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Consumer Terms of Service

Consumer Terms of Service

Last revised May 8, 2018

THESE TERMS OF SERVICE INCLUDE A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION.

THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE FROM TIME TO TIME AS DETERMINED BY RELAY IN ITS SOLE DISCRETION. MODIFIED AND/OR UPDATED VERSIONS OF THESE TERMS OF SERVICE WILL BE POSTED AT THESE TERMS OF SERVICE ARE SUBJECT TO CHANGE FROM TIME TO TIME AS DETERMINED BY RELAY IN ITS SOLE DISCRETION. MODIFIED AND/OR UPDATED VERSIONS OF THESE TERMS OF SERVICE WILL BE POSTED AT RELAYPRO.COM/LEGAL/RELAY-TERMS-OF-SERVICE/

RELAY WILL PROVIDE YOU NOTICE OF ANY MATERIAL CHANGES TO THE SERVICES AND/OR THESE TERMS OF SERVICE. EXCEPT AS OTHERWISE DETERMINED BY RELAY, MODIFIED AND/OR UPDATED VERSIONS OF THESE TERMS OF SERVICE WILL BE EFFECTIVE IMMEDIATELY UPON POSTING; MODIFIED AND/OR UPDATED VERSIONS OF THESE TERMS OF SERVICE WILL BE IDENTIFIED BY THE DATE, MONTH AND YEAR THEY BECOME EFFECTIVE. USING THE RELAY SERVICES AFTER THE CHANGES BECOME EFFECTIVE MEANS YOU AGREE TO THE NEW TERMS. IF YOU DON’T AGREE TO THE NEW TERMS, YOU MUST STOP USING THE RELAY SERVICES AND CANCEL THE RELAY SERVICES FOR YOU AND ANY OTHER USERS ACTIVE UNDER YOUR ACCOUNT.

DEFINITIONS:

“AAA” will have the meaning ascribed to such term in Section 19 below.

“Account” means Your Relay account. An Account will be associated with (i) one or more Relay devices; (ii) an Account Owner; and (iii) a Plan.

“Account Owner” means the owner of the Relay account. An owner must (i) be 18 years or older, (ii) have a valid credit card and (iii) and if there are Relay devices being used by children on the Account, the owner of the account must be the parent or legal guardian. There can be multiple Relay devices under one Account. Each Relay device must have an active Service Plan in order to use the Services.

“Activation Date” means the date that (a) you activate your Relay device and select a Plan.

“AUP” means the Relay Acceptable Use Policy, which is posted at relaypro.com/legal/relay-acceptable-use-policy/, as modified by Relay from time to time in Relay’s sole discretion.

“Authorized Retailer” means a retailer that has express permission to sell the Relay device.

“Cancellation Period” will have the meaning set forth in Section 6(g) below.

“Default” occurs: (i) if You fail to make any payment contemplated by these Terms of Service on or before the date two (2) business days immediately after any applicable required date; (ii) if You violate the AUP; (iii) if either Relay or You fail to perform or observe any term or obligation of these Terms of Service, including, without limitation, any document incorporated by reference into these Terms of Service, not otherwise specified in clauses (i) or (ii) above and applicable to the Services, which failure remains uncured thirty (30) calendar days after receipt of written notification from the non-defaulting party informing the defaulting party of such failure, unless these Terms of Service expressly provide that no such cure period applies under the applicable circumstances; (iv) upon the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings, by or against You, unless such proceedings have been dismissed or discharged not later than the date thirty (30) calendar days immediately after the commencement of such proceeding; and/or (v) upon the making of an assignment for the benefit of creditors, adjudication of insolvency, or institution of any reorganization arrangement or other readjustment of debt plan, of or by You.

“Delivery Date” will mean the date that Your Relay device arrived at your address, as reflected on the records of our shipping carrier, if applicable, or the date that You purchased Your Relay device from an Authorized Retailer, if applicable.

“Electronic Tools” means online access, application programming interface (API), or access by any other means, to or by an electronic system to access or manage Your use of the Services.

“Escalation Notice” will have the meaning ascribed to such term in Section 19 below.

