REDDIE SOFTWARE AS A SERVICE AGREEMENT
IMPORTANT-PLEASE READ THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY AS IT GOVERNS YOUR ACQUISITION AND USE OF HMG ADVERTISING INC. dba REDDIE GROUP’S SOFTWARE (AS DEFINED BELOW).
YOUR ACCEPTANCE OF THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, INDICATES YOUR AGREEMENT TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
You may not access HMG Advertising Inc dba Reddie Group (“Reddie”) Software if You are Reddie’s direct competitor, except with Reddie’s prior written consent. In addition, You may not access the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Reddie as of the date You accept this Agreement.
ARTICLE 1 – DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Reddie Software as a Service Agreement.
“Content” means information obtained by Reddie from Reddie content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the Order Form, this Agreement, and any other materials provided by Reddie as part of the Services.
“Hardware” means the Reddie Display, Menu Board, Kiosk, Reddie POS, and/or any other related hardware selected by You via the Order Form.
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
“Non-Reddie Applications” means a Web-based or offline software application that is provided by You or a third-party and interoperates with a Service, including, for example, an application that is developed by or for You or is listed on a Marketplace.
“Order Form” means the ordering document executed by You that accompanies and incorporates this Agreement, which specifies the Services selected by You.
“Person” includes a corporation, company, partnership, firm, association or society, as well as a natural person.
“Services” means the Hardware, Software, and other products and services ordered by You via the Order Form and/or this Agreement and made available by Reddie.
“Software” means the Reddie programs and operating information used to operate the Reddie Display, Kiosk, Menu Board, and/or other related Hardware and selected by You via the Order Form.
“Subscription Term” means the monthly period of time for which you have access and use of the Software.
“User” means an individual who is authorized by You to use the Software, for whom You have ordered the Software, and to whom You (or Reddie at Your request) have supplied a User Authorization. Users may include, but are not limited to, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“User Authorization” means the unique identification and password provided to You by Reddie to access the Software for operation of the Reddie Kiosks and/or other Hardware.
“You” or “Your” means the company and its affiliates or other legal entity and its affiliates accepting this Agreement.
“Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services, excluding Content and Non- Reddie Applications.
ARTICLE 2 – RESPONSIBILITIES OF REDDIE
2.1 Provision of Services. Reddie will (a) make the Services and Content available to You pursuant to this Agreement and the Documentation, (b) provide Standard Support for the Services or Extended Software Hours Support elected by You on the Order Form, and (c) use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for Excluded Interruptions, which include the following: (i) planned downtime (of which Reddie shall make reasonable efforts to provide at least 48 hour electronic notice and shall schedule to the extent practicable during weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday, Eastern Standard Time), and (ii) any unavailability caused by circumstances beyond Reddie’s reasonable control, including but not limited to an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by Reddie; act of government (including the denial or cancellation of export or other license); flood; fire; earthquake; civil unrest; act of terror; strike or other labor problem (other than one involving Reddie’s employees); Internet service provider failure or delay; technical issues concerning the operation of Kamatera Cloud, Microsoft Cloud, and Non- Reddie Applications; or a denial of service attack.
2.2 Protection of Your Data. Reddie shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data. These safeguards include, but are not limited to, measures for preventing access, use, modification, or disclosure of Your Data by Reddie’s personnel except (a) to provide the Services and prevent or address technical problems related to the Services, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure), or (c) as You expressly permit in writing.
2.3 Personnel of Reddie. Reddie shall be responsible for the performance of Reddie’s personnel (including Reddie’s employees and contractors) and their compliance with Reddie’s obligations under this Agreement, except as otherwise specified herein.
