These Terms and Conditions (“Terms”) are entered into by and between relayr, Inc. (“relayr”) and the company (“Company”) that has ordered relayr’s elevator service solution and/or related services pursuant to an order (each, an “Order”). These Terms are incorporated into all Orders and govern relayr’s provision of such services. By placing an Order, Company acknowledges these Terms form an essential part of the parties’ agreement and agrees to be bound by the provisions contained herein.
SECTION 1 – SUBSCRIPTION SERVICES. 1.1 License. Relayr grants to Company a limited, non-exclusive, non-transferable, and non-sublicensable (except as otherwise expressly set forth in these Terms) license to access and use the Subscription Services solely: (1) in accordance with these Terms; (2) subject to Company’s timely payment of all Fees; (3) during the applicable Subscription Period; and (4) within the Territory identified in the Order. As further described in these Terms, Company may make certain portions of the Subscription Services available to users associated with its Customers. 1.2 Description. The “Subscription Services” include (1) access for Users to Interfaces; (2) access to relayr’s Materials, Deliverables (if any); and (3) use of any and all software embedded in any of the foregoing (“Software”), all as more particularly defined and described in the Order and these Terms. The Subscription Services together with any relayr support obligations set forth in the Order are referred to as the “Services”. 1.3 Changes. Relayr may make changes to the Subscription Services from time to time, including to reflect changes in technology, industry practices, and patterns of use; however, relayr’s changes to the Subscription Services will not result in a material reduction in the level of Subscription Services provided to Company for the duration of the Subscription Period. The Subscription Services may be temporarily interrupted due to the implementation of such changes or for general maintenance or upgrades.
SECTION 2 – INTERFACES; USERS. 2.1 Interfaces. As part of the Subscription Services relayr will provide access to the interfaces (“Interfaces”) described in the Order. All Interfaces are web-based. In the event relayr makes an Interface available via mobile application (a “Mobile App”), availability is dependent on (a) the User having an appropriate smart phone or tablet; and (b) third-party websites from which the Mobile App may be downloaded (and agreement to such websites’ terms and conditions). 2.2 Users. “Users” include Company Users and Customer Users. “Company Users” are employees and contractors of Company, such as account managers, dispatchers, and technicians. “Customer Users” are employees of Customer of Company. Company may permit (1) Company Users to access and use the Interfaces that are described in the Order as being for Company Users (if any); and (2) Customer Users to access and use the Interfaces that are described in the Order as being for Customer Users (if any), all provided that such access and use is in accordance with these Terms. Company remains responsible and liable to relayr for all acts or omissions of Users, and any breach of these Terms by a User will be considered a breach by Company. The maximum number of Users permitted to access and use each Interface is set forth in the Order; that number of Users applies to the entire Order and not to each subscription. 2.3 User Access. Before Users are able to access and use any Interface, they will need to register, provide Account Data, and agree to (via click-through or otherwise) relayr’s End User License Agreement (“EULA”), available at <relayr.io/skyler-elevate-end-user-license-agreement>. Users may also need to input certain information via the Interfaces, including information about the installed location and elevator. Company and its Users are responsible for obtaining Internet access and software and hardware that meet relayr’s general security and minimum system and performance requirements necessary for such access and use. 2.4 Passwords. Users shall not share their passwords or other access credentials with others; Company must immediately notify relayr in writing if Company becomes aware that User account names or passwords are lost, stolen, or being used in an unauthorized manner.