“Former User” means an individual, who is not an Authorized Reseller, that is the owner of a Relay device (regardless of whether the Service was ever activated for that Relay) and who then sells that Relay device to a new User.

“Initial Service Term” will have the meaning set forth in Section 4 below.

“Intellectual Property” means patents, pending patent applications, designs, trademarks and/or trade names (whether registered or unregistered), copyrights and related rights, database rights, know-how, trade secrets and/or confidential information, and all other intellectual property rights and similar or equivalent rights which currently exist or are recognized in the future, as well as all applications, extensions and renewals in relation to any such rights.

“International” means anywhere outside of the 48 contiguous United States and Alaska and Hawaii.

“Relay device” means any Relay device and its associated companion parts, such as the power charger and cable, or other Relay accessory(ies) that is active on Your account with Relay.

“Relay Companion App” or “Companion App” means the app required to set up and activate your Relay device. This app will need to be downloaded to a compatible mobile device and you will need to agree to the terms and conditions of any company that houses the Companion App and makes it available for download (for example, Google Play or Apple). You will need to either have a compatible mobile device or purchase one separately.

“Plan” or “Service Plan” means the monthly Service Plan offered by Relay for each Relay device. Each Relay device must be activated on a Plan.

“Policies” means the business policies, practices and procedures, including, but not limited to these Terms of Service, adopted by Relay from time to time.

“Renewal Service Term” will have the meaning set forth in Section 4 below.

“Services” means the Relay service more fully described in Section 1 below made available by Relay pursuant to Your Service Plan and purchased by You from time to time.

“Service Term” will have the meaning set forth in Section 7 below.

“Unauthorized Code” means any virus, Trojan horse, worm, back door, trap door, time bomb, drop-dead device, timer, clock, counter or other limiting routine, as well as any other instructions, designs, software routines, or hardware components designed to: (a) disable, erase, or otherwise harm software, hardware, data, text or any other information stored in electronic form; (b) cause any of the foregoing with the passage of time; or (c) place a program or hardware under the positive control of a person other than an owner or licensee of the program or hardware.

“United States” means the 48 contiguous United States, plus Alaska and Hawaii.

“Usage” means activity that occurs on a particular Relay Device during the Service Term.

“User” means a user (including You) utilizing the Services pursuant to these Terms of Service, whether or not authorized by You.

“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)).

Welcome to the Relay community! So long as You are not in default with respect to Your obligations pursuant to these Terms of Service, Relay will provide You with the Services pursuant to the terms of Your Service Plan for the Service Term. The Service Plan is part of these Terms of Service

  1. Overview.

Your Service Plan provides only for the ability to use the Relay device within the United States. Notwithstanding any term or condition of these Terms of Service 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 Users will receive will depend on Your Equipment, including, without limitation, the WiFi routers your Relay device can access, and/or radio transmissions the Relay 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 the Relay Companion App and other software. Failure to do so can result in temporary or permanent disconnection of the Services, including termination. Coverage is not available everywhere and service speeds are not guaranteed. Actual speeds will vary. 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, slower service speeds, or otherwise impact the quality of service. Services that rely on location information, such GPS navigation, 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 a Relay device in any manner until the software update is complete.

RELAY MAY BE USED ONLY FOR LAWFUL, PROPER AND APPROPRIATE PURPOSES AND MAY NOT BE USED IN ANY WAY THAT IS ILLEGAL, IMPROPER OR INAPPROPRIATE, OR OTHERWISE FAILS TO CONFORM TO THE RELAY ACCEPTABLE USE POLICY POSTED AT relaypro.com/legal/relay-acceptable-use-policy/, WHICH IS INCORPORATED BY REFERENCE HEREIN.

THESE TERMS OF SERVICE INCLUDES A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION.

The Services are subject to the Policies. You agree to adhere to all of Relay’s Policies when using the Services. Relay’s Policies are subject to change at any time with or without notice.

  1. Relay Devices and Related Matters, Including Privacy.

(a) Limited Warranty for Your Relay Device: Relay offers you a limited warranty with your Relay device. To read about more about the Limited Warranty available for your Relay device, go here relaypro.com/legal/relay-limited-warranty/

When You buy Your Relay from a Former User, the following applies: Relay makes no warranty to You regarding the Relay device.