ARTICLE 3 – USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the Order Form, (a) Software and Content are purchased as subscriptions, (b) subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Usage Limits. Software and Content are subject to usage limits, including, for example, the quantities specified in the Order Form. The number of Reddie Displays (and/or other Hardware) selected on the Order Form is the quantity of Users required. For each User, Reddie will provide a User Authorization to access the Software. The User Authorization cannot be shared or used by more than one individual (unless such authorization is reassigned in its entirety to another User, in which case the prior User shall no longer have any right to access or use such Software). Should You exceed a contractual usage limit, Reddie may work with You to reduce Your usage to conform to such contractual usage limit. Notwithstanding Reddie’s efforts, if You are unable or unwilling to abide by a contractual usage limit, You shall execute an Order Form for additional quantities promptly upon Reddie’s request and pay for such additional quantities. Failure to execute an Order Form for such additional quantities may result in Reddie’s suspension of Your Services after ten (10) days’ written notice, or termination of Your Services after thirty (30) days’ written notice.
3.3 Your Responsibilities. You shall (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, and legality of Your Data and the means by which Your Data is acquired, (c) use commercially reasonable efforts to prevent unauthorized access to, or use of the Software and Content, and notify Reddie promptly of any such unauthorized access or use, (d) use the Software and Content only in accordance with the Documentation, applicable laws, and government regulations, and (e) comply with the terms of service of Non- Reddie Applications with which You use the Software or Content.
3.4 Software Updates. You consent to electronic updates regarding the performance of the Software, i.e. updates to the Software, Reddie may conduct periodically, without any prior notice, and when pertinent to update the Software.
3.5 Usage Restrictions. You shall not (a) make any Software or Content available to, or use any Software or Content for the benefit of, anyone other than You or the Users; (b) copy, reproduce, distribute, republish, download, display, post, transmit, license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timeshare or service bureau use, or otherwise commercially exploit or make the Services, Documentation, or materials available, in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, to any third-party other than, as expressly permitted under the terms of the Documentation; (c) use or permit use of the Software, including but not limited to uploading, emailing, posting, publishing or otherwise transmitting any material: (i) for any purpose that may menace or harass any Person or cause damage or injury to any Person or property or (ii) for publication of any material that is false, defamatory, harassing or obscene or (iii) to violate privacy rights or promote bigotry, racism, hatred, or harm; (iv) for any purpose which may constitute unsolicited bulk e-mail, “junk mail,” “spam,” or chain letters; (v) for any purpose which may constitute an infringement of intellectual property or proprietary rights; (d) interfere with or disrupt the integrity or performance of any Software or third-party data contained therein, (e) attempt to gain unauthorized access to any Software or Content or its related systems or networks; (f) permit direct or indirect access to, or use of, any Software or Content in a way that circumvents a contractual usage limit; (g) copy the Services or Content or any part, feature, function, or user interface thereof, except as expressly permitted herein, by the Documentation, or by Reddie’s prior written consent; (h) frame or mirror any part of the Services or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes, except as expressly permitted herein, by the Documentation, or by Reddie’s prior written consent; (i) remove or modify any program markings or any notice of Reddie’s or its licensors’ proprietary rights; (j) make the program or materials from the Services available in any manner to any third-party for use in the third-party’s business operations, except as expressly permitted herein, by the Documentation, or by Reddie’s prior written; (k) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services or Content (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third-party in building or supporting, products or services competitive to Reddie; or (l) disclose results of any Services or program benchmark tests without Reddie’s prior written consent.
3.6 Service Tools. Reddie may use tools, scripts, software, and utilities (collectively, the “Tools”) to administer and monitor the Services and to assist to resolve your Reddie support requests. The Tools will not collect, report, or store any of Your data residing in the service production environment, except as necessary to troubleshoot support requests or other problems with the Services. Data collected by the Tools (excluding production data) may also be used to assist in managing Reddie’s product and service portfolio and for license management. You agree that except as set forth in the following paragraph, You may not access or use the Tools, and You will not use or restore the Tools from any tape backup at any time following termination of the Agreement.
