Relo Master Services Agreement

This Master Services Agreement (this “MSA,” and together with any applicable Exhibit(s), the “Agreement”) is incorporated by reference into any Exhibit executed by The Reynolds and Reynolds Company (“Reynolds”) and Customer (as identified in the Exhibit) which states that it is subject to this MSA. This Agreement will govern all access to and use of the Equipment, Platform, and Support. The Equipment, Platform, and Support are referred to collectively herein as the “Services.” Reynolds and Customer are referred to herein individually as “Party” and collectively as “Parties.”

Section 1. Obligations of the Parties

  1. During the term and in exchange for the fees set forth in the applicable Exhibit, Reynolds agrees to provide Customer with certain equipment (the “Equipment”), access to an application that is designed be used in concert with the Equipment (the “Platform”), and certain maintenance and support services (the “Support”) as set forth in the Exhibit and described in more detail herein.

Section 2. Fees and Payment

  1. Billing shall begin on the effective date listed in the applicable Exhibit (the “Effective Date”). Customer shall pay Reynolds all fees set forth in the applicable Exhibit in return for the Services. Unless expressly stated otherwise on the Exhibit, Fees shall be due and payable within thirty (30) days from the date of each invoice. Customer shall pay Reynolds a late fee of two percent (2.0%) per month or the maximum non-usurious rate permitted by law, whichever is lower, on all past due amounts.
  2. Customer agrees to pay all taxes in connection with transactions under this Agreement that Reynolds is at any time obligated to pay or collect according to the laws of the state where Customer is domiciled. Such taxes may include, but are not limited to, state and local sales and use taxes, or other such taxes, including taxes which may be billed retroactively as a result of an audit imposed by any government entity on the provision, sale, or use of any product or service provided under this Agreement, but excluding any taxes based on the net income of Reynolds. If Reynolds is obligated by state law to pay or collect such taxes, then Customer shall either pay such taxes through Reynolds, or Customer shall provide to Reynolds written proof of direct payment of such taxes to the taxing authority.
  3. Reynolds shall have the right to revise or increase fees at any time without further notice to Customer. Such increase will be by an amount based on the percentage rate of price increases for all goods and services as determined by the Bureau of Labor Statistics of the U.S. Department of Labor (Consumer Price Index) plus two percent (2%) or to Reynolds’ then-prevailing price. The foregoing limitation does not apply to third party fees, costs, and related price increases which may be passed along to Customer under this Agreement and will not be included in the calculation above.
  4. No statement on any check or any letter accompanying any payment will be deemed an accord and satisfaction, and Reynolds may accept such payment without prejudice to Reynolds’ right to recover the balance of amounts due under this Agreement or pursue any other remedy available in this Agreement, at law, or in equity.
  5. The Parties agree that, in the event Customer defaults under this Agreement, Reynolds is entitled to damages for breach of contract.  The Parties, further, agree that Reynolds will be entitled to liquidated damages in an amount equal to seventy percent (70%) of the total fees otherwise payable by Customer during the Term that would have remained after default (except that, if the applicable Term has less than six (6) months remaining, Customer agrees to pay 70% of six (6) months of such fees). These liquidated damages are a compromise which Customer and Reynolds have determined to be fair and reasonable in view of the harm to Reynolds and the difficulties of proof of loss and the impracticality of determining same.  The liquidated damages apply only for damages related to fees which accrue after default.  The Parties agree that this provision does not constitute a penalty.  In addition to the liquidated damages, Reynolds will be entitled to all damages attributable to Customer’s default which are not based upon fees due after default, including, but not limited to, any one-time license fees, set-up fees, third party fees and any other fees for Services provided prior to default.