SECTION 3 – ALERTS. The Interfaces may display alerts (“Alerts”) if the Hardware senses conditions outside of pre-set operating parameters. In no event is relayr responsible for taking any action based on an Alert, including any preventative or remediation actions. Users will see Alerts only if they log into the applicable Interface; Alerts are not sent via text message, push notification, phone call, or any other means. THE SUBSCRIPTION SERVICES ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM, NOR SHOULD THEY BE USED FOR ANY LIFE SAFETY OR CRITICAL PURPOSES OR AS A SUBSTITUTE FOR REGULAR OR REQUIRED MAINTENANCE OR INSPECTIONS. ANY ALERTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NO GUARANTEE IS MADE THAT THE SUBSCRIPTION SERVICE WILL IDENTIFY, ALERT, OR WARN AGAINST POTENTIAL ISSUES OR HAZARDS, AND THE SUBSCRIPTION SERVICE WILL NOT, AND CANNOT, PREVENT SUCH ISSUES OR HAZARDS. Under no circumstances will relayr dispatch services to a location based on an Alert. The Subscription Services are not designed to shut off or control elevators in any way
SECTION 4 – SUPPORT; SOFTWARE. 4.1 Generally. Relayr will provide Company with a point of contact for any support related issues pertaining to the Services or Hardware. For Hardware-related issues, relayr will reasonably assist Company in contacting the Hardware Provider and informing the Hardware Provider of the issue; otherwise relayr has no responsibilities for the Hardware, including for correcting Hardware-related issues. 4.2 Technical Support. Relayr will provide Eligible Personnel with basic technical support during normal business hours (Monday to Friday, 9:00am to 5:30pm Eastern Time), excluding holidays. Relayr will provide such technical support to up to three (3) Company personnel (“Eligible Personnel”) identified by Company in writing to relayr. To receive support, Eligible Personnel must provide responses to relayr’s reasonable requests for information and otherwise cooperate with relayr. Company is responsible for providing support to its Customer and Customer Users. 4.3 Other. Relayr agrees to use reasonable commercial efforts to perform the support obligations specified in the Order. Company shall be responsible for providing relayr with any technical information, designs, documentation, or other cooperation, personnel, contributions or items reasonably required by relayr to provide the support and relayr shall not be responsible for delays related to Company’s failure to do so. 4.4 Materials. Relayr may from time to time provide Company or Users with user, installation, instructional, and operating manuals and guides, training videos, and/or other similar materials in connection with the Subscription Services (collectively, “Materials”).
SECTION 5 – ACCEPTABLE USE; CUSTOMERS. 5.1 Acceptable Use. Except as otherwise expressly set forth in these Terms, Company shall not and shall not permit or authorize others (including employees, Users, third parties) to: (1) sell, rent, lease, license, make available, permit access to, or distribute the Subscription Services to any third party; (2) use the Subscription Services in a timeshare or service bureau arrangement; (3) copy, modify, disassemble, reverse engineer, decompile, create derivative works of, or attempt to derive the object or source code of, the Subscription Services or Materials; (4) use the Subscription Services or Materials in conjunction with or to develop any competing service or product; (5) circumvent, disable, or otherwise interfere with security-related features of the Subscription Services; (6) interfere with the Subscription Services or take any action that imposes or may impose a disproportionately large load on relayr’s infrastructure; (7) remove, deface, obscure, or alter any copyright notices, trademarks, or other proprietary rights (including logos) affixed to or provided as part of the Subscription Services or Materials; (8) upload or transmit any Data to or via the Subscription Services unless all necessary rights and consents, including from data subjects, have been obtained; (9) use the Subscription Services to send communications or messages that are unlawful, inappropriate, or in violation of a third party’s intellectual property rights; and/or (10) otherwise use the Subscription Services in an unlawful manner, in a manner not in compliance with any Materials, or in breach of these Terms. 5.2 Customers. Any separate written contract that Company has with a Customer (a “Customer Contract”) shall not make any commitment, representation, or warranty on behalf of relayr or in any way limit or attempt to limit any of relayr’s rights or any restrictions set forth in these Terms or the EULA. Company must immediately notify relayr of any known or suspected breach of the EULA or other unauthorized use of the Subscription Service and to assist relayr in the enforcement of the EULA against any Customer.