3.7 Removal of Content and Non-Reddie Applications. If Reddie is required by a licensor to remove Content, or Reddie receives information that Content provided to You may violate applicable law or third-party rights, Reddie may notify You, and in such event, You agree to promptly remove such Content from Your systems. If Reddie receives information that a Non- Reddie Application hosted on a Service by You may violate Reddie’s Services, applicable law, or third-party rights, Reddie may notify You, and in such event, You agree to promptly disable such Non- Reddie Application, or modify the Non- Reddie Application to resolve the potential violation. If You fail to take such required action in accordance with the above, Reddie may immediately disable the applicable Content, Service, and/or Non- Reddie Application until the potential violation is resolved, in addition to possible suspension of the Services with ten (10) days’ notice and/or possible termination of the Services with thirty (30) days’ written notice should you fail to comply with Reddie’s demands.
ARTICLE 4 – NON-REDDIE PROVIDERS
4.1 Acquisition of Non-Reddie Products and Services. Reddie or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non- Reddie Applications and implementation and other consulting services. Any acquisition by You of such non- Reddie products or services, and any exchange of data between You and any Non- Reddie provider, is solely between You and the applicable Non- Reddie provider. Reddie does not warrant or support Non- Reddie Applications or other Non- Reddie products or services, whether or not they are designated by Reddie as “certified” or otherwise, except as specified in the Documentation.
4.2 Non-Reddie Applications and Your Data. If You install or enable a Non-v Application for use with a Service, You grant Reddie permission to allow the provider of that Non- Reddie Application to access Your Data as required for the interoperation of that Non- Reddie Application with the Service. Reddie is not responsible for any disclosure, modification, or deletion of Your Data resulting from access by a Non- Reddie Application.
4.3 Integration with Non-Reddie Applications. The Services may contain features designed to interoperate with Non- Reddie Applications. To use such features, You may be required to obtain access to Non- Reddie Applications from their providers, and may be required to grant Reddie access to Your account(s) on the Non- Reddie Applications. If the provider of a Non- Reddie Application ceases to make the Non- Reddie Application available for interoperation with the corresponding Service features on reasonable terms, Reddie may cease providing those Service features without entitling You to any refund, credit, or other compensation.
ARTICLE 5 – FEES AND PAYMENT FOR PURCHASED SERVICES
5.1 Fees. You shall pay all fees specified in the Order Form. Except as otherwise specified herein or the Order Form, (i) fees are based on Software and Content purchased and not actual usage, (ii) payment obligations are non-cancelable, (iii) fees paid are non-refundable, and (iv) quantities purchased cannot be decreased during the relevant Subscription Term.
Reddie reserves the right to: (a) change its prices and/or fees; and (b) add or remove any products, included in Your Order Form and/or its website, at any time and for whatever reason by providing You with thirty (30) days’ advanced notice. In the event You fail to object in writing to Your new prices and/or fees, and terminate Your services within five (5) business days from the date on which Reddie publishes the notice, You will have been deemed to have accepted and agreed to pay the updated fees and/or prices. Notice may be given by a general notice on www.reddiegroup.com
5.2 Invoicing and Payment. Payment will be via credit card or electronic fund withdrawal. You will provide Reddie valid and updated credit card information, or valid and updated electronic funds information. If You provide credit card information to Reddie, You authorize Reddie to charge such credit card for the Software selected by You on the Order Form for the initial Subscription Term and all Subscription Terms thereafter, unless you provide forty-eight (48) hour notice of cancellation before the next Subscription Term. Unless Reddie agrees to otherwise, Your first payment will occur within forty-eight (48) hours of execution of this Agreement (or applicable Order Form) (the “Payment Date”) and on the Payment Date for each Subscription Term thereafter. You are responsible for providing complete and accurate billing and contact information to Reddie and notifying Reddie of any changes to such information.
5.3 Overdue Charges. If any amount is not received by Reddie by the Payment Date, or by a date otherwise agreed to by Reddie, due to no fault by Reddie, without limiting Reddie’s rights or remedies as permitted pursuant to this Agreement and relevant law, such amount may accrue late interest at the rate of 1.5% of the outstanding balance per Subscription Term, or the maximum rate permitted by law, whichever is lower.