(b) When You buy Your Relay directly from Relay, the following applies: Relay will ship your Relay device(s) to You F.O.B. Relay’s place of shipment. If You receive Relay device(s) that are damaged or nonfunctional upon arrival, You must notify Relay during the limited warranty period. Any Relay(s) timely returned to Relay by You must be fully complete, including all original manufacturer boxes with the UPC code and packing materials, all manuals, blank warranty cards, accessories and any other documentation included with the original shipment to You. You are solely responsible for all costs and expenses connected to the shipment to Relay of any Relay device(s) shipped to Relay for return or exchange. You are responsible for all risk of loss and damage to products being shipped for return or exchange pursuant to this Section 2. If You wish to timely return a Relay device(s), You must use the Electronic Tools made available to You by Relay. You agree to follow Relay’s then-current Policies, as directed by Relay help. Upon Relay’s receipt of any product(s) returned, Relay will examine the product(s) for damage. If the Relay device(s) do not conform to the limited warranty above, Relay may repair, replace or refund the cost of any Relay device(s). Service and response times may vary. Relay may choose to use functionally equivalent re-conditioned, refurbished or new units or parts. Relay will not re-install or back-up any data, applications or software that You may have added to Your Relay device. If Relay determines that any product(s) is(are) found to have been damaged by You, the limited warranty will not apply and, if Relay previously shipped a replacement Relay device to You, Relay may charge you the applicable price for the replacement Relay device.

When You buy Your Relay Device from an Authorized Retailer, other retailer, or Former User, the following applies as applicable: The Authorized Retailer’s, the retailer’s, or the Former User’s, may have additional terms and conditions that apply.

(c) No other express warranty is applicable to any Relay Device(s). THE DURATION OF ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MARKETABILITY, IS LIMITED TO THE DURATION OF THE EXPRESS WARRANTY HEREIN. RELAY WILL NOT BE LIABLE FOR THE LOSS OF THE USE OF THE RELAY DEVICE(S) OR THE SERVICE, INCONVENIENCE, LOSS OR ANY OTHER DAMAGES, DIRECT OR CONSEQUENTIAL, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE RELAY DEVICE(S), THE SERVICE, OR FOR ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY. Some states do not allow the exclusive limitation of incidental or consequential damages or limitations on how long an implied warranty lasts; these limitations or exclusions may not apply to You. This warranty gives you specific legal rights and You may also have other rights which vary from state to state.

(e) If any Relay Device is lost or stolen, You will contact Relay immediately. You acknowledge and agree that, if any Relay Device is lost or stolen, You will be responsible for Usage before You notify Relay of any alleged loss or theft. Lost and/or stolen Relay Device(s) will not reduce or otherwise affect the Service Term and You will remain liable for any amounts due or payable with respect to any replacement Relay Device(s) after You notify Relay of any alleged loss or theft.

(f) Each Relay Device is designed to be activated on the network operated by Relay (and/or underlying mobile network operator that Relay may have an agreement with) and, subject to Your Service Plan. You have no and cannot gain any (for example, through publication, use, etc.) proprietary, ownership or other rights to any identification number, e-mail address or other identifier Relay (and/or underlying mobile network operator) assigns to You, Your Relay Device(s) or Your account.

(g) If any User uses a third-party application, the application may access, collect, use or disclose personal information or require Relay (or its vendors) to disclose such information, including location information (when applicable), to the application provider or other third party(ies). Please read the terms and conditions and privacy policy any third-party application closely. If any User accesses, uses or authorizes third party applications through the Services, You authorize Relay (and its vendors) to provide information related to use of the Services or the application(s). Use of any third party applications is subject to the third party’s terms and conditions and policies, including its privacy policy, if applicable.

(h) Relay device(s) may contain sensitive or personal information. Relay is not responsible for any information on any Relay device, including sensitive or personal information. If possible, Users should remove or otherwise safeguard any sensitive or personal information. By submitting any Relay device to Relay, You agree that Relay’s employees, contractors or vendors may access all of the information on such Relay device.