Section 3. Default

  1. In the event that Customer defaults in any of the following ways: (1) by breaching any curable obligation under this Agreement, including, but not limited to, any payment obligation, and Customer does not cure that breach within ten (10) days of receipt of written notice from Reynolds; (2) by breaching any non-curable obligation under this Agreement; (3) by becoming bankrupt or insolvent, or if a petition is filed by or against Customer as bankrupt, insolvent, or a debtor under any federal or state bankruptcy, insolvency or reorganization law; (4) by ceasing or threatening to cease to carry on Customer’s business; (5) by making or proposing to make any sale of Customer's assets in bulk or out of the ordinary course of Customer's business; or (6) if Reynolds, in good faith, deems Customer’s continued performance hereunder to be insecure, Reynolds may pursue any one or more of the following remedies: (a) suspend all or any portion of the Services; (b) declare all amounts due and to become due under the Agreement, immediately due and payable; (c) terminate any or all licenses granted pursuant to this Agreement and demand that Customer immediately cease use of the all or any portion of the Services provided by Reynolds hereunder; and, in the event that Customer does not voluntarily comply with such demand, Reynolds may take measures to disable the Services remotely; (d) terminate an Exhibit(s) or this Agreement; (e) retain all or such portion of payments made by Customer hereunder as may be necessary to compensate Reynolds for any damage, loss, liability, cost or expense (including, without limitation, payments to third-parties) caused by such breach, default, or failure, and receive any additional payments from Customer as may be necessary to compensate Reynolds as described herein; (f) enter Customer’s premises to recover the Equipment; and/or (g) pursue any additional or alternative remedies available at law or in equity including an action for breach of contract or a declaratory action to resolve any dispute over the rights and obligations of either Party under the Agreement. Customer agrees to reimburse Reynolds for any and all expenses, including reasonable attorneys' fees, that Reynolds may incur in collection of amounts due under this Agreement, in undertaking the remedies provided for by this Agreement, and in the enforcement of this Agreement.

 

Section 4. Term and Termination

  1. This Agreement shall remain in full force and effect from the Effective Date and shall continue through the end of the Term.
  2. Upon expiration of the term identified in the Exhibit (the “Initial Service Term”), this Agreement shall renew for like periods (each a “Renewal Term” or together with the Initial Service Term, the “Term”) unless either Party gives the other written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current Term.
  3. Notwithstanding anything to the contrary stated herein, Reynolds may terminate this Agreement, or any obligations hereof, upon thirty (30) days’ prior written notice to Customer.

Section 5. Equipment

  1. The Services purchased by Customer hereunder are subscription Services only. Unless specifically stated otherwise in an Exhibit, title to the Equipment shall remain with Reynolds at all times. Nothing in this Agreement shall be construed as a transfer of ownership or any proprietary interest in the Equipment to Customer. Customer agrees to grant Reynolds access to the Equipment at any time upon Reynolds’ request.
  2. Customer shall exercise reasonable care in its operation and handling of the Equipment and shall use the Equipment solely for its internal business purposes. Customer shall be liable for all loss, damages, or destruction of the Equipment, provided that Customer will not be held responsible for normal wear and tear.
  3. Customer agrees to return the Equipment to Reynolds upon termination or expiration of this Agreement or any other time required by Reynolds, in good working condition, normal wear and tear excepted. Customer shall not pledge, encumber, or otherwise dispose of Equipment.
  4. Customer understands and agrees that purchase and installation of the Services is contingent on a satisfactory inspection of Customer’s Wi-Fi signal strength by a member of the Reynolds’ networking team for the pathway to be used by the Services.  Enrollment/installation could be delayed based on the findings of that inspection, and the time involved to rectify any noted issues.
  5. Customer expressly acknowledges the following:
    1. The Equipment needs a clear, unobstructed pathway throughout its travel path.  Customer must commit to keeping the Equipment’s pathway clear 100% of the time, including the airspace above the Equipment’s pathway.  If Equipment must travel between bays in order to get out to the shop, the pathway between bays must be unobstructed at all times. There can be no hoses or cables running across this pathway.  Doors on vehicles in bays adjacent to the pathway cannot come into the pathway when open. 
    2. Ramps in the Equipment’s pathway cannot exceed 6 degrees (1:9.5 in slope).
    3. Equipment is not rated for outdoor usage.  Each piece of Equipment can service only one building and cannot travel outside. 
    4. Service bays must have room for Equipment to drop the cargo rack.  The path to these points must always be unobstructed.
    5. Each piece of Equipment requires its own charging point.  Power must be available at this location. 
    6. The pathway to the charging point must be clear twenty-four (24) hours per day.
    7. Each piece of Equipment requires a parking spot to return to when no tasks are assigned and may be the same spot as the charging point.
    8. Customer must agree to provide unrestricted outbound internet access for the Services to function.
  6. Customer will be responsible for all freight, handling, and insurance charges for all shipments to or from Customer. Customer acknowledges that any and all delivery and installation dates provided are approximate and any provided freight charges are an estimate. Actual delivery and installation dates and freight charges may vary. Customer further acknowledges and agrees that Reynolds shall not be liable for loss or damage due to delay in delivery or installation.
  7. Customer acknowledges and agrees that Reynolds shall not be liable in any way for any loss, damage, injury, or expense arising out of or related to Customer’s use, operation, or possession of the Equipment.