5.4 Suspension of Software and Acceleration. If any amounts owed by You to Reddie for Services under the Documentation, or amounts owed pursuant to another agreement with Reddie due to a business relationship with Reddie, are more than thirty (30) days overdue, Reddie may, without limiting Reddie’s other rights and remedies as permitted pursuant to the Documentation and relevant law, accelerate Your unpaid fee obligations under all such agreements so that all such obligations become immediately due and payable, as well as suspend the Software to You until such amounts are paid in full. Reddie shall provide at least five (5) days’ notice that Your account is overdue before suspending Your Software and twenty (20) days’ notice before terminating Your Software, in addition to pursuing all rights and remedies as permitted pursuant to this Agreement and relevant law.
5.5 Hardware Responsibilities. Your responsibilities and obligations for the Hardware if leased, are between You and the leasing company, independent of Reddie, and are declared in the 1) Equipment Lease Agreement and 2) Delivery and Acceptance Forms (together, the “Lease Documents”) provided to You. Actions taken pursuant to this Agreement are independent of the Lease Documents, and therefore, a breach of this Agreement does not release You from any obligations pursuant to the Lease Documents and vice versa.
5.6 Payment Disputes. Reddie shall not exercise Reddie’s rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently with Reddie to resolve such dispute.
5.7 Taxes. Reddie’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (“Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Reddie has the legal obligation to pay or collect Taxes for which You are responsible under this Section, Reddie will inform You of such charge, and You will pay that amount, within thirty (30) days of being informed. Failure to pay may lead to suspension of Services and possible acceleration of amounts owed, as provided in Section 5.4, unless You provide Reddie with a valid tax exemption certificate authorized by the appropriate taxing authority. Reddie is solely responsible for taxes assessable against Reddie based on Reddie’s income, property, and employees.
5.8 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Reddie regarding future functionality or features.
ARTICLE 6 – PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Reddie and Reddie’s licensors reserve all of Reddie’s rights, title, and interest in and to the Services and Content, including all of Reddie’s related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2 License by Reddie to Use Content. Reddie grants to You a worldwide, limited-term license, under Reddie’s applicable intellectual property rights and licenses, to use Content acquired by You pursuant to the Order Forms, subject to the Documentation.
6.3 License by You to Host Your Data and Applications. You grant Reddie and Reddie’s Affiliates a worldwide, limited-term license to host, copy, transmit, and display Your Data, and any Non- Reddie Applications and program code created by or for You using the Services, as necessary for Reddie to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Reddie acquires no right, title, or interest from You or Your licensors under this Agreement in or to Your Data or any Non- Reddie Applications or program codes.
6.4 License by You to Use Feedback. You grant Reddie and Reddie’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the operation of the Services.
6.5 Ownership and Restrictions. You affirm that You possess the appropriate permission and/or authority to use the images, photos, and/or logos provided by You to Reddie. In the event of legal action against Reddie or Reddie’s Affiliates pertaining to such images, photos, and/or logos, You shall indemnify Reddie for any and all associated costs and expenses. Reddie or its licensors retain all ownership and intellectual property rights to the Services and Content. Reddie retains all ownership and intellectual property rights to anything developed and delivered under the Documentation. Third-party technology that may be appropriate or necessary for use with some Reddie programs is specified in the Documentation as applicable. Your right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Reddie and not under this Agreement.
6.6 Federal Government End Use Provisions. Reddie provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Reddie to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. You understand that Reddie’s business partners, including any third-party firms retained by You to provide computer consulting services, are independent of Reddie and are not Reddie’s agents. Reddie is not liable for, nor bound by, any acts of any such business partner, unless the business partner is providing services as a Reddie subcontractor on an engagement ordered under the Documentation.
ARTICLE 7 – CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Reddie’s Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of the Documentation, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the respective party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party will not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to the Disclosing Party’s Confidential Information to those of its (and its Affiliates’) employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those set forth herein. Neither party will disclose the terms of the Documentation to any third-party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this Section.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.4 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall extend for a period of five years after such expiration or termination, except with respect to either party’s trade secrets or to audit reports and findings belonging to Reddie’s third party datacenters, all of which shall be held in confidence indefinitely.
ARTICLE 8 – REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into the Documentation and has the legal power to do so.
