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Enterprise Master Agreement Terms

Enterprise Master Agreement Terms

THIS MASTER AGREEMENT (“AGREEMENT”) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

By accepting this Agreement, either by purchasing, accessing or using a Service, or authorizing or permitting any Agent or End-User to purchase, access or use a Service, You agree to be bound by this Agreement as of the date of such purchase, access or use of the Service (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Relay that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not purchase, use or authorize any purchase or use of the Services.

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; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of the Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound, or any applicable law or regulation.

The purpose of this Agreement is to establish the terms and conditions under which Subscriber may purchase, access and/or utilize Relay Services as described in an Order Form signed by You.

In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Order Form, the terms of the Order Form govern.

SECTION 1. ACCESS TO THE SERVICES

1.1 Service. We will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Order Form(s) in accordance with Your Service Plan. Your Service Plan provides only for the ability to use the Services within the United States. Notwithstanding any term or condition of this Agreement to the contrary, Relay and any underlying mobile network operator cannot guarantee that the Services will always function without disruptions, delay or other imperfections. The specific network coverage You receive will depend on Your Equipment, including, without limitation, the WiFi routers your Relay device(s) can access, and/or radio transmissions the Relay device(s) can pick up. By using the Services, You agree to keep Your Equipment up to date, including by downloading the latest upgrades and updates of any Relay related software and other third-party software. Failure to do so can result in temporary or permanent disconnection of the Services, including termination. Coverage can not be guaranteed. Continuous functionality or availability of the Services is not guaranteed. Coverage is not available everywhere and service speeds are not guaranteed. Actual speeds and the availability of Services will vary, including occasionally not working, based upon coverage factors, which Relay does not control. Gaps in coverage exist within Relay’s estimated coverage areas for radio transmissions, when applicable, that, along with other factors both within and beyond the control of Relay (network problems, network or internet congestion, software, signal strength, the Relay device, structures, buildings, weather, geography, topography, server speeds of the websites accessed, etc.), may result in dropped and blocked connections, voice transmission capability, slower service speeds, or otherwise impact the quality of the Services. Services that rely on location information, such GPS location, depend on a Relay device’s ability to acquire satellite signals (which typically are not available indoors) and network coverage. While a Relay device is receiving a software update, a User may be unable to use the Relay device and the Services in any manner until the software update is complete.

THE SERVICES MAY BE USED ONLY FOR LAWFUL, PROPER AND APPROPRIATE PURPOSES AND MAY NOT BE USED IN ANY WAY THAT IS ILLEGAL, IMPROPER OR INAPPROPRIATE..

1.2 Support. We will provide Our standard customer support for the Services, and upgraded support, if purchased.

1.3 Modifications. You acknowledge that Relay may modify the features and functionality of the Services during the Subscription Term. Relay shall provide You with commercially reasonable advance notice of any material degradation of any material feature or functionality.

1.4 Additional Features. We will notify You of applicable Supplemental Terms and/or alternate agreement(s) prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms or alternate agreement(s) where applicable. Notwithstanding the following, any Additional Features that increase the price of Your Service Plan require a signed written agreement, such as an Order Form or Order Form amendment, by You before You can be charged for such Additional Features

SECTION 2. USE OF THE SERVICES

2.1 Compliance. You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account. You agree that You, Your Agents and Your End-Users shall be jointly and severally responsible for compliance with all laws and regulations applicable to Your use of the Services, including without limitation, those laws or regulations requiring consent of all parties to recording of voice calls or other communications; laws or regulations relating to the transmission and recording of location information; unsolicited or unauthorized communications; data privacy and security regulations, and regulations requiring You to implement internal compliance programs. Without limiting the foregoing, You are solely responsible for ensuring that the use of the Services to store, transmit and utilize Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents, End-Users or third-parties, including governmental agencies. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes.

2.2 Content and Conduct. In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree in Your use of the Services not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by Relay; (b) use the Services to process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Relay; (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized or unsolicited messages that directly or indirectly support fraudulent activities; (g) use the Services to store or transmit files, materials, data, text, audio, or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is (or directly or indirectly supports activities that are) unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as defined in 45 C.F.R. 160.103 provided that You are a “business associate” or “covered entity” as defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Relay; (l) use the Services to knowingly post, transmit, upload, link to, send or store any malicious software or computer virus;(m) use or launch any automated system that accesses a Service (i.e., a bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use or use the Services in violation of this Agreement.

2.3 System Requirements. You are responsible for maintaining the reliability and accuracy of Your Equipment at all time.

2.4 Internal Business Purposes Only. You may not resell or outsource the Service(s) except as expressly authorized by Relay.

2.5 No Competitive Access. You may not access the Services for competitive purposes.

SECTION 3. TERM, CANCELLATION AND TERMINATION

3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an Order Form, Your subscription will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences.

3.2 Cancellation. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term. Relay may also terminate this Agreement upon thirty (30) days written notice for convenience.

3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

If this Agreement is terminated by You in accordance with this section 3.3, or if We terminate for convenience in accordance with Section 3.2 other than within thirty (30) days of the end of a Subscription Term, We will refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination.