Section 6. Platform

  1. Subject to this Agreement and the end user license agreement posted on the Platform (the “EULA”), Reynolds grants to Customer a personal, non‐exclusive, non‐transferable, limited right for the Term to access and use the Platform for Customer’s internal business purposes only. Employees of Customer who are authorized by Customer to use the Platform on its behalf as permitted hereunder shall be referred to as “Authorized Users.” Reynolds reserves the right to modify the Platform from time to time, at its discretion.
  2. The Platform may only be accessed by Authorized Users who (a) have been issued a valid password, and (b) have agreed to the EULA. Customer is responsible for Authorized User’s compliance with the EULA and assumes full responsibility and liability with respect to the use of the Platform by Authorized Users, as well as any unauthorized use or access to the Platform. Customer shall institute security, contractual, and/or functional procedures and processes as necessary to monitor use of passwords and to protect, and require Authorized Users to protect, their passwords and to restrict access to the Platform only to Authorized Users. At a minimum, Authorized Users shall be required to maintain their user IDs and passwords in strict confidence and to change their passwords from time to time. Customer is fully responsible for any use of data, customer information, or services obtained through the Platform using passwords assigned to Authorized Users. All use of the Platform by Customer shall be governed by the terms of this Agreement and the EULA.
  3. Customer will not sell, lease, rent, provide timeshare services, distribute or otherwise make the Platform available to third-parties. Customer will not, and will ensure that no user, whether or not authorized by Customer, will: (a) copy, reverse engineer, modify, duplicate, decompile, disassemble, re‐ engineer, or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Platform, (b) copy or replicate, or attempt to copy or replicate, the design, structural framework, features or components of the Platform, (c) create derivative works of the Platform; or (d) use the Platform in whole or in part for any purpose, except as expressly provided under the Agreement. Customer expressly acknowledges that the Platform constitutes valuable proprietary information, that it includes confidential information, and that it constitutes a trade secret that embodies the substantial creative efforts of Reynolds. Customer further acknowledges that the provisions contained in this Section are reasonable and necessary to protect Reynolds’ legitimate interests and agrees that the remedies at law for violation of this Section may be inadequate, that such violation may cause irreparable injury to Reynolds, and that Reynolds shall be entitled to preliminary injunctive relief and other injunctive relief against such violation without the necessity of proving actual damages or posting a bond.

Section 7. Support

  1. Equipment - Remedial Maintenance Service.
    1. Reynolds agrees to perform Remedial Maintenance Service on the Equipment during the Term. “Remedial Maintenance Service” shall mean repair service and/or technical phone support for failures which result from normal use and excludes any failures resulting from the exclusions set forth in this Agreement.
    2. Customer acknowledges that any Remedial Maintenance Services performed outside of Reynolds’ regular business hours will be billed additionally to Customer at Reynolds’s then-current rates for such services, including travel costs.
  2. Platform – SaaS Support Service
    1. Reynolds will provide telephone support services to address questions related the ordinary use of the Platform licensed by Reynolds to Customer hereunder (the “SaaS Support Service” or together with Remedial Maintenance Service, “Support”). Such SaaS Support Service will not include any customization of, or updates or changes to, the Platform.
  3. The date and time of any Support performed hereunder will be scheduled by Reynolds.
  4. Support will be available during Reynolds’ regular business hours, excluding holidays.
  5. For avoidance of doubt, Support does not include:
    1. Custom development or integration services;
    2. Issues caused by moving, misuse, unauthorized modifications, attachment of unauthorized equipment, or use outside of documented specifications;
    3. Failures caused by Customer’s negligence, accident, abuse, misuse, power surges, or operator error;
    4. Failure by Customer to perform regular user maintenance such as cleaning the Equipment;
    5. Failures caused by acts of God, which include but are not limited to, lightening, strikes, floods, war, fire, sabotage, terrorist act, riot, strike, or other labor unrest, or any cause other than normal use;
    6. Troubleshooting or support for issues caused or related to third-party hardware, software, networks, or services not provided by Reynolds under this Agreement;
    7. Formal training, user education, or onboarding services beyond basic usage guidance unless separately contracted;
    8. Recovery of lost or corrupted data;
    9. Remediation of security incidents, breaches, or vulnerabilities; or
    10. Support for Customer’s internal network, internet connectivity, or firewall configurations.

