Subject to your having a valid Service Subscription, and all terms and conditions of this Agreement, Relay2 will use commercially reasonable efforts to provide End User with access to the Service through the Internet. The Service is subject to modification, restriction, or suspension from time to time at Relay2’s sole discretion, for any purpose deemed appropriate by Relay2.
1.1Relay2 reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on its website, or by sending End User a notice. End User shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Service following such notification constitutes End User’s acceptance of the terms and conditions of this Agreement as modified.
1.2End User understands and agrees that it is responsible for obtaining and maintaining any communications services and equipment that may be required in connection with the Service, including without limitation Internet access and services, the Relay2 Access Point hardware (the ”Relay2 Hardware”) purchased from Service Provider, and other communications equipment purchased from Service Provider or another third party (collectively, the ”Hardware”). While the Relay2 Hardware is required to use the Service, the use of Relay2 Hardware is subject to a separate agreement between End User and Service Provider. Relay2 is not responsible for any support or warranty claims for the Hardware, Software (defined below), or Service, and any questions regarding support or warranties for the Hardware, Software, or Service should be directed to Service Provider.
2.1Access to the Service may require the End User to install certain software, and to use the Relay2 Hardware within the country where it was purchased. End User acknowledges that the Service may not be available for Relay 2 Hardware used outside of the country where it was purchased. End User will not, and will not permit any third party to: reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to the Service (collectively, ”Software,” which shall include any software pre-installed in the Relay2 Hardware (”Embedded Software”)); modify, translate, or create derivative works based on the Service or Software; use the Service or Software for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; or use the Service or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws) and intellectual property.
2.2End User will cooperate with Relay2 and the Service Provider in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Relay2 may reasonably request. End User will establish a username and password (or any other means required by Relay2) for verifying that only designated employees or agents of End User have access to any administrative functions of the Service. End User will be responsible for maintaining the security of End User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of End User account with or without End User’s knowledge or consent. End User’s designated employees with administrative access to the Service will be responsible for all matters relating to this Agreement (”Primary Contacts”). End User may change the individuals designated as Primary Contacts at any time by adding or deleting designated user accounts from the Service.
3.1Each party (the ”Receiving Party”) understands that the other party (the ”Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as ”Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Relay2 may collect data with respect to and report on aggregate measures of the Service’s performance and other measures to enhance the performance of the Service.
3.2End User acknowledges that Relay2 does not wish to receive any Proprietary Information from End User that is not necessary for Relay2 to perform its obligations under this Agreement. It is the End User’s responsibility to make sure no Proprietary Information is passed to Relay2.
3.3Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4.1Except as expressly set forth herein, Relay2 alone (and its licensors and suppliers, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by End User or any other party relating to the Service or the Software, and which are hereby assigned to Relay2. End User will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
4.2End User is hereby granted a limited, non-exclusive, nontransferable, non-sublicensable, revocable right to use the Software, in the form it is provided to End User, for its internal purposes only solely for the term of the Agreement (except as otherwise described with respect to Embedded Software in Section 6). Notwithstanding the foregoing, certain third-party components of the Software are subject to and governed by licenses for such third party components (the ”Third Party Licenses”). A list of third party licenses is available via End User’s online account or upon request. This Agreement is not a sale and does not convey to End User any rights of ownership in or related to the Service or Software, or any intellectual property rights. Relay2 (and its licensors and suppliers) reserve all rights not expressly granted hereunder. All Software is licensed, not sold (including any Embedded Software, notwithstanding any language regarding ”ownership” or ”sale” of the Relay2 Hardware in which such Embedded Software is embedded).
5.1Payment for the Service Subscription will be made to the Service Provider, in accordance with the agreement End User enters into with Service Provider in connection with this Agreement. For questions regarding fees and payment for the Service Subscription, or any Relay2 Hardware, please contact your Service Provider. No payments are due to Relay2 pursuant to this Agreement, but End User understands and agrees that access to the Service is conditioned on timely payment of Service fees, and if Service Provider informs Relay2 that End User is not current on all payments, Relay2 may suspend the Service Subscription, and such non-payment is considered a breach of this Agreement.