(i) When the location setting is turned “on” by You, the network operated by Relay will attempt to determine the location of the Relay device(s). Network coverage or environmental factors (such as structures, buildings, weather, geography, landscape, and topography) can significantly impact the ability to access any Relay device’s location.

(j) Relay has adopted a Privacy Policy and Children’s Privacy Policy that addresses how Relay uses, shares and protects such personal information. The Privacy Policy is posted at relaypro.com/legal/relay-privacy-policy/ and the Children’s Privacy Policy is posted at relaypro.com/legal/relay-childrens-privacy-policy/. You consent to Relay’s collection, use and sharing practices described in the Privacy Policies. You also consent to Relay’s collection and use of anonymous information regarding all usage of the Services. Relay is not responsible for any third-party information, content, applications or services Users access, use on any Relay device, or any privacy policies applicable thereto.

  1. Service Activation; Support.

(a) The Activation Date will be used to determine the start of Your Service Term and billing for the Services.

(b) If You need support after the Activation Date, You must use the Electronic Tools made available to You by Relay. You also agree that Relay can proactively contact you through its Electronic Tools.

  1. Service Term. The “Initial Service Term” will be one (1) month from the Activation Date (the “Initial Service Term”). The Initial Service Term (and any applicable Renewal Service Term (as defined below)) will automatically renew for successive one (1) month periods thereafter (each a “Renewal Service Term”) unless terminated in writing by Relay or by You at least thirty (30) days prior to the expiration of the Initial Service Term or Renewal Service Term. In addition to the automatic renewal provided in the immediately preceding sentence, the Initial Service Term or any applicable Renewal Service Term may be otherwise amended and/or extended at any time upon the written agreement of Relay and You.
  2. No Warranties.

(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2 ABOVE WITH RESPECT TO RELAY DEVICE(S), THE SERVICES AND/OR RELATED SERVICES EACH IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH OF RELAY, UNDERLYING MOBILE NETWORK OPERATOR(S), ITS AFFILIATES, SUPPLIERS AND, IF APPLICABLE, RESELLERS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, RELAY, ITS AFFILIATES, UNDERLYING MOBILE NETWORK OPERATOR(S), SUPPLIERS AND, IF APPLICABLE, RESELLERS DO NOT WARRANT THAT THE RELAY DEVICE(S) AND/OR RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT RELAY OR THE RELAY DEVICE(S) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. RELAY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE SERVICES IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, UNAUTHORIZED ACCESS BY THIRD PARTIES OR OTHERWISE. YOU (AND NOT RELAY) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION AND RELAY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGE TO YOU OR YOUR PROPERTY. YOU HEREBY EXPRESSLY ASSUME THE RISK OF ITS OR ANY USER’S USE OF ANY INFORMARATION TRANSMITTED VIA THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM RELAY OR ITS EMPLOYEES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAY NOT APPLY.

(b) RELAY WILL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY YOU FROM OR AGAINST ANY THIRD PARTY CLAIMS ALLEGING THAT YOUR USE OF THE RELAY DEVICE(S), SERVICES OR THE EXERCISE OF ANY RIGHTS GRANTED HEREIN INFRINGES ON ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY. IF A CLAIM IS MADE, OR IN RELAY’S REASONABLE OPINION IS LIKELY TO BE MADE, AGAINST RELAY, YOU, OR ANY THIRD PARTY ALLEGING THAT THE RELAY DEVICE(S) OR SERVICES OR ANY USE THEREOF INFRINGES ANY INTELLECTUAL PROPERTY OF ANY THIRD PARTY, RELAY MAY, IN RELAY’S SOLE DISCRETION, TERMINATE THESE TERMS OF SERVICE AND ALL RIGHTS AND OBLIGATIONS PURSUANT TO THESE TERMS OF SERVICE.

(c) EXCEPT AS PROVIDED IN THE LIMITED WARRANTY AND SECTION 3 ABOVE, RELAY HAS NO OBLIGATION TO PROVIDE ANY SUPPORT TO YOU OR ANY USER WITH RESPECT TO THE RELAY DEVICE(S) OR SERVICES.