If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe Relay, You must pay within thirty (30) days any then unpaid Subscription Charges associated with the remainder of such Subscription Term.

3.5 No Refunds. Except for Your termination rights under Section 3.3, if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.

3.6 Export of Service Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Your request, We will make Service Data available to You for export or download provided You are willing to pay the reasonable costs of export and/or download. Thereafter, We will have no obligation to maintain or provide any Service Data more than thirty (30) days after the effective date of termination or expiration of this Agreement. Upon request, unless prohibited by law or legal order, We will delete Your Service Data in Our Services.

SECTION 4. BILLING, PLAN MODIFICATIONS AND PAYMENTS

4.1 Payment and Billing. All Subscription Charges are due in full upon commencement of Your Subscription Term unless otherwise expressly set forth in this Agreement, or an Order Form. You are responsible for providing valid and current Account information and You agree to promptly update Your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users.

4.2 Upgrades. If You choose to upgrade Your Service Plan during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.

4.3 Downgrades. If You desire to downgrade Your Service Plan under any Service Plan during a Subscription Term, You must provide Relay with thirty (30) days advance written notice. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service available to You under Your Account. Relay will not be liable for any such loss.

4.4 Taxes. 

  1. Relay is registered to do business in the United States and Canada.  Where applicable, Taxes will be charged on the invoices issued by Relay in accordance with the applicable laws.  Relay, in its sole discretion, will calculate the amount of Taxes due.  You agree to pay such Taxes if so invoiced.  If You utilize Relay products or services outside of the United States and Canada, our charges do not include any Taxes applicable to these taxing authorities.  You are responsible for paying Taxes in those jurisdictions in which the product and service is being utilized. 
  2. Tax determination by Relay is based on the location You provide Us as Your  “Shipped To” address.  Relay reserves the right to cross reference this location against available evidence to validate whether Your location is accurate and if Relay determines Your location is inaccurate, Relay reserves the right to charge any applicable Taxes based on Your determined location. 

4.5 Payment Agent. Payments made by credit card, debit card or certain other payment instruments for the Services are billed and processed by Relay’s Payment Agent. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent and in accordance with any other legal or regulatory obligations they may have.

SECTION 5. CONFIDENTIAL INFORMATION

Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the Parties and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. To be clear, any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any such non-disclosure agreement.

SECTION 6. OWNERSHIP, PRIVACY AND SECURITY OF SERVICE DATA, PROCESSING OF PERSONAL DATA

6.1 Ownership of Service Data. Subscriber shall continue to retain Subscriber’s ownership rights to all Service Data Processed under the terms of this Agreement.

6.2 Safeguards. Relay will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data.

6.3 Hosting and Processing of Service Data. Unless otherwise specifically agreed to by Relay, Service Data may be hosted by Relay, or their respective authorized third-party service providers, in the United States, or other locations around the world. In providing the Services, Relay will engage with other authorized service providers to process Service Data.

6.4 Processing of Personal Data. If and to the extent that the Service Data includes Personal Data, the Parties will comply with their respective obligations set out in the Customer Data Processing Addendum, attached hereto as Exhibit A and incorporated by reference.

SECTION 7. SUSPENSION

We reserve the right to restrict functionality or suspend the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services and remove, disable or quarantine any Service Data, up to any including termination, if (a) We reasonably believe that You, Agents or End-Users have violated this Agreement; (b) We suspect or detect any malicious software or computer virus connected to Your Account or use of a Service by You, Agents or End-Users or (c) We determine in our sole discretion that the risk presented by continuing to provide You with Services could result in Relay suffering financial harm. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions but nothing herein shall preclude Relay from taking these actions immediately pending Your receipt of notice. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion. Relay will use commercially reasonable efforts to notify You promptly (email sufficient) of any such suspension of Services and the reason(s) why.

SECTION 8. NON-RELAY SERVICES

If You decide to enable, access or use Non-Relay Services, Your access and use of such Non-Relay Services shall be governed solely by the terms and conditions of such Non-Relay Services. Relay does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-Relay Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data), or any interaction between You and the provider of such Non-Relay Services. We cannot guarantee the continued availability of such Non-Relay Service features, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non-Relay Service ceases to make the Non-Relay Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Relay with respect to such Non-Relay Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Non-Relay Services, or Your reliance on the privacy practices, data security processes or other policies of such Non-Relay Services. By enabling any Non-Relay Services, You are expressly permitting Relay to disclose Service Data as necessary to facilitate the use or enablement of such Non-Relay Services.

SECTION 9. INTELLECTUAL PROPERTY RIGHTS

Each Party shall retain all rights, title and interest in any Intellectual Property Rights. The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of Relay associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Relay and belong exclusively to Relay.

Relay will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Relay also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf.

You may only use the Relay Marks in a manner permitted by Relay. You may not attempt, now or in the future, to claim any rights in the Relay Marks, degrade the distinctiveness of the Relay Marks, or use the Relay Marks to disparage or misrepresent Relay or Our Services.