Section 8. Intellectual Property

  1. Customer acknowledges that the Equipment used by Customer pursuant to this Agreement incorporates proprietary technology owned by a third party (the “Third Party Owner”). All rights, title, and interest in and to such technology, including all intellectual property rights therein, are and shall remain the exclusive property of Third Party Owner and/or its licensors.
  2. Customer acknowledges and agrees that the Equipment provided by Reynolds under this Agreement incorporates or relies upon technology and services owned or licensed by Third Party Owner. Use of the Equipment is subject to the applicable third-party terms and conditions. By entering into this Agreement and using the Equipment, Customer agrees to comply with all such third-party terms, as may be updated from time to time. Reynolds shall make such third-party terms available to Customer upon request. Customer’s failure to comply with any applicable third-party terms may result in suspension or termination of access to the Equipment, without liability to Reynolds. Reynolds shall not be responsible for any acts or omissions of Third Party Owner.
  3. The Platform provided by Reynolds hereunder is and shall remain the exclusive property of Reynolds. All rights, title, and interest in and to the Platform, including all intellectual property rights therein, are and shall remain the exclusive property of Reynolds and/or its licensors.
  4. Customer acknowledges and agrees that it shall not, by virtue of using the Equipment or Platform, obtain any rights in any intellectual property, including, but not limited to, any intellectual property rights related to any of the software, templates, screen and file formats, interface protocols, formats and development tools and instructions, hardware, processes, trade secrets, instruction manuals, enrollment authorization, authentication and other business processes, proprietary information, or distribution and communication networks used to provide the Equipment or Platform. Any interfaces and software provided to Customer in order to provide connectivity to the Equipment or Platform shall be used by Customer and any Authorized Users only for the period during which this Agreement is in effect and only in accordance with the terms of this Agreement. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices appearing on the Equipment or the Platform as provided by Reynolds.

Section 9. Safeguards Rule

The Federal Trade Commission (FTC) Standards for Safeguarding Customer Information (16 CFR Part 314) (the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (GLB) Act. The Safeguards Rule requires those parties to secure records and information from and about customers. This Section applies to the extent Customer is subject to the Safeguards Rule, Customer shares with Reynolds its “Customer Information” (as defined in the Safeguards Rule), and in circumstances in which Reynolds is a “Service-Provider” (as defined in the Safeguards Rule) with regard to such information.

  • Reynolds will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of Customer’s Customer Information.
  • Customer will develop, implement and maintain a comprehensive information security program sufficient to ensure the security, integrity, and confidentiality of Customer Information of the type shared with or disclosed to Reynolds. It is also Customer’s responsibility to: (i) disclose to Reynolds any relevant risks Customer identifies regarding Customer’s Customer Information; and (ii) identify the employee(s) who coordinate Customer’s Information Security Program.
  • Customer is solely responsible for its compliance obligations under the Safeguards Rule. Reynolds’ provision of the Services to Customer does not constitute, nor shall it be deemed to constitute, a guarantee that Customer’s business is in compliance with any statute or regulation. Reynolds’ review or approval of any of Customer’s systems, applications, processes, or procedures does not constitute, nor shall it be deemed to constitute, the assumption by Reynolds of any responsibility or liability for compliance by Customer with any statute or regulation.
  • Customer agrees that Customer and third parties acting on Customer’s behalf have no right or authority to access or audit Reynolds’ systems, applications, processes, procedures, or practices, except to the extent specifically authorized by Reynolds.

If Customer believes Reynolds’ efforts to safeguard Customer Information affect Customer in a materially adverse manner and Customer promptly notifies Reynolds in writing stating the basis of Customer’s belief, Reynolds will work with Customer in good faith to resolve Customer’s complaint. If after sixty (60) days Customer and Reynolds are unable to resolve Customer’s complaint, then, at Reynolds’ option, Reynolds will either permit Customer to discontinue the affected Service without liability or Customer will submit to binding arbitration as described in the Agreement. Customer shall pay all amounts incurred and remain otherwise fully obligated for all Services other than the discontinued Service up through the effective date of such discontinuance or arbitration decision. THIS IS CUSTOMER’S ONLY REMEDY AND REYNOLDS’ ONLY OBLIGATION UNDER THIS SECTION.

