Rea Vantage
This Software as a Service Agreement (“Agreement”) is integrated into the quote, order form, statement of work, or other ordering document (each, a “Statement of Work”) that is signed by Rea & Associates, Inc. (“Rea”) and the customer identified therein (“Customer”). Each of Rea and Customer is a “Party” and together, the “Parties.”
I. Structure
1.1 Statement of Work. This Agreement sets forth the terms and conditions on which Rea may make available to Customer the Services (defined below) as expressly identified in the Statement of Work.
1.2 Addenda. The Statement of Work may reference one or more additional documents that contain terms relevant to the Services (each, an “Addendum”).
1.3 Order of Precedence. Any conflict between the Statement of Work, an Addendum, or this Agreement will be resolved according to the following order of precedence: (1) the Statement of Work; (2) the Addendum; and (3) this Agreement.
1.4 Term. The initial term of this Agreement is set forth in the Statement of Work (“Term”). This Agreement will automatically renew unless (i) Rea presents a renewal Statement of Work to Customer either via email or in writing; (ii) earlier terminated pursuant to this Agreement’s express provisions; or (iii) either Party gives the other Party notice of non-renewal either via email or in writing at least thirty (30) days prior to the expiration of the then-current Term.
1.5 Services by Affiliates. Rea’s Affiliates may perform any of Rea’s obligations under this Agreement. If a Rea Affiliate executes the Statement of Work that is subject to this Agreement, then for the purposes of that Statement of Work only all references in this Agreement to “Rea” shall be deemed to refer instead to such Rea Affiliate. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations. Rea and all Rea Affiliates are the “Rea Group.”
II. Access and Use
2.1 Services. Subject to the terms of this Agreement, Rea will provide the software platform and related services performed by Rea for Client expressly identified in this Agreement, in an Addendum, or on the Statement of Work (collectively, “Services”).
2.2 Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, Rea hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Rea shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
2.3 Documentation License. To the extent that the Services are accompanied by any Rea-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Services (“Documentation”), Rea hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license under Rea’s rights in the Documentation to use such Documentation solely to enable Customer to exercise its rights under the applicable license to or grant of access and usage rights for the Services.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer may use the Services for its internal business purposes only and will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use the Services or the Documentation; (b) use the Services to provide services to third parties (e.g., as a service bureau) or in any manner that competes with or adversely impacts the business of Rea (e.g., in connection with the development of competitive services); (c) use the Services for any benchmarking activity; (d) circumvent or disable any security or other technological features or measures of the Services or use the Services in a manner that Rea reasonably believes poses a threat to the security of Rea-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Services (except to the extent that applicable law prevents the prohibition of such activities); or (f) use or access the Services in a manner that materially impacts or burdens Rea or Rea’s servers and other computer systems, or that interferes with Rea’s ability to make available any services to any third party; or (g) use the Services in violation of Rea’s then-current published Acceptable Use Policy (as applicable), as may be updated from time to time.
2.5 Reservation of Rights. Rea reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Rea IP.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Rea may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Services if: (i) Rea reasonably determines that (A) there is a threat to or attack on any of the Rea IP; (B) Customer’s or any Authorized End User’s use of the Rea IP disrupts or poses a security risk to the Rea IP or to any other customer or vendor of Rea; (C) Customer, or any Authorized End User, is using the Rea IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) (i) Rea’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (ii) any vendor of Rea has suspended or terminated Rea’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer fails to make any timely payment of the Fees (each, a “Service Suspension”). In the event of a Service Suspension under (E)(i) that continues for a period of fifteen (15) business days or more, Customer, in its sole discretion, may elect to terminate the Agreement, in which case Rea shall refund Customer any prepaid Fees covering the remainder of the Term from the start date of the Service Suspension. Rea shall use commercially reasonable efforts to provide written notice of any material Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Rea shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Rea will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.7 Security. Rea will implement and maintain appropriate administrative, physical, and technical safeguards designed to prevent any unauthorized collection, use or disclosure of, or access to, the Services and/or Customer Data, including (i) appropriate and adequate physical security of all premises in which the Services and/or Customer Data are provided, handled, processed or stored; (ii) reasonable precautions with respect to the employment of and access given to Rea personnel, including background checks and security clearances that assign specific access privileged to individuals; and (iii) an appropriate network security program with reasonable access and data integrity controls, testing and auditing of all controls, and appropriate corrective action and incident response plans.