SECTION 10. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

10.1 Authority. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

10.2 No Warranties. THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM AND MAKE NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE PRODUCTS AND SERVICE(S) PROVIDED PURSUANT TO THIS AGREEMENT AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICE(S) WILL MEET SUBSCRIBER’S REQUIREMENTS OR THAT THE SERVICE(S) WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. WE EXERCISE NO CONTROL OVER, AND HEREBY DISCLAIMS ANY RESPONSIBILITY FOR, THE ACCURACY AND QUALITY OF ANY INFORMATION TRANSMITTED WITH THE USE OF THE SERVICE(S). SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY AND RISK FOR SUBSCRIBER’S OR ITS CUSTOMER’S, AGENTS AND/OR END USER’S USE OF THE SERVICES PROVIDED BY RELAY. WE HAVE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY OR RESPONSIBILITY WHATSOEVER FOR THE ACTIONS OF THIRD-PARTIES, THIRD-PARTY SERVICE PROVIDERS. SUBSCRIBER, SUBSCRIBER’S AGENTS, CUSTOMERS AND/OR END USERS ACCESS THE SERVICE(S) AT SUBSCRIBER’S OWN RISK. SUBSCRIBER HEREBY EXPRESSLY ASSUMES THE RISK OF ITS OR ITS AGENTS, CUSTOMERS AND/OR END USER’S USE OF ANY INFORMATION TRANSMITTED VIA THE SERVICE(S)

10.3 Service Limitations. You acknowledge that use of any emergency or panic feature is dependent upon the availability of a network connection, whether a cellular network, LoRa (for those Relay products that contain LoRa) or Your Wi-Fi service provided by a carrier You contract with and that uses Your equipment. Such availability may not always be present. At any time such network connection is not available, any attempt to transmit an alert by a Relay device will not be received, and the emergency or panic feature will be unavailable. YOU SHOULD IMPLEMENT SECONDARY MEANS OF COMMUNICATION, AS APPROPRIATE UNDER THE CIRCUMSTANCES, TO AVOID THE RISK OF INJURY OR DEATH OR DAMAGE TO PROPERTY IN THE EVENT THAT A NETWORK CONNECTION IS UNAVAILABLE.”

SECTION 11. INDEMNIFICATION

11.1 Indemnification by Us. We will indemnify and hold You harmless from and against claims brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Relay for such defense, provided that (a) You promptly notify Relay of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with Relay in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our sole option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Relay in its sole discretion, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Relay for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than Relay or Relay Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 11.1 state the sole, exclusive and entire liability of Relay to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.

11.2 Indemnification by You. You will indemnify and hold Relay harmless against any third-party claim (a) arising from or related to purchase, sale, resale, or use of the Service by You, Agents or End-Users; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We fully cooperate with You in connection therewith.

SECTION 12. LIMITATION OF LIABILITY

12.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF RELAY), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, RELAY’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.

12.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, RELAY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

12.4 Any claims or damages that You may have against Relay shall only be enforceable against Relay and not any other entity or its officers, directors, representatives or agents.

SECTION 13. DISPUTE RESOLUTION PROCESS

(a) The Parties wish to promptly and fully resolve any dispute arising in connection with this Agreement in good faith, confidentially, and informally with minimal transaction costs. If either Party determines that any dispute cannot be resolved informally, then such Party will initiate an escalation process by giving written notice (“Escalation Notice“) to the other Party. Each Party then will name one (1) representative, which representative will be an executive knowledgeable of the subject matter in dispute and with authority to discuss the dispute (hereinafter the “Officers“). The Officers will meet in person or by conference call not later than fifteen (15) calendar days after delivery of the Escalation Notice. All negotiations conducted by the Officers will be confidential and will be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any other applicable rules of evidence. The Officers will conduct such additional meetings as they deem necessary to exchange relevant information, will appoint their respective staff to attempt to resolve any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable to resolve the dispute within fifteen (15) days, or such additional time as the Parties may otherwise agree in writing, either Party may demand mediation by written notice to the other Party, whereupon the parties will, in good faith, mediate the dispute no later than thirty (30) days after such demand through the services of a mutually selected mediator, the cost of whom will be borne equally by the Parties, at a date and location selected by the mediator after consultation with the Parties. If the dispute is not resolved after applying the escalation procedures set forth above (or if either Party fails to timely appoint Officers, comply with a demand for mediation or otherwise fail to meet its obligations pursuant to this Section 16(a)), the Parties agree to waive any right to trial by jury in any judicial proceeding arising under or related to the subject matter of this Agreement, and will submit all controversies, claims, disputes and matters of difference to arbitration according to the commercial rules and practices of the AAA. Arbitration hereunder will occur within sixty (60) days of the date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and who will be selected in accordance with applicable AAA rules. Arbitration proceedings will take place in Wake County, North Carolina. Discovery will be permitted, including the use of interrogatories, requests for admission and production of documents and depositions. The arbitrator’s fees and costs of the arbitration will be borne by the Party against whom the award is rendered; provided, however, if the arbitrator grants partial relief to both Parties, the arbitrator will equitably allocate the arbitrator’s fees and other costs. Each Party will pay its attorney’s fees related to any dispute related to this Agreement. The arbitration award will be final and binding on both Parties, will not be subject to any appeal and will be enforceable in any court of competent jurisdiction.