Section 10. Data

  1. Customer grants Reynolds a non-exclusive, royalty free license to use, solely in connection with performing its obligations under this Agreement, any and all Customer data (including, but not limited to, Customer’s employee and customer data) created, provided, accessed, generated, or processed hereunder (“Customer Data”). Customer approves and grants Reynolds the nonexclusive non-terminable, royalty free license to use Customer Data in connection with other products and services offered by Reynolds and its affiliates.
  2. Customer represents and warrants that Customer has the right to use, and the right grant Reynolds the right to use, all Customer Data and information provided to or accessed by Reynolds under the terms hereof and that all Customer Data provided to Reynolds hereunder was collected in accordance with applicable law.
  3. Customer agrees that Reynolds may share Customer Data with third-parties to the extent necessary to provide customer the Services.
  4. CUSTOMER AGREES THAT CUSTOMER, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, AND ANY OTHER INDIVIDUAL WHO GAINS ACCESS TO THE SERVICES WILL NOT USE THE SERVICES DIRECTLY OR INDIRECTLY FOR UNLAWFUL, IMPROPER, OR PROHIBITED PURPOSES AND THAT IT IS CUSTOMER’S RESPONSIBILITY TO ADVISE ALL INDIVIDUALS WHO HANDLE AND/OR COME IN CONTACT WITH THE SERVICES ABOUT HOW INFORMATION ABOUT THEM MAY BE COLLECTED, USED, AND DISCLOSED BY REYNOLDS AND TO TAKE ANY AND ALL SUCH ACTIONS AS NECESSARY TO COMPLY WITH ALL LAWS, RULES, AND REGULATIONS APPLICABLE TO USE OF THE SERVICES, INCLUDING ACQUIRING ALL NECESSARY CONSENTS.

Section 11. Disclaimers

  1. REYNOLDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. REYNOLDS DOES NOT WARRANT THAT THE SERVICES WILL ACHIEVE ANY SPECIFIC LEVEL OF USABILITY OR RELIABILITY, THAT ANY SUPPORT PROVIDED UNDER THIS AGREEMENT WILL RESULT IN REPAIRS, OR THAT THE SERVICES WILL BE ENHANCED, IMPROVED, OR OTHERWISE MODIFIED. CUSTOMER ACKNOWLEDGES THAT THE PERFORMANCE OF THE SERVICES ENTAILS THE POSSIBILITY OF SOME HUMAN AND MACHINE ERRORS, INCLUDING OMISSIONS, DELAYS, AND LOSSES. CUSTOMER AGREES THAT REYNOLDS SHALL NOT BE LIABLE ON ACCOUNT OF ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. FURTHER, THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND REYNOLDS MAKES NO WARRANTIES, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, OR OTHER TRANSACTIONS CONTEMPLATED HEREIN. REYNOLDS FURTHER DISCLAIMS ANY LIABILITY THAT RESULSTS FROM CUSTOMER’S USE OF THE SERVICES. THERE ARE NO WARRANTIES THAT THE EQUIPMENT, PLATFORM, OR SUPPORT WILL BE ERROR-FREE OR RESULT IN UNINTERRUPTED OPERATION OR USE WITHOUT ERROR.

Section 12. Limitation of Liability

  1. IN NO EVENT SHALL REYNOLDS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE, OR ANY OTHER DAMAGES, OR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF REYNOLDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REYNOLDS EXPRESSLY DISCLAIMS ANY AND ALL IABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT.

Section 13. Indemnification

  1. Customer agrees to indemnify Reynolds, hold Reynolds and its licensors harmless, and defend Reynolds and its licensors from any and all claims, actions, allegations, and damages, including attorneys’ fees, arising out of (1) the Services; (2) Customer’s use of the Services; or (3) Customer’s breach of any of Customer’s representations or warranties as set forth herein.

Section 14. Representations and Warranties

  1. Customer represents and warrants:
    1. All Customer Data provided to Reynolds hereunder has been collected in accordance with all applicable laws;
    2. Customer has all rights necessary to grant Reynolds the license granted herein for Reynolds’ use of Customer Data and its distribution to third parties;
    3. Customer will comply with each of its obligations set forth herein;
    4. Customer will collect all consents required by applicable law in its use of the Services; and
    5. Customer will comply with all applicable laws in its use of the Services.

