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 Term; 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, which include relayr’s standard analytic and notification services; (2) access to relayr’s Materials, Deliverables (if any), and Support Services; (3) use of any and all software embedded in any of the foregoing (“Software”); and (4) usage of Service Hardware (as defined in Section 2.1), if applicable, all as more particularly defined and described in the Order and these Terms. The Subscription Services and the Professional Services, if any, are the “Services”.
1.3 Subscription Term. Company’s license to access and use the Subscription Services is for the initial subscription term (“Initial Subscription Term”) set forth in the Order. Except as otherwise expressly set forth in an Order, the Initial Subscription Term will automatically renew for subsequent one (1) year renewal subscription terms (each a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”) unless (1) a party provides the other party with written notice of non-renewal at least ninety (90) days before the expiration of then then-current term; or (2) the Order has otherwise terminated in accordance with these Terms.
1.4 Changes. Relayr may make changes to the Subscription Services from time to time 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 Term. The Subscription Services may be temporarily interrupted due to the implementation of such changes or for general maintenance or upgrades.
2.1 Type; Quantity. The type and quantity of hardware that relayr will provide (“Hardware”) is set forth in the Order. Relayr will ship all Hardware directly to Company. The Order will indicate whether Company is purchasing Hardware (“Purchased Hardware”) or using relayr-owned Hardware as part of the Subscription Service (“Service Hardware”).
2.2 Installations. Company is responsible at its sole cost and expense for installing and eventually removing all Hardware, and may install the Hardware only on elevators that it maintains or services pursuant to a relationship with the owner of such elevator (an “Owner”) or a facility/asset manager or contractor (“Facility Manager”). The Owner or Facility Manager with whom Company has a relationship to service elevators is the “Customer”. Company shall install the Hardware solely (1) in accordance with relayr’s installation guides and instructions and all applicable laws, regulations, codes, or ordinances; (2) in connection with the other Subscription Services provided by relayr to Company; and (3) with the express consent of the Customer. Installation does not require any invasive methods (e.g., drilling, cutting, etc.) nor any modifications to the elevator system itself; if Company elects to use any such invasive methods or make any such modifications, Company is responsible for any resulting damage and required repairs. The Hardware requires power from the electricity grid through a standard power outlet/socket to operate, availability of which is to be provided for and paid by the Company or Customer. The adapter and wiring necessary to connect the hardware to the power outlet/socket are provided by relayr. Please note that the power adapter and wiring is product-specific, and that any alteration of which may cause product-certifications or warranties to be no longer valid.
2.3 Title. Once Purchased Hardware has been deposited with a carrier for shipment to Company (“Shipment”), title to, risk of loss for, and ownership of such Purchased Hardware will automatically transfer to the Company without any further action of the Parties. For Service Hardware, title to and ownership of all such Service Hardware will at all times remain with relayr and will not transfer to Company, nor will it transfer to any Owners, Facility Managers, Users, or any third party (collectively, “Third Parties”). Neither Company nor any Third Party shall have any right or interest in or to the Hardware except for Company’s limited right of usage and access expressly provided in these Terms. Possession of the Hardware is at all times subject and subordinate to the rights of relayr.
2.4 Hardware Restrictions. Hardware will not work or function except in connection with the Subscription Services. Company shall not, and shall not permit or authorize Third Parties to, alter or destroy in any way any Hardware, or any label thereon, or affix or install any accessory, addition, upgrade, sensor, equipment, or device on or to the Hardware. Company will keep the Hardware in good condition, subject to normal wear and tear and will be liable for the reasonable costs of repair or replacement of Hardware if damaged or lost due to Non-Covered Events (defined below).
2.5 Relayr Responsibilities. In the event Company notifies relayr in writing of any mechanical or service failure of Hardware under conditions of normal use and service (1) during the Subscription Term for any Service Hardware, or (2) during the twelve (12) month period following the date of Shipment for any Purchased Hardware, relayr will repair or replace such Hardware at no cost to Company, unless such failure arises in whole or in part due to accident, abuse, misuse, theft, neglect, negligence, intentional acts, improper installation by Company or any Third Party on Company’s behalf, abnormal environmental conditions, use contrary to or failure to follow any Materials, improper storage or handling of the Hardware occurring after delivery, modifications made by or on behalf of Company or any Third Party, unauthorized service work, the use of unauthorized parts or supplies not provided by relayr and/or other causes within the reasonable control of Company or Third Parties (collectively, “Non-Covered Events”). If such mechanical or service failure cannot be resolved within thirty (30) days after Company has notified relayr or the repair or replacement is not feasible for any reason, relayr may, in its sole and exclusive discretion, terminate the applicable Order (or the applicable portion thereof) upon written notice to the Company, in which case relayr will refund to Company any pre-paid and unused Fees with respect to the applicable Hardware that relate to the period after the date of notice of such failure. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, COMPANY’S SOLE REMEDY, AND RELAYR’S ENTIRE LIABILITY, FOR ANY MECHANICAL OR SERVICE FAILURE WITH RESPECT TO THE HARDWARE ARE THE REMEDIES OF REPLACEMENT AND REFUND SET FORTH IN THIS SECTION 2.5. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 2.5, THE HARDWARE IS PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS. If Hardware is damaged or destroyed in whole or in part by Company or any Third Parties or due to a Non-Covered Event, relayr has no responsibility to repair or replace such Hardware and has no obligation to return any pre-paid Fees. To optimize the Subscription Services, occasionally the Company may be required to upgrade or change the Hardware; any such upgrade or change may temporarily interrupt the Subscription Services. Costs and expenses associated with the installation efforts for repaired, replaced, or upgraded Hardware shall be borne by the Company.