5.2As between the parties, End User is responsible for withholding, filing, paying and reporting all taxes, duties, and other governmental assessments associated with its activity in connection with the Service.
6.1This Agreement shall become effective on the first date End User uses the Service and continues for one (1) year thereafter (the ”Initial Subscription Period”). The Agreement shall automatically renew for successive one (1) year Subscription Periods thereafter unless terminated in accordance with Section 6.2, or either party elects not to renew (and gives the other party and Service Provider written notice thereof) no less than fifteen (15) days prior to the end of the then-current Subscription Period.
6.2End User may terminate this Agreement at any time, upon prior written notice to Relay2. Either party may terminate this Agreement upon ten (10) days’ prior written notice to the other party of a breach of this Agreement by the other party that remains uncured at the end of such notice period. Any refunds granted upon termination will be determined by the Service Provider. Upon termination of this Agreement, End User’s right to use the Service and all licenses granted by Relay2 hereunder will immediately cease. Notwithstanding the foregoing, End User’s license in Section 4.2 to use the Embedded Software (in the form it is provided to End User, and only as embedded in the Relay2 Hardware, and in accordance with the limitations set forth in Section 4.2 with respect to Software) will not terminate upon termination of this Agreement, so long as the Relay2 Hardware in which such Embedded Software is embedded is still owned and controlled by End User, and so long as End User remains in strict accordance with all terms and conditions of this Agreement. End User understands and agrees that any updates to the Embedded Software are completed via the Service, and therefore upon termination of this Agreement, End User will no longer receive any such updates (or any other features available through the Service), and may only continue to use the Embedded Software (as permitted by the previous sentence) in the configuration of such Embedded Software last saved by End User prior to termination. Upon the transfer of the Relay2 Hardware (or ownership thereof) to any third party or upon notice to End User that End User is in breach of this Agreement, the foregoing license to the Embedded Software shall automatically terminate.
6.3The following Sections shall survive any termination of this Agreement: 3, 4.1, and 5-12 (inclusive).
Relay2 does not offer support directly to End Users. Please contact your Service Provider regarding support and maintenance questions.
THE SERVICE, SOFTWARE, AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS- IS," WITHOUT ANY WARRANTIES OF ANY KIND. RELAY2 HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICE WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, ”CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND RELAY2’S CONTROL. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, RELAY2 ASSUMES NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.
IN NO EVENT WILL RELAY2 (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE, THE SOFTWARE, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICE, SOFTWARE OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICE, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF RELAY2 (OR ITS LICENSORS OR SUPPLIERS) HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THE TOTAL LIABILITY OF RELAY2 HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY END USER TO SERVICE PROVIDER FOR THE RELAY2 HARDWARE AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
End User shall defend, indemnify, and hold harmless Relay2, its affiliates, and each of its employees, contractors, directors, suppliers and representatives, from and against any liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, arising from End User’s actions in connection with any unauthorized use of the Service or Software, including any claim that such actions violate any applicable law or third party right.
11.1Notwithstanding anything else, End User may not provide to Relay2 or any other person (whether through the Service or any other means), or export or re-export, or allow the export or re-export of the Service, any data or information, or any software or anything related thereto or any direct product thereof (collectively ”Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing End User acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, ”Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, ”Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.
11.2Provisions specific to the U.S. Government or any agency thereof: As defined in FAR section 2.101 (acquisition.gov/far), any software and documentation provided by Relay2 are ”commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html are deemed to be ”commercial computer software” and ”commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable (including by operation of law or by way of merger, acquisition, restructuring, asset sale or transfer, or any similar transaction) or sublicensable by End User except with Relay2’s prior written consent. Relay2 may transfer and assign any of its rights and obligations under this Agreement freely and without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and End User does not have any authority of any kind to bind Relay2 in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Relay2 will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. End User agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Relay2. Relay2 is permitted to disclose that End User is one of its customers to any third-party in its sole discretion (including without limitation in its publicity and marketing materials). There are no intended third party beneficiaries to this Agreement, including without limitation any Service Provider.