Section 15. Insurance

Customer agrees to maintain the following types of insurance coverage during the term of this Agreement with insurers with an A.M. Best's Rating of not less than A-: VII or its equivalent:

Commercial General Liability/Third Party Liability (Occurrence Form)

$1,000,000  Each Occurrence including Contractual Liability

$2,000,000  General Aggregate

$2,000,000  Products & Completed Operations Aggregate

Workers' Compensation - Statutory Benefits

Employer’s Liability

$1,000,000  Bodily Injury by Accident - Each Accident

$1,000,000  Bodily Injury by Disease - Each Employee

                         $1,000,000  Bodily Injury by Disease - Policy Limit

All risk property (physical damage)

                         $10,000 each occurrence

Reynolds shall be included as an additional insured with respect to Commercial General Liability insurance as required by written contract, but only for liability arising out of the operations of the named insured and subject to policy terms, conditions and exclusions.  General Liability insurance will be primary and non-contributory and a waiver of subrogation will be provided with respect to Commercial General Liability.  Customer shall provide a certificate of insurance reflecting the coverages and limits of liability provided upon request of Reynolds.  No such insurance coverage may be cancelled or limits lowered without thirty (30) days’ advance written notice to Reynolds.

Section 16. Confidentiality

  1. Customer shall treat as confidential and not disclose or otherwise make available any of Reynolds’ Confidential Information (defined below), in any form, to any person other than agents, employees, or consultants of Customer who need to know such information for Customer to utilize the Services. Customer will instruct its agents, employees and consultants who have access to Confidential Information to keep such information confidential by using the same care and discretion that Customer uses with respect to its own confidential or proprietary information and trade secrets, but in no event, less than the amount of care a reasonably prudent businessperson would use under the circumstances. Customer will only disclose such confidential information to those of its personnel on a “need to know” basis. Customer will notify Reynolds within forty-eight (48) hours of any breach of confidentiality.
  2. The Parties further acknowledge that the Services, information, and manuals furnished by Reynolds pursuant to this Agreement constitutes the proprietary and confidential information of Reynolds and its licensors, including, without limitation, documentation, knowledge and information comprising or relating to any technical or non-technical data, algorithms, formulae, patterns, compilations, programs, devices, methods, know-how, techniques, software, processes, procedures, improvements, models, manuals, marketing and promotional material, financial data and other information and data incorporated in or used in connection with the Services (collectively, “Reynolds’ Confidential Information”). The Parties acknowledge that Reynolds’ Confidential Information constitutes a valuable proprietary asset of Reynolds and its licensors which derive independent commercial value from not being generally known or readily ascertainable through independent development or reverse engineering by persons who can obtain economic value from its disclosure or use. Accordingly, Customer agrees that it will not, directly or indirectly divulge, disclose, copy, reverse engineer, communicate or otherwise misuse Reynolds’ Confidential Information or utilize Reynolds’ Confidential Information for its own personal benefit or for any purpose other than one pertaining to exercising its rights or performing its obligations hereunder.

Section 17. Dispute Resolution

  1. The Parties mutually agree that any and all claims, disputes, or controversies arising out of or relating to this Agreement will be submitted to mandatory arbitration in accordance with the commercial rules of the American Arbitration Association (“AAA”). All arbitrators shall be attorneys and shall swear an oath of neutrality. After the arbitration proceeding has been completed, either Party may seek enforcement of the award in accordance with the Federal Arbitration Act. Aside from filing or other fees required to initiate the arbitration, all fees of the arbitration will be split evenly between the Parties unless an award is made by the arbitrators as otherwise allowed by this Agreement. The arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of the dispute between the Parties. If a Party does not pay its respective share of arbitration fees, then all claims (including counterclaims) of the non-paying Party shall be dismissed by the arbitrators or AAA, and the non-paying Party shall not be allowed to bring any further claims in the arbitration for affirmative relief. The non-paying Party may still participate in the arbitration to defend claims brought against it. No claims or disputes between the Parties may be resolved by class action or class arbitration. The Parties agree that any arbitration proceeding will take place in Harris County, Texas, unless otherwise agreed in writing by the Parties. At Reynolds’ sole discretion: (a) collection of accrued amounts owing to Reynolds, and (b) enforcement and protection of Reynolds’ intellectual property rights, each may be excepted from this arbitration requirement, and the Parties agree to be subject solely and exclusively to the jurisdiction of the courts of Harris County, Texas for any such collection efforts or intellectual property protection efforts.