(b) Notwithstanding any term or condition of this Agreement to the contrary,We may, but will not be obligated, to utilize the dispute resolution proceedings in connection with any collection of amounts not paid.

(iii) ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS ACTION OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. SUBSCRIBER, ITS AGENTS AND END USERS WILL NOT BE A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING.

SECTION 14. NOTICE OF DATA PRACTICES

14.1  Improving the Services. We may receive, collect, store, run various analytics on (both by Us and third-parties), and/or share Service Data based on Our legitimate interest to market, improve, or operate the Services as well the development of other legitimate business interests. If and to the extent that the Service Data includes Personal Data, the Parties will comply with their respective obligations set out in the Customer Data Processing Addendum, attached hereto as Exhibit A and incorporated by reference.

14.2 Communicating with You. We may communicate with You and Your Agents, send You and Your Agents product announcements and promotional offers or contact You and Your Agents about the Services. If You or an Agent does not want to receive communications from Us, please indicate this preference by sending an email to Your account representative and provide us with the name and email address of each Agent that no longer wishes to receive these communications. You and Your Agents will continue to receive transactional messages that are required for Relay to provide the Services to You (such as billing notices and product usage notifications).

14.3 Connecting the Services. In the event that You decide to use a Non-Relay Service, Relay may obtain other information, including Personal Data, from third parties and combine that with information We collect through Our Services. Any access that We may have to such information from a third-party is in accordance with the authorization procedures determined by that service. By authorizing Us to connect with a Non-Relay Service, You authorize Us to access and store Your name, email address(es), current city, profile picture URL, and any other Personal Data that the Non-Relay Service makes available to Us, and to use and disclose it in accordance with this Agreement.

14.4 Third-Party Service Providers. You agree that Relay, and the third-party service providers that are utilized by Relay to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide, secure or improve the Services.

SECTION 15. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT

15.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement in connection with any merger or change of control of Relay or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

15.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and Relay with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.

15.3 Amendment. We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Your continued use of the Services following the effective date of any such amendment may be relied upon by Relay as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

SECTION 16. SEVERABILITY

If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

SECTION 17. EXPORT COMPLIANCE AND USE RESTRICTIONS

The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets and Control of the United States Department of Treasury. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software, Products and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software, Products or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services, Software or Products to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.

SECTION 18. RELATIONSHIP OF THE PARTIES

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

SECTION 19. NOTICE

All notices provided by Relay to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Relay in writing by Courier or U.S. mail to 4200 Six Forks Road, Suite 1800, Raleigh, NC 27609 Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

SECTION 20. GOVERNING LAW

This Agreement shall be governed by the laws of the State of North Carolina, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Wake County, North Carolina. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End-Users.

Section 21. AGREEMENT TO CONDUCT BUSINESS IN ENGLISH

The parties confirm that it is their express wish that this Agreement and all documents related to this Agreement, and all communications exchanged between the parties in the context of the execution of this Agreement, be in the English language only. Les parties confirment que c’est leur volonté expresse que cette convention, de même que toute documentation s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de celle-ci soit exclusivement en langue anglaise.

SECTION 22. SURVIVAL

Sections 2.1, 3.5, 3.6, 4.4, 5 – 6, 9-22 shall survive any termination of this Agreement with respect to use of the Services by You, Agents or End Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

“Account” means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.

“Additional Feature(s)” means additional features or functionality that are available or enabled through the Service, but do not form part of the Service. Additional Features are purchased or enabled separately and distinctly from Your Service Plan.

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

“Agent” means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent and/or administrator, each as identified through an individual login.

“Agreement” means the Master Subscription Agreement together with any and all Supplemental Terms, Order Forms, and other documents located on Relay’s Business Website.

“API” means the application programming interfaces developed, made available and enabled by Relay that permit Subscribers to access certain functionality provided by the Services.

“Associated Services” means products, services, features and functionality designed to be used in conjunction with the Services that are not included in the Service Plan to which You subscribe.

“Beta Services” means a product, service or functionality provided by Relay that may be made available to You to try at Your option at no additional charge which is clearly designated as beta.

“Confidential Business Information” means all Confidential Information that is not Service Data, including, without limitation, Your Agents’ Personal Data and Account information, which Relay may store in its systems separate from the Service and Our security policies and procedures.

“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, and Confidential Business Information, Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.

“Consulting Services” means consulting and professional services (including any training, success or implementation services) provided by Relay Personnel as indicated on an Order Form or other written document such as a SOW.

“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Relay to You, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).

“End-User” means any person or entity other than Subscriber or Agents with whom Subscriber, its Agents, or its End-Users interact while using a Service.

“Force Majeure Event” means an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Relay Services, or acts undertaken by third parties, including without limitation, denial of service attack.

“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

“Order Form: means Our generated service order form(s) executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Relay devices You are purchasing and the Service Plan applicable to Your subscription.