SECTION 7 – FEES. 7.1 Payment. Relayr will invoice and Company will pay the fees as set forth in the Order. Fees for the Service are based on the quantities set forth in the Order, regardless of actual usage, and are due and payable even if Company fails to install Hardware or use or access the Services. All amounts due are quoted and shall be paid in USD. If Company’s or a Customer’s actual usage of any aspect of the Services exceeds the entitlement specified in the Order, then Company may be invoiced for the overage in accordance with relayr’s then current terms and rates. Company will reimburse relayr for all reasonable and necessary out-of-pocket travel, lodging and incidental expenses incurred in the provision of Services. Subscriptions commence and run as set forth in the Order, whether or not corresponding Hardware is received or installed. 7.2 Late Payments. Any Fees or amounts not paid by the due date shall bear interest at the rate of 1.5% per month, or the highest rate allowed by law, whichever is less, from the date due until paid. If Company fails to pay any overdue amount within thirty (30) days of the date of notice from relayr, relayr may suspend access to and use of the Subscription Services until any overdue amount is paid in full. 7.3 Taxes. Fees are exclusive of all excise, sales, use, transfer and other taxes (“Transactional Taxes”) and duties imposed by any federal, state, municipal or other governmental authority (“Tax Jurisdictions”), all of which taxes must be paid by the Company (other than with respect to taxes associated with relayr’s net income). Company is responsible for obtaining and providing to relayr any certificate of exemption or similar document required to exempt any service from sales, use or similar tax liability together with the signed Order Form. Company understands that relayr may have Transactional Tax collection and remittance obligations in Tax Jurisdictions where it may conduct business, have employees or agents, perform services, or otherwise have a nexus (“Tax Obligations”). In circumstances where relayr has no Tax Obligations, Company will self-assess and timely remit Transactional Taxes associated with the Order. If any Transactional Taxes under the Order are not timely paid by Company, Company will reimburse relayr for such taxes and any related interest, penalties, etc. upon any Tax Jurisdiction audit.
SECTION 8 – INTELLECTUAL PROPERTY. All right, title, and interest in and to (1) the Services (including for the avoidance of doubt, Software, Deliverables, Materials, Interfaces, and any Mobile App(s)); (2) any intellectual property in the foregoing, as well as any intellectual property, ideas, know-how, or techniques developed, conceived, or reduced to practice by relayr (including Software developments, packages, or combinations; analyses; marketing materials; alerting or notification methodologies; features; and installation methods); (3) any marketing materials provided by relayr; and (4) any modifications, enhancements, and improvements to any of the foregoing, are and at all times shall remain the sole and exclusive property of relayr and its licensors. Neither these Terms nor any Order or Customer Contract conveys any rights of ownership, and no rights (implied or otherwise) are granted other than as expressly set forth in these Terms. Nothing in any Order or these Terms shall be construed to restrict relayr’s rights in its intellectual property and to distribute its intellectual property, including Services, to other commercial and non-commercial entities.
SECTION 9 – TERMINATION; SUSPENSION. 9.1 Company. Subject to its right to non-renew a Subscription Period as set forth in these Terms, Company may not cancel an Order or any Subscription Period early for convenience. Any prepaid Fees are non-refundable. Company may terminate an Order or Subscription Period early for cause only if relayr materially breaches these Terms and fails to correct such breach within thirty (30) days after receiving written notice from Company describing the breach. 9.2 Relayr. Relayr may terminate an Order (or any portion thereof) at any time upon written notice to Company, or in its sole discretion suspend Company’s, Customers’ or Users’ access to the Services without liability, if any such person or entity materially breaches any provision of the Order or these Terms or if relayr reasonably believes that continuing to provide the Services could result in business, reputational, or legal liability for Relayr Entities or otherwise harm Relayr Entities or their end users. Relayr also may suspend such Services upon the occurrence of a Force Majeure Event. Upon termination, Company must immediately cease (and ensure that Customers and Users cease) use of the Services. Relayr will use reasonable efforts to provide Company with advance notice of any suspension, provided that relayr will not be liable for not doing so, particularly in situations where relayr reasonably believes that delaying any suspension could harm relayr’s or Company’s interests, the Services, or other customers. 9.3 Survival. Sections 5, 6, and 7 through 12 of these Terms will survive expiration or termination of the Order.
SECTION 10 – CONFIDENTIALITY. 10.1 Confidential Information. “Confidential Information” means all written or oral information, disclosed by either party to the other, related to either party or a third party, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably be known to be confidential. Without limiting the foregoing, all Materials will be deemed to be the Confidential Information of relayr. Each party retains title to its Confidential Information. Confidential Information does not include any information that (1) was in the public domain at the time it was delivered or which thereafter passes into the public domain except by act of the receiving party or, in the case of Company as receiving party, any act of a Customer or User; (2) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (3) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (4) is independently developed by the receiving party; or (5) is approved for release or disclosure in writing by the disclosing party without restriction. 10.2 Use. The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may (1) use the disclosing party’s Confidential Information to fulfill the purposes of the Order and these Terms; and (2) disclose Confidential Information to its (and its affiliates’) employees, advisors, consultants, and agents on a need-to-know basis, provided that such party is bound by obligations of confidentiality substantially similar to those contained in these Terms. For the avoidance of doubt, relayr’s use of Data in accordance with these Terms will be permitted despite, and not considered a breach of, the confidentiality provisions herein. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, to the extent permissible, first have given written notice to the other party to allow such other party to seek a protective order; or (b) to establish a party’s rights under an Order or these Terms.