Section 18. Miscellaneous

  1. Entire Agreement. This Agreement represents the entire agreement of the Parties on the subject matter it contains and replaces any prior oral or written agreement between the Parties on its subject matter. This Agreement may be modified by Reynolds at any time without notice to Customer. Such modifications shall be deemed effective when posted online. In the case of a conflict between this Agreement and an Exhibit, the Exhibit shall control.
  2. Amendment. Customer may only change the terms of this Agreement by a writing mutually agreed upon and signed by the Parties
  3. Waiver. No action or inaction by either Party shall be construed to be a waiver of any rights or remedies available to it. All waivers of rights hereunder must be in a writing signed by each Party.
  4. Notices. Any notice required or permitted to be sent under this Agreement shall be delivered by hand, or mailed by registered or certified mail, return receipt requested, proper postage prepaid, or by nationally recognized overnight courier (i.e., Federal Express, UPS). All notices sent to Reynolds hereunder shall be sent to The Reynolds and Reynolds Company, Attn: Sales Administration, One Reynolds Way, Dayton, Ohio 45430. All notices sent to Customer will be sent to the address set forth in the Exhibit. Notice so sent will be deemed effective upon receipt or refusal to receive. A Party may change their notice address by complying with the notice provisions of this paragraph.
  5. Governing Law/Severability. This Agreement shall be governed by the laws of the State of Texas, exclusive of choice of law rules.  If any of the provisions or portions of this Agreement are determined to be invalid or unenforceable, such invalid provisions or invalid portions shall be severed from this Agreement, and all other provisions hereof shall remain in full force and effect. 
  6. Limitation. No action, regardless of form, arising out of transactions under this Agreement may be brought by either Party more than one (1) year after the cause of action has occurred.  This limitation shall not apply to collection of any accrued amounts owed by Customer to Reynolds.
  7. Assignment. Customer may not assign this Agreement without the prior written consent of Reynolds, and any attempt to do so shall be void and of no effect.  Reynolds may freely assign any of its rights and responsibilities under this Agreement in whole or in part without the consent of, or notice to, Customer.
  8. Binding Nature/Compliance with Laws. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns as permitted hereunder.  Customer represents and warrants that Customer shall comply with all applicable federal, state, and local laws, rules, and regulations.
  9. Survival. Any terms of this Agreement, which by their nature extend beyond its termination, cancellation, or expiration, remain in effect until fulfilled and apply to respective successors and permitted assignees.
  10. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation of this Agreement.
  11. Independent Contractors. Customer and Reynolds are independent contractors and shall not be deemed to be partners, joint venturers, or each other’s employees or agents.  Customer is not authorized to create or assume any obligation on behalf of Reynolds.
  12. Joint and Several Liability. The Parties acknowledge and agree that each individual dealership location that uses the Services provided under this Agreement is jointly and severally liable for the entire contractual obligation.  Customer represents that the person executing the Agreement on behalf of Customer is authorized to bind Customer and each dealership location to this acknowledgement of joint and several liability, and that no further signatures are required.
  13. Construction. The Parties waive any common law or statutory rule of construction that ambiguity should be construed against the drafter of this Agreement and agree that the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.
  14. Respect for Personnel. Customer acknowledges and agrees that Reynolds’ personnel have been acquired and trained by Reynolds at considerable expense. Throughout the term and for a period of one (1) year following the expiration or termination of this Agreement, Customer shall not knowingly solicit for employment or employ any employee of Reynolds that has been directly involved in the negotiation or performance of this Agreement until the expiration of one (1) year following such employee’s termination of employment with Reynolds. If Customer fails to abide by the restrictions contained herein, then Customer agrees to pay to Reynolds a placement fee of one hundred and fifty percent (150%) of the former employee’s total gross earnings during the employee’s last twelve (12) months of employment by Reynolds, which Customer shall pay to Reynolds within ten (10) days of demand.
  • Force Majeure. Reynolds shall not be liable for delay or failure to perform under this Agreement which delay or failure is due to acts of God, acts of war, governmental act, labor disputes, riots, terrorism, power supply or telecommunications failure, or any other causes not subject to Reynolds’ reasonable control.