2.6 Service Optimization. To optimize the Subscription Services, occasionally relayr may (1) require Company to upgrade or change Service Hardware; or (2) remotely access Hardware (including Purchased Hardware) to update or change its operating system and software, gather data or information, troubleshoot, power-cycle, or control access. Any such actions may temporarily interrupt the Subscription Services. Costs and expenses associated with the installation efforts for any repaired, replaced, or upgraded Hardware shall be borne by the Company.
3.1 Interfaces. As part of the Subscription Services relayr will provide Company with access to Interfaces. “Interfaces” include (1) a desktop interface designed to allow Company User dispatchers to, among other things, monitor deployed Hardware, receive Alerts, and dispatch technicians (the “Dispatcher Interface”); (2) a mobile interface designed to, among other things, allow Company User technicians to receive dispatches and Alerts, review elevator information, and troubleshoot and document issues (the “Technician Interface”); and (3) a desktop interface designed to allow Customer Users to, among other things, monitor a fleet of elevators and receive Alerts (the “Customer Interface”). All Interfaces are web-based (i.e., are not provided via mobile application). In the event relayr makes any Interface available via mobile application (a “Mobile App”), the availability of any such Mobile App is dependent on (a) the User having an appropriate smart phone or tablet; and (b) third-party websites from which a Mobile App may be downloaded. Each such website may have its own terms and conditions that must be agreed to before downloading a Mobile App, and the right to use a Mobile App is conditioned upon the User’s compliance with such terms and conditions.
3.2 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 an Owner or Facility Manager. Company may permit (1) Company Users to access and use the Dispatcher Interface and Technician Interface (as applicable); and (2) Customer Users to access and use the Customer Interface, all provided that such access and use is in accordance with these Terms. Company shall remain responsible and liable to relayr for any act or omission of a User that would constitute a breach of these Terms as if such act or omission were by Company. The maximum number of Users that Company may permit to access and use each Interface is set forth in the Order; for the avoidance of doubt, the maximum number of Users applies to the entire Order and not to each license to the Subscription Service.
3.3 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) the Franz End User License Agreement (“EULA”).. To the extent of any conflict between the EULA that Company Users are required to agree to and these Terms, these Terms shall control. Users may also need to input certain information via the Interfaces, including information about the installed location (e.g., where Hardware was installed, how many floors the elevator services, etc.). In order to use and access the Services (including Interfaces), Company and its Users are responsible, at their own cost, to obtain Internet access and any and all software and hardware that meet relayr’s general security and minimum system and performance requirements necessary for such access and use.
3.4 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.
The Interfaces may display alerts (“Alerts”) if the Hardware senses conditions outside of pre-set operating parameters, which may relate to elevator cabin offset, acceleration, temperature, and other factors. 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 HARDWARE AND 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. THE HARDWARE IS NOT EQUIPPED WITH AN AUDITORY OR VISUAL ALERT TO NOTIFY ANYONE IF ANY CONDITIONS OR HAZARDS ARE DETECTED. ANY ALERTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR ANY THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM. NO GUARANTEE IS MADE THAT THE SUBSCRIPTION SERVICE WILL IDENTIFY, ALERT, OR WARN AGAINST ALL 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 Service and Hardware will not shut off or control elevators in any way.
5.1 Installation Support. Relayr will provide Company with basic installation support as set forth in the Order.
5.2 Technical Support. Unless Company has ordered enterprise technical support services in an Order (in which case relayr will provide Eligible Personnel with technical support on a 24/7 basis, excluding holidays), 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. Company is responsible for providing support to its Customer and Customer Users.
5.3 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 or Hardware (collectively, “Materials”).
5.4 Cooperation. To receive any support, Company Users must reasonably cooperate with relayr and its personnel, including providing responses to relayr’s reasonable requests for information.