SECTION 11 – WARRANTIES; DISCLAIMERS; LIABILITY. 11.1 Warranties. By signing an Order, each party warrants that it has full power, and has obtained the required authority and consents, to enter into and perform its obligations under the Order and these Terms. Relayr warrants that the Services will be provided in accordance with applicable laws and in a competent and professional manner by trained and qualified persons and in a workmanlike manner consistent with then-current industry standards. COMPANY’S SOLE REMEDY AND RELAYR’S ENTIRE LIABILITY FOR A BREACH OF THE FOREGOING WARRANTIES SHALL BE REPERFORMANCE BY RELAYR OF THE APPLICABLE PORTION OF THE SERVICES. 11.2 Limitations. Relayr aims for the Services to be highly reliable and available. However, the Services, including data transmission, monitoring, and alerting, and access thereto may be interrupted or malfunction including due to factors outside of relayr’s control, such as Hardware-related issues, improper Hardware installation; hindrance or obstruction of Hardware; human error or negligence; insufficient coverage; power outages; termination or interruption of internet, wi-fi or cellular service; communications networks; environmental conditions and interference, among others. The Services rely on or inter-operate with third-party products and services (including the installation of Hardware); these third-party products and services may not operate in a 100% reliable manner and are beyond relayr’s control, but their operation may directly impact the use and reliability of the Services. Relayr cannot and does not guarantee that the Services will be 100% available or that Alerts will be sent within any given time or at all. Company acknowledges these limitations and agrees that relayr is not responsible or liable for any damages or losses related to the failure or delay of the Services, including any decision by Company as to whether, when, or what extent to service a particular elevator. 11.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS AND RELAYR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. RELAYR MAKES NO WARRANTY OR GUARANTEE THAT THE SERVICES OR HARDWARE WILL MEET COMPANY’S, CUSTOMERS’ OR USERS’ REQUIREMENTS OR BE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, AND/OR ACCURATE BASIS. NO ADVICE OR INFORMATION PROVIDED WILL CREATE ANY ADDITIONAL WARRANTY, NOR SHALL IT BE CONSIDERED OR USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INSPECTION. NOTWITHSTANDING ANYTHING ELSE IN AN ORDER OR THESE TERMS TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW RELAYR SHALL NOT BE LIABLE FOR THE HARDWARE, ANY FAILURE OF THE SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ANY LOSS OF PROFITS OR REVENUE; LOSS OF USE; LOSS OF OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS OR SERVICES; COST OF CAPITAL; GOVERNMENTAL AND REGULATORY SANCTIONS; OR CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OR ANY ORDER, IN NO EVENT WILL RELAYR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, AN ORDER, AND THESE TERMS EXCEED THE AMOUNT ACTUALLY PAID BY COMPANY PURSUANT TO AN ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. 11.4 Liability. The company is fully responsible for all liabilities and expenses of any type that may arise in connection with the company’s access and use of the Services, the ordering, installation, and use of Hardware, and its Customer Contracts. Company shall indemnify, hold harmless, and (at relayr’s option) defend relayr and its affiliates and their officers, directors, and employees (collectively, “Relayr Entities”) from and against all damages, costs, fees, and expenses (including reasonable attorney’s fees) relating to any claim, action, suit or other proceeding (collectively “Claims”) related to: (1) Company’s and the Users’ use of the Services and/or breach of these Terms and/or the EULA; (2) any injuries to persons or any physical damage to property that occurs as a result of any Hardware installation or servicing or otherwise while a Company employee, contractor, or representative is on-site at any location for any reason related to the Subscription Services; (3) any Customer or Customer Contract; and (4) any other acts or omissions in connection with the use, marketing, or resale of the Services or Hardware pursuant to these Terms.