2.8 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Rea may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Rea and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Rea. Rea may use the Aggregated Statistics to, including without limitation, (a) improve usability and Customer’s experience; (b) automate repetitive tasks based on machine learning or AI; or (c) help Customer’s Authorized Users make more informed decisions with tips and suggestions. Customer acknowledges that Rea may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Rea may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Rea in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
2.9 Authorized Users. The total number of Authorized Users will not exceed the number set forth in the Statement of Work except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
III. Rights and Restrictions
3.1 Customer Obligations. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
3.2 Third-Party Products. To the extent that the Services includes or is accompanied by third-party software or other products that Rea provides to Customer or that is otherwise identified in the Documentation as being required to use properly such Services (“Third-Party Products”), the Third-Party Products and their use by Customer are subject to all license and other terms that accompany such Third-Party Products. Customer will abide by and comply with all such terms and, unless expressly authorized by this Agreement or such terms, will not use such Third-Party Products independently of the Services with which they were provided. Without limiting the foregoing, if Rea enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions. Notwithstanding anything to the contrary in this Agreement, the Rea Group makes no warranties and offers no indemnities with respect to any Third-Party Products, irrespective of whether such Third-Party Products are included in, or provided with, the Services.
3.3 Compliance with Laws. Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
3.4 Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Services and Documentation and will immediately notify Rea in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to the Services or Documentation through Customer.
3.5 Service Levels. Subject to the terms and conditions of this Agreement, Rea shall use commercially reasonable efforts to make the Services available in accordance with the service levels identified in the Statement of Work.
3.6 Additional Features. Customer acknowledges that not all of the features or functionality of the Services may be available at Customer’s purchase level irrespective of whether such feature or functionality is described in the Documentation, and that access to such features or functionality may require payment of additional Fees or the purchase of additional licenses.
IV. Fees and Payment
4.1 Fees and Payment Terms. Customer will pay Rea the fees and any other amounts invoiced under this Agreement as specified in the Statement of Work, including, where applicable, any early termination fees specified on the Statement of Work (collectively, “Fees”). Any amount not paid within thirty (30) days of the date the project is completed will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Rea to collect any amount that is not paid when due. Rea will increase any Fees invoiced in respect of any Term by providing notice of such increase to Customer at least thirty (30) days prior to the first day of the next Term in which the increase will take effect.
4.2 Taxes. Other than net income taxes imposed on Rea, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Rea after all such Taxes are paid are equal to the amounts to which Rea would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
V. Termination
5.1 Termination for Convenience. Rea may terminate this Agreement for convenience upon ninety (90) days prior written notice to Customer.
5.2 Termination for Material Breach. Either Party may terminate this Agreement or the Statement of Work if the other Party does not cure its material breach of this Agreement or the Statement of Work within thirty (30) days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this section will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the thirty (30) day cure period. Notwithstanding the foregoing, Rea may immediately terminate this Agreement upon notice to Customer if Rea reasonably believes that Customer has made or distributed any unauthorized copies of any of the Services, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Rea’s intellectual property rights, including rights in and to any of the Services. Without limiting any other provision of this section, if Customer fails to timely pay any fees, Rea may, without limitation to any of its other rights or remedies, suspend access to the Services under the Statement of Work until it receives all amounts due.
5.3 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) Customer will pay to Rea any Fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Customer will provide Rea with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued and that all Confidential Information in Customer’s possession or control has been returned or destroyed.