  1. Billing and Payment; Credit Information.

(a) Relay will bill You, and You will pay, for the Services at the rates stated in Your Service Plan, as well as any other charges or amounts as described in these Terms of Service. If You cancel Your Services, Your credit card will be credited promptly following Your cancellation by an amount equal to any then applicable credits as of the effective date of Your cancellation. Bills will include all applicable federal, state, and local taxes; all such taxes, and all use, sales, commercial, gross receipts, privilege, or other similar taxes and miscellaneous fees, (together, “Taxes” and “Fees”), whether or not charged to or against Relay, will be payable by You. However, if You provide proof of Your exempt status for a specific Tax, or Fee, Relay will not charge the applicable Tax or Fee due to such exemption. If applicable, You will use the Electronic Tools made available to You by Relay to supply Relay a valid and properly executed tax exemption certificate(s); You agree to follow Relay’s then-current Policies, as directed by Relay support. In such cases You remain responsible for, and agree to pay, any and all remaining non-exempt Taxes and Fees; tax exemption status validation is solely Your responsibility and Relay will not be obligated to consider any retroactive tax exemption. Relay determines the rate for these charges and these amounts are subject to change as are the components used to calculate these amounts. Relay will commence billing pursuant to these Terms of Service on the Activation Date. Thereafter, the charges applicable to the Services will be billed on or about the same day each calendar month.

(b) You agree that all payments by You will be made to Relay via credit card or debit card. Relay may change the types of cards accepted by Relay at any time in its sole discretion. You also agree that Relay can use the services of credit card companies and merchant vendors that automatically charge your new credit or debit card if your previous one expires, is compromised, or otherwise cancelled. You are solely responsible for the use of the account from which payment is made. If You provide an account number that Relay accepts for payment, You authorize Relay to charge all amounts You owe, then or later, to that account and to demand immediate payment from the card issuer. You also agree to pay, pursuant to the terms of Your agreement with Your card issuer, the amounts charged to such account. Each time You or Users use the Services, You reaffirm that Relay is authorized to charge Your credit or debit card. You authorize Relay to charge purchases made online to the account supplied by You to Relay. You are solely responsible to notify Relay promptly if the card information that You previously provided to Relay is no longer accurate. You acknowledge that, if Your card is rejected, or payments are disputed, Relay may terminate these Terms of Service, the Services and/or Your Service Plan until payments are resumed and received or disputes have been finally resolved and You will remain solely responsible for all payments due if Your card is rejected. You acknowledge that Relay may not be able to distinguish between credit and debit cards. While Relay may send You messages about Your billing, Relay is not obligated to do so and may change or cease its messages at any time.

(c) If Relay terminates the Services for You due to Default, then, in addition to any other amounts then due and payable by You to Relay, You also will be obligated to pay to Relay the fees described in these Terms of Service and/or Service Plan. Upon the occurrence of a Default, Relay may immediately limit, suspend or terminate the Services for You.

(d) Relay retains the right to bill, including, without limitation, amend or correct any bill previously issued, for the Services provided pursuant to these Terms of Service, for a period of up to six (6) months, commencing from the date of the provision of the Services to You. Relay will retain such billing rights for such six (6) month period notwithstanding any prior billing to You for the same period(s) and regardless of any otherwise conflicting billing conditions in these Terms of Service. For the duration of such six (6) month period, Relay will not be deemed to have waived any rights with regard to billing for the Services provided pursuant to these Terms of Service during such period, nor will any legal or equitable doctrines apply, including estoppel or laches. Unpaid bills and/or charges may be sent to third party collection agencies.

(e) If Relay at any time limits or suspends or terminates Your use of the Services pursuant to these Terms of Service and/or the Relay Acceptable Use Policy, (i) Relay will notify You of such limitation or suspension by email Your email address(es) on Relay’s books and records and/or through the Electronic Tools made available to You by Relay; (ii) Relay may, in Relay’s sole discretion, restore the Services to You and may condition such restoration upon satisfaction of such conditions as Relay determines necessary; (iii) Relay will not bill You for any portion of any applicable billing period during which Relay has suspended Your use of the Services pursuant to these Terms of Service and/or the Relay Acceptable Use Policy, provided, however, the applicable Service Term will extend by a period of time equal to the period of Relay’s suspension of Your use of the Services and any amounts due and payable with respect to the applicable Service Term, as extended, will remain due and payable pursuant to these Terms of Service and Your Service Plan.