“Payment Agent” means a payment agent designated by Relay. For example, if You choose to pay for a Service with a credit card or certain other payment instruments in a currency other than the U.S. Dollar, Relay will use a Payment Agent to process the credit card payment.

“Personal Data” means any information relating to an identified or identifiable natural person that is (i) included in the Service Data or otherwise provided to Relay and that Relay Processes on behalf of Customer in the course of providing the Services, and (ii) subject to the Data Protection Laws.

“Personnel” means employees and/or non-employee service providers and contractors of Relay in connection with performance hereunder.

“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.

“Products” means any hardware or other physical product or device, such as the Relay device(s), which is used in conjunction with the Services. Product is included in the definition of Service, although there may be additional terms and conditions that govern use of the Relay device or certain other Products. When there are additional terms and conditions for Products, they supplement and are to be read in conjunction with this Agreement and do not override the terms of the Agreement unless the terms explicitly provide that they override.

“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Relay” means Relay, Inc., a Delaware corporation, its d/b/a “Relay” or any of its successors or assignees.

“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.

“Service(s)” means any Product, Software and services provided by Relay and used or available for use by You, including the Relay and Relay+ devices, other Relay products, such as the wi-fi beacon, and any follow on hardware product, any software, either stand alone or associated with the Relay device or the services provided by Relay or that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed that are provided under this Agreement. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.

“Service Data” means theinformation collected and stored through Your use of the Service, including those You permit to the use the Service. Depending on what information You provide the Service, Service Data may may include, without limitation, Usage Data and Personal Data.

“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed in an Order Form) for the Services.

“Site” means a website operated by Relay, Inc., including www.relaypro.com, as well as all other websites that Relay, Inc., operates.

“Software” means software provided by Relay (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service. Software is included in the definition of Service, although there may be additional terms and conditions that govern certain Software. When there are additional terms and conditions for Software, they supplement and are to be read in conjunction with the Agreement and do not override the terms of this Agreement unless the terms explicitly provide that they override.

“Subscription Charges” means all charges associated with Your access to and use of an Account.

“Subscription Term” means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.

“Supplemental Terms” means the additional terms and conditions that are (a) included or incorporated on an Order Form via hyperlink or other reference; (b) additional terms related to a particular hardware product, software, service or Additional Feature that You use during Your Service Term.

“Taxes” means taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.

“Non-Relay Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Non-Relay Services which may be integrated directly into Your Account by You or at Your direction.

“Usage Charges” means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.

“Usage Data” means metrics and information regarding Your use of the Service, including evaluating how Agents and End-Users use the Service.

“Your Equipment” means any internal wiring or extensions, required conduit, facilities, power or other similar infrastructure, systems, equipment, routers, software and networks used in connection with the Services, whether or not owned or controlled by You (other than the Relay device(s)).

“We,” “Us” or “Our” means Relay as Relay is defined herein.

EXHIBIT A

Customer Data Processing Addendum

This Customer Data Processing Addendum (“DPA”) supplements and forms part of the Enterprise Master Agreement Terms (“Agreement”) between Relay, Inc. and (“Customer”). Unless clearly stated otherwise, references to “Sections” in this DPA refer to sections of this DPA.

With respect to the Processing of Personal Data, the parties agree as follows:

  • Definitions. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. As used in this DPA, the capitalized terms below have the meanings set forth below.
    • “CCPA” means the California Consumer Privacy Act of 2018, Cal.
      Civ. Code § 1798.100 et seq., as amended by the California Privacy Rights Act.
    • “Data Breach” means any breach of security that leads to the
      accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of or access to Personal Data Processed by Relay or a Sub-processor. Data Breach does not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other similar incidents.
    • “Data Controller” means an entity that determines the purposes
      and means of the Processing of Personal Data.
    • “Data Processor” means an entity that Processes Personal Data on
      behalf of a Data Controller.
    • “Data Protection Laws” means all data protection and privacy
      laws applicable to the Processing of Personal Data under this DPA, including, where applicable, GDPR, CCPA, the Consumer Data Protection Act, Code of Virginia Title 59.1 Chapter 52 § 59.1-571 et seq., the Colorado Privacy Act, Colorado Revised Statute Title 6 Article 1 Part 13 § 6-1-1301 et seq., the Act Concerning Personal Data Privacy and Online Monitoring, Connecticut Public Act No. 22-15, and the Consumer Privacy Act, Utah Code Annotated Title 13 Section 2 § 1 et seq.
    • “EEA” means the member states of the European Union, as well as
      Iceland, Liechtenstein, and Norway.
    • “GDPR” means Regulation 2016/679 of the European Parliament and
      of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and any member state law implementing the same, and for the purpose of this DPA includes the corresponding laws of the United Kingdom (including the UK GDPR and Data Protection Act 2018).
    • “Personal Data” means any information relating to an identified
      or identifiable natural person that is (i) included in the Service Data or otherwise provided to Relay and that Relay Processes on behalf of Customer in the course of providing the Services, and (ii) subject to the Data Protection Laws.
    • “Processing” means any operation or set of operations which is
      performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction, and “process,” “processes” and “processed” shall be interpreted accordingly.
    • “Relay” means Relay, Inc., a Delaware corporation, its d/b/a
      “Relay” or any of its successors or assignees.
    • “Sensitive Personal Data” means Personal Data revealing racial
      or ethnic origin; political opinions; religious or philosophical beliefs; trade union membership; physical or mental health; sex life or sexual orientation; the Processing of genetic data, biometric data for the purpose of uniquely identifying an individual; Personal Data relating to criminal convictions and offenses; government-issued identification number; financial account numbers including payment card numbers; precise geolocation data; and such subsets of Personal Data that are deemed “sensitive” or require enhanced protections under applicable Data Protection Laws.
    • “Services” means the services provided by Relay to Customer
      under the Agreement.
    • “Sub-processor” means any Data Processor engaged by Relay to
      assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA.
  • Relationship with the Agreement.
    • The parties agree that this DPA shall replace any existing DPA or other contractual provisions pertaining to the subject matter contained herein the parties may previously have entered in connection with Services.
    • Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail.
    • Any claims brought under or in connection with this DPA are subject to the terms and conditions, including but not limited to all exclusions and limitations of liability, set forth in the Agreement.
  • Roles of the Parties; Processing of Personal Data**.**
    • Customer is the Data Controller of Personal Data, except where Customer acts as a Data Processor for another Data Controller, in which case Customer warrants to Relay that its appointment of Relay as a Data Processor, and its Processing instructions to Relay, have been authorized by the relevant Data Controller. Relay is a Data Processor of Personal Data. This DPA shall apply solely to the Processing of Personal Data by Relay acting as a Processor or Subprocessor to provide the Services.
    • Customer agrees that (i) it shall comply with its obligations under the Data Protection Laws and any applicable industry standards and self-regulatory programs that are binding on Customer in respect of its Processing of Personal Data and any Processing instructions it issues to Relay; and (ii) Customer or, where Customer acts as a Processor, the relevant Data Controller, has provided all notices, and obtained all consents, rights, and authorizations necessary under Data Protection Laws for Relay to Process Personal Data and provide the Services as described in the Agreement, and (iii) Customer shall ensure that access to the Products and Services is limited to authorized Agents and End-Users. Customer shall promptly notify Relay and cease Processing Personal Data in the event any required authorization or legal basis for Processing is revoked or terminates. Customer further agrees that it shall not provide to Relay any Sensitive Personal Data unless such types of Sensitive Personal Data are indicated in the attached Schedule 1, and Relay will have no liability under this DPA or the Agreement for Sensitive Personal Data not so indicated.
    • Customer acknowledges and agrees that the Service Data shall not include any data that constitutes Protected Health Information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), unless Customer provides advanced written notice to Relay that the Service Data will include PHI.
    • Relay shall Process Personal Data only to provide the Services and for the purposes described in the Agreement, or otherwise in accordance with Customer’s documented and agreed-upon lawful instructions. Customer acknowledges that Relay shall have the right to Process Personal Data in order to provide Services to Customer, fulfill its obligations under the Agreement and this DPA, and for legitimate purposes related to Relay’s business operations, such as to operate, manage, test, and maintain the Services, provide support and/or use of the Services such as billing, account management, technical support, fraud prevention, and to enhance and develop the Services, including by providing insights and reporting related to use of the Services. For the avoidance of doubt, Relay may aggregate or de-identify Personal Data in accordance with Data Protection Laws and use such aggregated or de-identified information for any purpose.
    • With respect to Personal Data that is subject to the CCPA, Relay shall Process such Personal Data only for limited and specified purposes as set forth in the Agreement and this DPA, and shall not otherwise:
      • “sell” or “share” Personal Data, as those terms are defined
        in the CCPA;
      • retain, use, or disclose Personal Data for any purpose other
        than for the business purposes specified in the Agreement, and this DPA, including retaining, using, or disclosing the Personal Data for a commercial purpose other than the business purposes specified in the Agreement and this DPA, or as otherwise permitted by the CCPA;
      • retain, use, or disclose Personal Data outside of the direct
        business relationship between Relay and Customer; or
      • except as permitted by the CCPA, combine Personal Data that
        Relay receives from, or on behalf of, Customer with personal information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with data subject. Notwithstanding the foregoing, Relay may combine Personal Data received or collected from or on behalf of Customer with other Personal Data received by Relay from third party sources for the specific purpose of performing the Services, provided such combination is performed for a “business purpose” as defined in and in accordance with the CCPA and regulations adopted pursuant thereto. Relay may, for the specific purpose of performing the Services, Process Personal Data received or collected from or on behalf of Customer to create “aggregate consumer information,” as that term is defined by the CCPA, and combine such aggregate consumer information with aggregate consumer information derived from other sources, provided that the outputs of such combination also constitute “aggregate consumer information,” as defined by the CCPA.

Relay certifies that it understands and will comply with the restrictions of this Section 3.5.