8.2 Warranties by Reddie. Reddie warrants that the Documentation accurately describes the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Subject to Section 4.3 (Integration with Non- Reddie Applications), Reddie will not materially decrease the functionality of the Services during a Subscription Term, and the Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3 Disclaimers. REDDIE DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT REDDIE WILL CORRECT ALL ERRORS RELATED TO THE SERVICES. YOU ACKNOWLEDGE REDDIE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, MICROSOFT CLOUD, AND KAMATERA CLOUD, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. REDDIE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
ARTICLE 9 – MUTUAL INDEMNIFICATION
You will defend Reddie against any claim, demand, suit or proceeding made or brought against Reddie by a third-party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third-party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Reddie from any damages, attorney fees, and costs awarded against Reddie as a result of, or for any amounts paid by Reddie under a court-approved settlement of, a Claim Against Us, provided Reddie (a) promptly provides You written notice of the Claim Against Reddie, (b) gives You sole control of the defense and settlement of the Claim Against Reddie (except that You may not settle any Claim Against Reddie unless the third-party unconditionally releases Reddie of all liability), and (c) gives You all reasonable assistance, at Your expense.
ARTICLE 10 – LIMITATION OF LIABILITY
10.1 Limitation of Liability. NEITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS PURSUANT TO SECTION 5 (FEES AND PAYMENT FOR SERVICES).
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3 Causes of Action. Except for causes of action related to nonpayment or breach of Reddie’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought beyond the time period provided by New York Statutes as of the date this Agreement is executed by You.
ARTICLE 11 – TERM AND TERMINATION
11.1 Term of Agreement. Commencement of this Agreement is the date you accept the terms and conditions of the Agreement and continues until this Agreement is terminated pursuant to this Agreement.
11.2 Term of Services. Each Subscription Term shall be thirty-six (36) months. Subscription Terms will automatically renew for additional periods equal to the previous Subscription Term, unless either party gives the other party notice of non-renewal thirty (30) days before the end of the relevant Subscription Term. The pricing during an automatic renewal term will be the same as that during the immediate prior Subscription Term, unless Reddie provides You written notice of a pricing increase at least ten (10) days before the end of that prior Subscription Term, in which case the pricing increase will be effective the following Subscription Term and thereafter.
11.3 Termination. If either party breaches a material term of this Agreement and fails to correct the material breach within thirty (30) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate this Agreement. A party may also terminate this Agreement if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. The non-breaching party may agree in its sole discretion to extend the thirty (30) period for so long as the breaching party continues reasonable efforts to cure the breach.
11.4 Payment upon Termination. If Reddie terminates the Agreement in accordance with Section 11.3 (Termination), You must pay within thirty (30) days all amounts which have accrued prior to such termination, as well as all sums plus related taxes and expenses, remaining unpaid for the Services for the remainder of the Subscription Term. In no event will termination relieve You of Your obligation to pay all sums remaining unpaid to Reddie for the period prior to the effective date of termination.
11.5 Your Data Portability and Deletion. Upon request by You made within thirty (30) days of the effective date of termination of this Agreement, Reddie may permit you to access the Services solely to the extent necessary for You to retrieve a file of Your Data to export or download. After the thirty (30) day period, You agree and acknowledge that Reddie has no obligation to retain Your Data and that Your Data may be irretrievably deleted after thirty (30) days following the termination of this Agreement. Provisions that survive termination of the Agreement are those relating to limitation of liability, infringement indemnity, payment, and other which by their nature are intended to survive.
11.6 Surviving Provisions. The Sections titled “Fees and Payment for Services,” “Proprietary Rights and Licenses,” “Confidentiality,” ” Representations, Warranties, Exclusive Remedies, and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion ,” “Contracting Parties, Notices, Governing Law, and Jurisdiction,” and “General Provisions” will survive any termination or expiration of the Documentation.