5.4 Survival. Notwithstanding anything to the contrary herein, Sections 1 (Structure), 3.2 (Third-Party Products), 7.1 (Rea IP), 7.3 (Feedback), 4 (Fees and Payment), 5.3 (Post-Termination Obligations), 5.5 (Survival), 6 (Confidentiality), 8 (Warranties and Disclaimer), 9 (Indemnification), 10 (Limitations of Liability), and 11 (General) will survive termination or expiration of this Agreement.
VI. Confidentiality
6.1 Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, 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. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Rea is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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.
VII. Intellectual Property Ownership
7.1 Rea IP. Customer acknowledges that, as between Customer and Rea, Rea owns all right, title, and interest, including all intellectual property rights, in and to the Rea IP (as defined hereafter) and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. “Rea IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Rea IP includes Aggregated Statistics and any information, data, or other content derived from Rea’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
7.2 Customer Data. Rea acknowledges that, as between Rea and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data (as defined hereafter). Customer hereby grants to Rea a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Rea to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services that is not Aggregated Statistics.
7.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Rea by mail, email, telephone, or otherwise, suggesting or recommending changes to the Rea IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Rea is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Rea on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Rea 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 Rea is not required to use any Feedback.
III. Warranties and Disclaimer
8.1 Limited Rea Warranties. Rea hereby warrants, for the benefit of Customer only, the following:
a. Rea has obtained and will maintain all the necessary licenses and/or approvals under all applicable laws and regulations, for the Services;
b. the Services are provided in compliance with all applicable laws and regulations; and
c. the Services materially conform to the Statement of Work and this Agreement.
8.2 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
8.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8 OR THE STATEMENT OF WORK OR ADDENDUM, THE REA GROUP MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. THE REA GROUP EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. THE REA GROUP DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. THE REA GROUP DOES NOT WARRANT THAT THE DOCUMENTATION OR SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS OR PROVISION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. THE REA GROUP EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE DOCUMENTATION OR THE SERVICES.
IX. Indemnification
9.1 Defense by Rea. Rea will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Rea’s provision of the Services, infringes or misappropriates any patent, copyright, or trademark or otherwise arising from Rea’s breach of this Agreement and Rea’s grossly negligent or willful misconduct. Rea’s obligation to indemnify Customer only applies if: (a) Customer gives Rea prompt written notice of the Claim; (b) Customer grants Rea full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Rea may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim subject to indemnification under this Section without Rea’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Rea will have sole control over the defense and settlement of the Claim.
9.2 Indemnification by Rea. Rea will indemnify Customer from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Rea’s consent after Rea has accepted defense of the Claim); and (c) all amounts that Rea agrees to pay to any third party to settle any Claim under Section 9.1.
9.3 Exclusions from Obligations. Rea will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of the Services in combination with other products or services not provided by Rea if such infringement or misappropriation would not have arisen but for such combination; (b) the Services are provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Services in accordance with instructions provided by Rea, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Rea where such infringement or misappropriation would not have occurred absent such modification.
9.4 Remedy. If Rea becomes aware of, or anticipates, a Claim subject to indemnification under Sections 9.1 and 9.2, then Rea may, at its option (a) modify the Services that are the subject of the Claim so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the Statement of Work on written notice to Customer and refund to Customer any pre-paid but unused Fees (which, in the case of perpetual licenses, will be calculated based on 3-year straight-line basis).
9.5 Limited Remedy. Sections 9.1, 9.2, 9.3, and 9.4 state Rea’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Services.
