim without the indemnified Party’s prior written approval. The indemnified Party 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 the indemnified Party 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 the indemnified Party, and (iii) the proposed settlement does not have any likely negative impact on the reputation of the indemnified Party.
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 OR WORK PRODUCT, 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 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.
Upon the occurrence of any default or breach of the Agreement by Customer, or Randall-Reilly’s reasonable belief that such default or breach occurred or is imminent, 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.
(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 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; (ii) Customer is insolvent or files or has a petition in bankruptcy filed against it; (iii) Customer is adjudicated as bankrupt; (iv) Customer makes a general assignment for the benefit of its creditors; (v) Customer has a receiver, trustee or agent appointed with respect to its business or any significant portion thereof; (vi) Customer ceases to do business in any manner that would affect Randall-Reilly’s performance under the Agreement; (vii) Customer fails to comply with any Applicable Law in connection with its activities under the Agreement; or (viii) 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 20 (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.
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.
This Agreement will be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. This Agreement will not be assignable without the prior written consent of the other Party, except that Randall-Reilly will be permitted, without Customer’s consent, to assign this Agreement (a) to any of its affiliates; (b) in connection with a merger or consolidation involving Randall-Reilly or a sale of all or substantially all of its assets; or (c) in connection with a divestiture of any portion of its business or any applicable division to which this Agreement relates.
The Agreement, as well as all claims or disputes between the Parties, whether arising out of or relating to this Agreement, the Services, the Work Product 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 14; (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 22 (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, THE WORK PRODUCT, 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.
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 and the provision of the Services.
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.
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. Each Party 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. Each Party expressly agrees and acknowledges that reliance on any waiver without the other Party’s written consent is unreasonable. Waiver by either Party of any breach shall be limited to the specific breach so waived and shall not be construed as a waiver of any subsequent breach. Either Party’s approval or consent to any action proposed by the other Party will not be considered the agreement to the propriety, fitness or usefulness of the proposed action, and will not affect such Party’s obligation to strictly comply with the Agreement.
(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; and (iii) $10,000,000 Excess Liability (Umbrella).
(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 policy, 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.
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.
Any modification of this Agreement shall be made only by written agreement signed by both Parties.
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.
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 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
The rights and obligations of the Parties set forth in this Section 23, 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 Property and Customer Promotional Materials, releases, limitations of liability, disclaimers of warranties, limitations of remedies, governing law, jurisdiction, and jury waiver, termination rights, restrictions upon use of the Services, ownership and intellectual property rights, confidentiality obligations, and the rights of Randall-Reilly to take action necessary to remain in compliance with any license or law, all as more particularly set for herein, shall survive the termination of the Agreement and discontinuation of the Services.
Each Party acknowledges and agrees that the breach or threatened breach of Section 3 (Intellectual Property Ownership; Feedback), Section 4 (Confidentiality; Non-Disclosure), or Section 14 (Governing Law; Jurisdiction; Jury Waiver) would cause irreparable harm to the other Party, the extent of which would be difficult to ascertain and which would not be compensable by monetary damages. Accordingly, each Party agrees that, in addition to any other remedies to which the other Party may be entitled at law or equity, the other Party 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.
Except as mutually agreed by the Parties in writing, no publicity of the terms or existence of the Agreement shall occur.