(f) Relay may provide Your payment history and other account billing / charge information to any credit reporting agency or industry clearinghouse.

(g) (i) When You buy Your Relay device directly from Relay, the following applies: You can cancel the Relay Services WITHIN 30 DAYS of Your Delivery Date (“Cancellation Period”). To cancel during the Cancellation Period, You must return any applicable Relay device(s) as described in Section 2(b) above and any applicable Relay device(s) must be in normal working order. If You do not return any applicable Relay device(s) during the Cancellation Period, Relay may prevent such Relay device(s) from working on any network, and Relay may elect not to process any attempted cancellation of the Service. If You cancel during the Cancellation Period and return any applicable Relay device(s) during the Cancellation Period, Relay will promptly refund to You (i) the monthly rate stated in Your Service Plan if You previously have paid Relay, and (ii) the cost of Your Relay device(s) that You return to Relay; provided, however, (x) if You return any applicable Relay device(s) that are not fully complete, including all components and any other documentation included with the original shipment to You, or is otherwise damaged due to water or otherwise, Relay may deduct from any refund amounts; (y) if You return any applicable accessories that are not in their original, unopened packaging, Relay will not refund any amounts previously paid for such accessories; Under no circumstances will Relay return to You any Relay device(s) or accessories returned to Relay pursuant to this Section 6(g).

(ii) When You buy Your Relay Device from an Authorized Retailer, the following applies: You may return Your Relay device to an Authorized Retailer from which You bought Your Relay device pursuant to any applicable return policies the Authorized Retailer may have in place from time to time. If You return Your Relay device to the applicable Authorized Retailer, You also must cancel the Services with Relay using the Electronic Tools made available to You by Relay. If You cancel during the fourteen (14) days immediately after Your Activation Date, Relay will promptly refund to You the monthly rate stated in Your Service Plan if You previously have paid Relay, When You buy Your Relay device from a Former User, You have no right to return the Relay device to Relay for a refund. You may cancel the Services pursuant to Section 11 below.

  1. Applicable Charges. Except as expressly provided in these Terms of Service or Your Service Plan, Relay may increase any applicable charges upon at least thirty (30) days’ prior written notice to You.
  2. Billing Disputes. If You dispute any amounts charged to You by Relay pursuant to these Terms of Service, You will pay in full all charges billed by any applicable due date and thereafter submit written notification, within thirty (30) calendar days of the date of the disputed charges, using the Electronic Tools made available to You by Relay; You agree to follow Relay’s then-current Policies, as directed by Relay support. Relay will respond to You pursuant to Relay’s then-current Policies. Any dispute resolved in favor of You will be credited as appropriate to the next bill issuable by Relay pursuant to these Terms of Service. If Relay determines that any disputed amounts are correct as billed pursuant to these Terms of Service, Relay will notify You in writing that the charges have been deemed valid and legitimate, and the dispute will be considered resolved by both parties; if, for any reason, any amount(s) remain due from You related to such dispute, then all such amounts will be due and payable immediately. Relay reserves the right to deny or delay any and all billing disputes and/or credits if Your account is in arrears or otherwise not in good standing.
  3. Resumption of Service. If You request the restoration of the Services to You after a limitation, suspension or termination, Relay has the sole and absolute discretion to restore the Services to You and may condition restoration upon satisfaction of such conditions as Relay determines necessary, including, without limitation, Your execution or delivery of a new agreement, payment of all past due amounts in full, completion of Relay’s credit approval process, and/or the making of advance payments.
  4. Termination for Default; Effect of Termination for Default. Relay or You may terminate these Terms of Service and, in the case of Relay, the Services provided hereunder, upon the occurrence of a Default. Any notice from You must use the Electronic Tools made available to You by Relay; You agree to follow Relay’s then-current Policies, as directed by Community Care. Relay will respond to You pursuant to Relay’s then-current Policies. In the event of Default by Relay, these Terms of Service and Your access to and use of the Services provided hereunder will terminate without further liability to You; provided, however, You will remain responsible for any amounts due pursuant to these Terms of Service incurred prior to such termination. In the event of Default by You, the following fees will apply, which You acknowledge and agree are customary and reasonable and do not constitute a penalty or premium: any amounts due pursuant to Your Service Plan and these Terms of Service incurred prior to such termination.
  5. Requested Termination by You During Service Term; Effect of Asserted Termination by You. If You notify Relay of the termination of these Terms of Service or the disconnection of the Services in writing using the Electronic Tools made available to You by Relay upon at least thirty (30) calendar days prior notice during the Initial Service Term or during any applicable Renewal Service Term, Relay will disconnect the Services as of the date of such requested termination; provided, however, (i) You remain solely responsible for all amounts due pursuant to Your Service Plan and these Terms of Service, (ii) such notification will immediately constitute a Default by You as of the date of such requested termination without any applicable cure period and all amounts due pursuant to Your Service Plan and these Terms of Service will apply, whether such notification is delivered prior to or after the Activation Date or prior to or after any applicable installation.
  6. Termination by Relay. In addition to any other right that Relay may have to limit, terminate or suspend these Terms of Service, if Relay determines, in its sole discretion, that Your ongoing use of the Services and/or the specific method or technology utilized by You place the network operated by Relay, other community members, partners including mobile carriers or the overall business(es) of each in jeopardy, Relay reserves the right to terminate these Terms of Service and Your access to the Services immediately and without notification.
  7. License; Intellectual Property.