SECTION 12 – MISCELLANEOUS. 12.1 Feedback. Relayr shall own any and all suggestions, ideas, enhancement requests, feedback, and any related intellectual property rights thereof provided by Company regarding the Services (“Feedback”). By providing Feedback, Company represents and warrants it has the right to provide such Feedback in accordance with these Terms to relayr. 12.2 Construction. The headings of the Sections in these Terms are provided for convenience only and will not affect their construction or interpretation. All references to “Sections” refer to the corresponding Sections in these Terms. Company represents that it has read and understood these Terms, and acknowledges and agrees that any construction of these Terms shall not be made against the drafter. Unless expressly stated otherwise, in these Terms and any Order, “including” (and with correlative meaning “include”) means “including without limitation”, and “or” is used in the inclusive sense of “and/or”. 12.3 Waiver. No failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise of that right. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver. 12.4 Independent Contractors. The parties are acting solely as independent contractors, and neither party is an agent or partner of the other. 12.5 Force Majeure. Relayr shall not be liable for any failure to perform due to Force Majeure Events provided that relayr takes reasonable steps in its control to minimize the extent and duration of any such Force Majeure Event. “Force Majeure Events” are events outside the reasonable control of relayr, including acts of God; earthquakes; wars; epidemics, pandemics; terrorism; communication failures; power failures; strikes or shortages of materials; adequate cellular coverage in an installed location; any computer, communications, internet service, cloud, or hosting facility failures or delays involving Hardware, software, power or other systems; and denial of service attacks. 12.6 Priority. To the extent of any conflict between the provisions of these Terms, any Materials, or any Order, these Terms shall prevail, unless specifically amended in such other document. 12.7 Promotional Activities. Neither party shall reproduce or use the names, logos, service marks, or trademarks of the other party in advertising, marketing material, or otherwise without the express written permission of such other party; provided that relayr may use ompany’s name and logo (1) as necessary to provide any implementation services included in an Order, and (2) on its website and in its promotional materials to state that Company is a customer of relayr. 12.8 No Third Party Beneficiaries. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors, and permitted assigns, any legal or equitable right whatsoever to enforce any provision of these Terms. 12.9 Arbitration; Specific Performance. Any dispute or controversy arising out of, relating to, or concerning the Services or these Terms shall be resolved by arbitration, in English, in lieu of any court or jury trial, to be held in Boston, Massachusetts, in accordance with the rules for the resolution of commercial disputes of the American Arbitration Association then in effect. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Notwithstanding the foregoing, because a breach or threatened breach of Sections 5.1, 8 and/or 10 of these Terms may cause irreparable harm to the non-breaching party which may not be measurable in monetary terms, such Sections may be specifically enforced by any court of competent jurisdiction and each party consents to the entry of such restraining orders and injunctions as may be necessary to prevent or stop a breach of such Sections and to carry out their terms. This remedy shall not be exclusive and either party may have such other and further relief as may be permitted by law. 12.10 Notices. Any notice that is required to be given by the Order or Terms shall be in writing, and shall be sent to the other Party at the address set forth on the Order (which may be changed by a Party by providing notice thereof to the other Party), and shall be deemed to have been delivered and received on (1) the date personally delivered; (2) five (5) business days after the date it is sent by domestic registered or certified mail, with postage and charges prepaid; or (3) on the first business day following dispatch if sent by a recognized next-day courier or delivery service. 12.11 Miscellaneous. Neither party may assign an Order or these Terms without the written consent of the other party provided that relayr may assign an Order and Terms to an affiliate upon notice to the company. These Terms together with the Order(s) and the EULA constitute the entire agreement regarding the Services between the parties and supersedes all prior understandings or agreements, whether oral or written, concerning the subject matter hereof. If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain in full force and effect. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflict of laws provisions. An Order may be executed in one or more counterparts, each of which will be deemed to be an original copy of such Order and both of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of and signatures to an Order by electronic or .pdf transmission shall constitute effective execution and delivery. Any capitalized, but undefined terms used herein shall have the meaning ascribed in the applicable Order(s). In the event of a conflict between these Terms and an Order, the Order shall control, but only to the extent necessary to resolve said conflict