6.1 Acceptable Use. Except as otherwise expressly set forth in these Terms, Company shall not and shall not permit or authorize others (including 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 Hardware, Subscription Services, or Materials; (4) use the Hardware, 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 Hardware or 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 Hardware, 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 connectivity and communication features embedded in the Hardware or 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.
6.2 Customers. Company may provide its Customers and Customer Users with access to the Subscription Services as contemplated by these Terms. It is Company’s responsibility to ensure that each Customer and Customer User agrees to such EULA. This may require Company to notify each Customer that it must register via the Customer Interface and agree to the EULA, or to include an agreement to the EULA in any separate written contract that Company has with Customer (a “Customer Contract”). 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 is fully responsible for the content and terms and conditions of its Customer Contract, and for collecting any fees it charges its Customer, and shall indemnify, hold harmless, and (at relayr’s option) defend Relayr Entities for any and all Claims relating in any way to a Customer Contract or Customer’s failure to acknowledge the EULA. Company must immediately notify relayr of any known or suspected breach of the EULA or other unauthorized use of the Subscription Service or Hardware and to assist relayr in the enforcement of the EULA against any Customer.
7.1 Generally. To provide the Services, relayr will have access to (1) data collected by or from the Hardware (“Sensor Data”); (2) account data collected as part of registration processes, in connection with relayr’s support services, or otherwise (“Account Data”); and/or (3) metadata collected by the Hardware, Interfaces, or otherwise that may, for example, identify behaviors or provide context or additional information about Company, Third Parties, Sensor Data, and/or Account Data (“Metadata”). Account Data and Metadata may contain personally identifiable information (“PII”) such as name, address, email address, and/or phone number. “Data” includes Sensor Data, Account Data, and Metadata. Data will be considered “Anonymized” if it has had all personally identifying information about Company or a Third Party removed such that any recipient thereof is incapable of identifying such Company or Third Party.
7.3 Relayr Use of Data. Relayr may use Data in any form in connection with the Services, or as otherwise required by applicable law (e.g., to respond to legal process). Relayr also may share Data with third party service providers who need to access and use such Data in connection with the provision of Services, or as otherwise required by applicable law. In addition, Company grants relayr a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licenseable, and transferable license to use, store, or otherwise process the Data to perform analytics and derive, compile and/or otherwise create aggregated or Anonymized data from such Data (collectively “Derived Data”). All right, title, and interest in and to Derived Data will be owned by relayr. For the avoidance of doubt and without limitation of the foregoing, relayr may make Derived Data available to third parties. Company represents and warrants that it has obtained all rights, licenses, consents, permissions, and authorizations necessary to grant the rights to relayr granted herein. Company will not permit the Services to collect or transmit any data, including Data and PII, which is subject to the rights of any Third Parties without first obtaining all required consent, permissions, agreements, authorizations, and rights in writing from such Third Parties.
7.4 Security. Relayr maintains appropriate technical, administrative, physical and organizational measures to keep the Data secure and protect it against unauthorized access or disclosure.
8.1 Applicability. The terms of this Section 8 apply only to the extent that the parties agree in an Order for relayr to provide professional services related to the Subscription Services (“Professional Services”). Otherwise this Section 8 does not apply.
8.2 Scope. The details regarding any Professional Services, including the scope and any deliverables (including any integrations with Company or third party applications and/or cloud to cloud integrations, customizations, modifications, or add-ons to the Subscription Services (“Deliverables”)), timetables, Fees, and any other necessary terms, will be documented in an Order. Relayr agrees to use reasonable commercial efforts to perform the Professional Services specified in an Order.
8.3 Acceptance. Unless the Order expressly states otherwise, relayr will provide Company with written notice (which may be by email) once relayr completes a Deliverable (or any interim milestone described in an Order). Within seven (7) days thereafter for any interim milestone or thirty (30) days thereafter for a final Deliverable (as applicable, the “Notice Period”), Company shall (1) notify relayr that it accepts the milestone or Deliverable; or (2) notify relayr that it does not accept the milestone or Deliverable due to a material non-conformance with its description in the Order, in which case Company must provide a reasonably detailed explanation for such non-acceptance. Relayr will correct any material non-conformance and re-submit the milestone or Deliverable to Company, triggering another Notice Period. Acceptance of the final Deliverable means that the Deliverable has been delivered in conformance with these Terms and the Order and will satisfy all of relayr’s obligations for such Deliverable. If Company fails to respond to relayr’s notice within the Notice Period or begins live operation (production use) of the milestone or Deliverable, then the milestone or Deliverable shall be deemed accepted by Company.