  • Relay will comply with Data Protection Laws and will provide a level of privacy protection for Personal Data consistent with the requirements of the Data Protection Laws. Relay will promptly notify Customer if it makes a determination that it can no longer meet its obligations under this DPA or comply with the Data Protection Laws. Customer shall have the right to take reasonable and appropriate steps to help ensure that Relay uses Personal Data in a manner consistent with Customer’s obligations under the Data Protection Laws, and upon notice, including from Relay pursuant to the preceding sentence, to take reasonable and appropriate steps to stop and remediate any unauthorized Processing of Personal Data.
  • The subject matter and duration of the Processing, the nature and purposes of the Processing, and the types of Personal Data and categories of data subjects are as described in Schedule 1 to this DPA.
  • Data Security. Each party shall take appropriate technical and organizational measures against unauthorized or unlawful Processing of Personal Data or its accidental loss, destruction, or damage. Relay shall implement and maintain commercially reasonable technical and organizational security measures designed to protect Personal Data from Data Breaches, including, as appropriate, the security measures described in Article 32 of the GDPR. Notwithstanding the foregoing, Customer agrees that it is responsible for its secure use of the Services, including securing its account authentication credentials, protecting the security of Personal Data when in transit, and taking any appropriate steps to securely encrypt or backup Personal Data, as well as any other security obligations outlined in the Agreement.
  • Data Breach Response. Relay shall notify Customer without undue delay after becoming aware of any Data Breach. Relay shall make reasonable efforts to identify the cause of the Data Breach and shall undertake such steps as Relay deems necessary and reasonable in order to remediate the cause of such Data Breach. Relay shall provide information related to the Data Breach to Customer in a timely fashion and as reasonably necessary for Customer to maintain compliance with the Data Protection Laws.
  • Confidentiality of Processing. Relay shall ensure that any person who is authorized by Relay to Process Personal Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality.
  • Return or Deletion of Personal Data. Upon termination or expiration of the Agreement, Relay shall (at Customer’s election) delete or return, if feasible, to Customer all Personal Data remaining in its possession or control, save that this requirement shall not apply: (i) to the extent Relay is required by applicable law to retain some or all of the Personal Data; or (ii) to Personal Data Relay has archived on back-up systems. In all such cases, Relay shall maintain the Personal Data securely and limit Processing to the purposes that prevent deletion or return of the Personal Data. The terms of this DPA shall survive for so long as Relay continues to retain any Personal Data.

Sub-processing. Customer hereby authorizes Relay to engage Sub-processors to Process Personal Data on Customer’s behalf, including the Sub-processors currently engaged by Relay as listed at: relaypro.com/legal/relay-subprocessor-list. Relay shall: (i) take commercially reasonable measures to ensure that Sub-processors have the requisite capabilities to Process Personal Data in accordance with this DPA; (ii) enter into a written agreement with each Sub-processor that requires the Sub-processor to protect the Personal Data to a materially similar standard required by this DPA; and (iii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Relay to breach any of its obligations under this DPA. Relay will notify Customer in the event that it intends to engage different or additional Sub-processors that will Process Personal Data pursuant to this DPA, which may be done by email or posting on the website identified above. Customer must raise any objection to posted Sub-processors within thirty (30) calendar days of the posted update. Customer’s objection shall only be effective if submitted to Relay in writing, specifically describing Customer’s reasonable belief that Relay’s proposed use of the Sub-processor(s) will materially, adversely affect Customer’s compliance with the Data Protection Laws. In any such case, the parties will make reasonable efforts to reconcile the matter. In the event Customer’s concern cannot be resolved, Relay may terminate the Agreement with no penalty and Customer shall immediately pay all fees and costs then due and owing and to Relay.