9.6 Defense by Customer. Customer will defend the Rea Group from any actual or threatened third-party Claim: (a) arising out of or based upon (i) Customer’s use of the Services, provision of the Customer Data, or breach of any of the provisions of this Agreement or (ii) the gross negligence or willful misconduct of Customer; or (b) that is an Excluded Claim, if: (1) Rea gives Customer prompt written notice of the Claim; (2) Rea grants Customer full and complete control over the defense and settlement of the Claim; (3) Rea provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (4) Rea complies with any settlement or court order made in connection with the Claim. The Rea Group will not defend or settle any Claim subject to indemnification under this Section 9.6 without Customer’s prior written consent. The Rea Group will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
9.7 Indemnification by Customer. Customer will indemnify the Rea Group from and pay (a) all damages, costs, and attorneys’ fees finally awarded against the Rea Group in any Claim under Section 9.6; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the REA Group in connection with the defense of a Claim under Section 9.6 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 9.6.
X. Limitations of Liability
10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE REA GROUP WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF THE REA GROUP IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL THE REA GROUP BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA STORED IN, OR IN CONNECTION WITH, THE SERVICES.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE REA GROUP’S TOTAL LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE STATEMENT OF WORK (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE STATEMENT OF WORK WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE TOTAL LIABILITY OF REA FOR ANY SPECIFIC EVENT WILL NOT EXCEED THE TOTAL AGGREGATE LIABILITY FOR REA, AS CALCULATED ABOVE, LESS ANY SUMS PAYABLE FOR PREVIOUIS EVENTS GIVING RISE TO LIABILITY ON THE PART OF SUCH PARTY THAT HAVE OCCURRED PRIOR TO THE DATE OF THE SPECIFIC EVENT.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY REA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
XI. General
11.1 Relationship. Rea will be and act as an independent contractor in the performance of this Agreement. Nothing herein contained shall constitute a partnership between or joint venture by the Parties or constitute any Party the agent of the other. No party shall hold itself out contrary to the terms of this Section 11.1 and no party shall become liable by any representation, act, or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
11.2 Entire Agreement. This Agreement (together with the Statement of Work) is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Rea that are not described in the Statement of Work and with respect to which Customer has executed a separate agreement with Rea that remains in effect. No employee, agent, or other representative of Rea has any authority to bind Rea with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
11.3 Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Rea may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
11.4 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The Parties consent to the reformation of any invalid or unenforceable provision so that it is enforceable to the maximum extent permitted by law.
11.5 Modifications. Rea reserves the right to update and change this Agreement and its terms hereto, without notice, by posting a new version on Rea’s website. Customer’s continued use of the Services following the posting of modified terms will be subject to the terms in effect at the time of Customer’s use. Please review these terms periodically for changes.
11.6 Non-solicitation. The employees and consultants of Rea are a valuable asset to Rea and are difficult to replace. Accordingly, Customer agrees that, during the Term, and for a period of two years after the termination or expiration of this Agreement, it will not solicit for employment or engagement (whether as an employee, independent contractor or consultant) any Rea Group employee or consultant. Customer is not restricted from posting, or hiring any personnel that respond to, public job advertisements or similar general solicitations. Customer agrees that if it employs any person previously employed by Rea Group in violation of the provisions of this Section 11.6, then Rea will be entitled to liquidated damages equal to the greater of (i) 150,000 or (ii) an amount equal to the solicited employee’s salary for a period of one year.
11.7 Force Majeure. Any failure by any of the Parties hereto to carry out any of its obligations under this Agreement shall not be deemed to be a breach of this Agreement or a default if such failure is caused by a Force Majeure event. “Force Majeure” events include, but are not limited to, acts of God, wars, restrictions, pandemics, national emergency, strikes, fires, floods, or other casualty, riots, insurrections, accidents, delays in transportation, rules and restrictions by law or government agencies, and other causes beyond the party’s control, whether or not the cause be of a class or character similar to those heretofore enumerated.
11.8 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Ohio. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Wayne County, Ohio in connection with any action arising out of or in connection with this Agreement.
11.9 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.10 Subcontractors. Rea may utilize subcontractors or other third parties to perform its duties under this Agreement, so long as Rea remains responsible for all of its obligations under this Agreement.
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