8.4 Company Responsibilities. Company shall be responsible for providing relayr with any technical information, designs, documentation, or other items reasonably required by relayr to perform the Professional Services and relayr shall not be responsible for any delays or omissions in its performance of the Professional Services caused by Company’s failure to do so. Company shall ensure that competent personnel are available during normal working hours to provide information and other support to relayr to facilitate the provision of Professional Services. Company shall designate a primary contact person in connection with Professional Services and promptly notify relayr of any changes thereto.
9.1 Fees. Unless the Order expressly states otherwise, relayr will invoice the fees for the Services and any Purchased Hardware (“Fees”) as follows: (1) for Subscription Services, annually in advance; (2) for Professional Services, monthly on a time and material basis; and (3) for Purchased Hardware, upon execution of the Order. Any fees for standard implementation services will be invoiced in accordance with the Order. The Fees for the Subscription 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 Subscription 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 Subscription 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. Fees are exclusive of applicable shipping and handling charges, which are the responsibility of Company. Relayr will include applicable shipping and handling charges (based on quantity of Hardware ordered) in its invoice(s).
9.2 Expenses. If relayr performs Professional Services, Company shall reimburse relayr for all reasonable and necessary out-of-pocket travel, lodging and incidental expenses incurred in the provision of such Professional Services if prior written approval thereof is obtained from Company.
9.3 Taxes. The 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. Company understands and agrees 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 an Order. If any Transactional Taxes under an 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.
9.4 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.
9.5 Changes. Fees for the Subscription Services are locked for the Initial Subscription Term. Relayr may increase the Fees for any Renewal Subscription Term no more than five percent (5%) if relayr provides written notice of such increase to Company at least one hundred twenty (120) days before the expiration of then then-current term.
All right, title, and interest in and to (1) the Services (including for the avoidance of doubt, any Service Hardware, Software, Deliverables, Materials, Interfaces, and any Mobile App(s)); (2) any intellectual property in the foregoing and in any Hardware, as well as any intellectual property, ideas, know-how, or techniques developed, conceived, or reduced to practice by relayr (including Hardware and 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) in the Services 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 and Hardware, to other commercial and non-commercial entities.
11.1 Company. Subject to its right to non-renew a Subscription Term as set forth in these Terms, Company may not cancel an Order or any Subscription Term early for convenience. Any prepaid Fees are non-refundable. Company may terminate an Order or Subscription Term 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.
11.2 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 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. Relayr will have no liability for any such termination or suspension. Upon termination, Company must immediately cease (and ensure that Customers and Users cease) use of the Services. Sections 6, 7, and 9 through 13 of these Terms will survive any termination. 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.
12.1 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.
12.2 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.
13.1 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 all applicable laws and that all Professional Services will be provided 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.
13.2 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 due to factors outside of relayr’s control, including 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; 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.
13.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES AND HARDWARE 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, WILL PROVIDE AN ALERT FOR ALL POTENTIAL ISSUES OR HAZARDS, OR BE ON AN UNINTERUPTED, 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 TO COMPANY OR ANY THIRD PARTY FOR ANY FAILURE OF THE SERVICES OR HARDWARE, INCLUDING FAILURES TO DETECT ANY CONDITIONS OR TO PROVIDE AN ALERT 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, HARDWARE, 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.
13.4 Liability. Company is fully responsible for all liabilities and expenses of any type that may arise in connection with Company’s licenses to access and use the Subscription Services and its installation, use, and removal of Hardware. 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”) to the extent arising: (1) from Company’s and the Users’ use of the Services and/or breach of these Terms and/or the EULA; and (2) from 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; and (3) any other acts or omissions in connection with the marketing or resale of the Services or Hardware pursuant to these Terms.
14.1 Feedback. Relayr shall own and be entitled to use and commercialize, with no accounting to Company, any and all suggestions, ideas, enhancement requests, feedback, and any related intellectual property rights thereof provided by Company regarding the Services or Hardware (“Feedback”). By providing Feedback, Company represents and warrants it has the right to provide such Feedback in accordance with these Terms to relayr.
14.2 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”.
14.3 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.
14.4 Independent Contractors. The parties are acting solely as independent contractors, and neither party is an agent or partner of the other.
14.5 Force Majeure. Except for any payment obligations hereunder, neither party shall be liable for any failure to perform due to Force Majeure Events provided that such party 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.
14.6 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.
14.7 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 Company’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.
14.8 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.
14.9 Arbitration; Specific Performance. Any dispute or controversy arising out of, relating to, or concerning the Services, Hardware, or any interpretation, construction, performance or breach of 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 6.1, 10 and/or 12 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.
14.10 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 Company. These Terms together with the Order(s) and the EULA constitute the entire agreement regarding the Services and Hardware 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.