  • International Transfers.
    • Relay may Process Personal Data in the United States and
      anywhere else in the world where Relay or its Sub-processors maintain data Processing operations.
    • If and to the extent Relay’s performance or Customer’s use of
      the Services involve a transfer (or onward transfer) by Customer to Relay of Personal Data originating in the EEA, Switzerland, or the United Kingdom that is subject to GDPR or the Swiss Federal Act on Data Protection, where any required adequacy means can be met by entering into an approved set of Standard Contractual Clauses, Customer represents and warrants that it will notify Relay that such international transfers will occur prior to the initiation of any such international transfer. In that case, the parties will work together in good faith to put in place the Standard Contractual Clauses or other lawful data transfer mechanism recognized by applicable Data Protection Laws.
  • Data Protection Authority Inquiries. Relay shall provide commercially reasonable cooperation to assist Customer in its response to any requests from data protection authorities with authority relating to the Processing of Personal Data under the Agreement and this DPA. In the event that any such request is made directly to Relay, Relay shall not respond to such communication directly without Customer’s prior authorization, unless legally compelled to do so. If Relay is required to respond to such a request, Relay shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
  • Individual Rights and Requests. To the extent Customer does not have the ability to independently correct, amend, or delete Personal Data, or block or restrict Processing of Personal Data, then at Customer’s written direction and to the extent required by Data Protection Laws, Relay shall comply with any commercially reasonable request by Customer to facilitate such actions. Relay shall, to the extent legally permitted, promptly notify Customer if it receives a request from an individual data subject for access to, correction, amendment or deletion of that person’s Personal Data, or a request to restrict Processing. Relay shall provide Customer with commercially reasonable cooperation and assistance in relation to handling of a data subject’s request, to the extent legally permitted and to the extent Customer does not have the ability to address the request independently. To the extent legally permitted, Customer shall be responsible for any costs arising from Relay’s provision of such assistance.
  • Data Protection Impact Assessments; Prior Consultations with Supervisory Authorities. Upon Customer’s written request, Relay shall provide Customer with reasonable cooperation and assistance as needed to fulfil Customer’s obligation under any Data Protection Laws to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent Customer does not otherwise have access to the relevant information, and to the extent such information is available to Relay. Relay shall provide reasonable assistance to Customer in the cooperation or prior consultation with the Supervisory Authority in the performance of its tasks relating to this Section, to the extent required under any Data Protection Laws.
  • Audits and Inspections. Relay shall provide written responses (on a confidential basis) to all commercially reasonable requests for information made by Customer regarding Processing of Personal Data, including responses to information security reviews, that are necessary to confirm Relay’s compliance with this DPA. To the extent Relay’s responses are not sufficient to enable customer to satisfy its obligations under applicable Data Protection Laws, Relay shall cooperate with audits and inspections performed by Customer or a vendor of Customer reasonably acceptable to Relay, provided however, that any audit or inspection: (i) may not be performed unless necessary to determine Relay’s compliance with this DPA and Customer reasonably believes that Relay is not complying with this DPA, or as otherwise specifically required by applicable Data Protection Laws; (ii) must be conducted at Customer’s sole expense and subject to reasonable fees and costs charged by Relay; (iii) may be conducted on no less than thirty (30) days prior written notice from Customer, at a date and time and for a duration mutually agreed by the parties; and (v) must be performed in a manner that does not cause any damage, injury, or disruption to Relay’s premises, equipment, personnel, or business. Notwithstanding the foregoing, Relay will not be required to disclose any proprietary or privileged information to Customer or an agent or vendor of Customer in connection with any audit or inspection undertaken pursuant to this DPA.
  • Law Enforcement Requests. If a law enforcement or other governmental agency sends Relay a request or other lawful process for Personal Data (for example, a subpoena or court order), Relay may attempt to redirect the agency to request that data directly from Customer. As part of this effort, Relay may provide Customer’s basic contact information to the law enforcement agency. Relay will not voluntarily disclose Personal Data to a law enforcement or other governmental agency absent a legal obligation to do so, and if applicable law compels Relay to do so in response to a demand received from such agency, then Relay shall use reasonable efforts to give Customer prior notice of the demand to allow Customer to seek a protective order or other appropriate remedy, unless Relay is legally prohibited from doing so.
  • Miscellaneous
    • This DPA will be subject to the governing law identified in the
      Agreement without giving effect to conflict of laws principles.
    • No one other than a party to this DPA, its successors and
      permitted assignees shall have any right to enforce any of its terms.
    • This DPA may be entered into by the parties in any number of
      counterparts. Each counterpart will, when executed and delivered, be regarded as an original, and all the counterparts will together constitute one and the same instrument.

SCHEDULE 1

Details of Processing

  • Data Processor

The Data Processor is Relay, Inc., the provider of the Services.

  • Data Controller

The Data Controller is the Customer identified in the DPA, a user of the Data Processor’s Services.

  • Categories of Data Subjects

The categories of data subjects are determined by the Customer and may include: [Check all that apply]

[_] employees (personnel engaged by Customer) / non-employee workers (individuals acting in a business capacity as independent contractors to Customer)

[_] consumers or customers (individuals acting in a personal or household capacity who engage with products or services of Customer)

[_] job applicants (individuals seeking employment from Customer)

[_] other (specify where possible): [____________________]

  • Types of Personal Data

The types of Personal Data Processed by Relay are determined by the Customer and may include: [Check all that apply]

[_] personal identification information (name, date of birth)

[_] contact details (email, phone, address)

[_] real-time or precise location

[_] education and training details

[_] employment-related data

[_] family, lifestyle, and social circumstances

[_] digital, device, and social media identifiers or digital profiles

[_] account credentials

[_] immigration status or citizenship information

[_] contents of communications not directed to Relay or Customer

[_] any other categories of Personal Data provided by or on behalf of Customer to Relay in connection with the Services (specify where possible): [____________________]

  • Types of Sensitive Personal Data

The types of Sensitive Personal Data Processed by Relay are determined by the Customer and may include: [Check all that apply]

[_] none

[_] racial or ethnic origin

[_] political opinions

[_] religious or philosophical beliefs

[_] trade union membership

[_] genetic data

[_] biometric data

[_] data concerning health

[_] sex life or sexual orientation

[_] government issued identification (driver’s license, social security number, or other national identity number)

[_] financial, economic and insurance data, including financial account numbers

  • Duration of the Processing

The duration of the Processing shall be the term of the Agreement as set forth therein.

  • Subject Matter, Nature, and Purposes of the Processing

Relay will Process Personal Data as necessary to perform the Services under the Agreement, and for such other purposes as may be described in the Agreement, the DPA, or other instructions of Customer.



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