ARTICLE 12 – CONTRACTING PARTIES, NOTICES, GOVERNING LAW, AND JURISDICTION
12.1 Manner and Time of Notice. If you have a dispute with Reddie or if you wish to provide a notice under the Indemnification section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You shall promptly send written notice to: HMG Advertising Inc. dba Reddie Group 31 W 34th Street, Suite 8107, New York NY 10001, USA, Attention: Legal Department. Reddie may give notice applicable to Reddie’s Software customer base by means of a general notice on the Reddie website or portal or by electronic mail to Your e-mail address as designated on the Order Form or by written communication sent by first class mail to Your address designated on the Order Form. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided that email shall not be sufficient for notices of termination or an indemnification claim). Billing-related notices to You shall be addressed to the relevant billing contact designated on the Order Form. All other notices to You shall be addressed to Your contact information designated on the Order Form.
12.2 Agreement to Governing Law and Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF NEW YORK.
ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE EXCLUSIVELY INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK OR THE COURTS OF THE STATE OF NEW YORK, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH IN THIS AGREEMENT SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
12.3 Jury Waiver. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATES TO THIS AGREEMENT, ANY AND ALL TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE PERFORMANCE OF THIS AGREEMENT, OR THE RELATIONSHIP CREATED BY THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THIS AGREEMENT OF THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. NO PARTY HAS MADE OR RELIED UPON ANY ORAL REPRESENTATIONS TO OR BY ANY OTHER PARTY REGARDING THE ENFORCEABILITY OF THIS PROVISION. YOU HAVE READ AND UNDERSTAND THE EFFECT OF THIS JURY WAIVER PROVISION.
ARTICLE 13 – GENERAL PROVISIONS
13.1 Export Compliance. The Services, Content, other technology Reddie makes available, and derivatives thereof may be subject to export laws and regulations of the United States. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
13.2 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Reddie’s employees or agents in connection with the Documentation. Reasonable gifts and entertainment provided in the ordinary course of business does not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Reddie’s at finance@studiohmg.com
13.3 Entire Agreement and Order of Precedence. This Agreement (including the information which is incorporated into the Agreement by written reference) is the entire agreement between You and Reddie regarding Your use of the Software and Content, and this Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter. It is expressly agreed that the terms of this Agreement shall supersede the terms in any purchase order or other non- Reddie document and no terms included in any such purchase order or other non- Reddie document shall apply to the Software ordered. Reddie may amend and/or modify this Agreement (and/or any Exhibits attached hereto and incorporated herein by reference) in its sole and absolute discretion by means of a general notice on the Reddie website. No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted.
13.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including the Order Form), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
13.5 Relationship of the Parties. The parties are independent contractors. The Documentation does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party is responsible for paying its own employees, including employment-related taxes and insurance.
13.6 Third-Party Web Sites, Content, Products, and Services. Reddie’s Content licensors shall have the benefit of Reddie’s rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement. The Services may enable You to add links to web sites and access to content, products, and services of third parties, including users, advertisers, affiliates, and sponsors of such third parties. Reddie is not responsible for any third-party websites or third-party content provided on or through the Services and you bear all risks associated with the access and use of such websites and third-party content, third-party products, and third-party services.
13.7 Audit. Reddie may audit your use of the Services. You agree to cooperate with Reddie’s audit and provide reasonable assistance and access to information. In the event Reddie discovers use of the Services in excess of Your rights, You agree to pay within thirty (30) days of written notification any applicable fees. Failure to timely pay, may result in suspension of termination of Your Services in accordance with Section 5.4. You agree that Reddie shall not be responsible for any of Your costs incurred in cooperating with such audit.
13.8 Statistical Information and Customer Reference. Reddie may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Your data and/or identify Your confidential information and/or include Your company’s name. Reddie retains all intellectual property rights in such information.
13.9 Force Majeure. No party shall be responsible for failure or delay of performance caused by: an act of war, hostility, or sabotage; act of God; electrical, internal, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party Reddie and You agree to use reasonable efforts to mitigate the effect of a force majeure occurrence. This Section does not excuse either party’s obligations to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.
13.10 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.11 Severability. If any provision of the Documentation is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the Documentation will remain in effect.