(a) (a) Subject to Your compliance with these Terms of Service, Relay grants You a non-exclusive, non-transferable license to use the Services and any Electronic Tools solely in connection with Your use of Your Relay device. The Services, any Electronic Tools and/or Your Relay device(s) may incorporate software and other technology owned or controlled by third parties. Any such third-party software or technology incorporated falls under the scope of these Terms of Service. Any and all other third-party software will be subject to Your acceptance of a license agreement with such third-party.

(b) Relay, the Relay device(s) and any software contained therein, and the Services each is the Intellectual Property of Relay. You will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, any Electronic Tools and/or Your Relay device(s); (ii) modify, translate or create derivative works based on the Services, Relay device(s) and/or any Electronic Tools; or (iii) remove any proprietary notices or labels on the Services, any Electronic Tools and/or Your Relay device(s). You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or in connection with the Services, any Electronic Tools and/or Your Relay device(s). Any third party Intellectual Property included in the Services, any Electronic Tools and/or Your Relay device(s) is the property of the respective owner of such Intellectual Property and may be protected by applicable law. Nothing in these Terms of Service gives You any right or license to any trademarks and/or trade names (whether registered or unregistered), signs, logos, icons, slogans, banners, screen shots, trade dress, links or other brand features of Relay, including, without limitation “Relay”, without the prior written consent of Relay, which consent may be withheld in the sole discretion of Relay for any reason. If You from time to time provide suggestions, comments and/or other feedback (collectively “Feedback”) to Relay through any of our community forums or otherwise, with respect to Relay, the Relay device(s) or the Services, You grant to Relay a non-exclusive, royalty-free, sublicensable, irrevocable, worldwide license to use, store, reproduce, save, modify, create derivative works to, and distribute the Feedback.

(c) If, after termination of these Terms of Service for any reason, You continue to use Your Relay device(s) for any purpose (which will not include the Services), Section 13(b) above (and any other provision of these Terms of Service which by its nature survives termination) will continue to apply.

  1. Limitation of Liability.

(a) IN NO EVENT WILL RELAY BE LIABLE FOR ANY DIRECT, INDIRECT, ALLEGED, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND ALL BUSINESS OR OPERATIONAL RELATED LOSSES, IF ANY) ARISING OUT OF OR RELATED TO THE RELAY DEVICE(S), SERVICES AND/OR PRODUCTS PROVIDED PURSUANT TO THESE TERMS OF SERVICE, EQUIPMENT, RELAY DEVICES, AND/OR ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES PURSUANT TO THESE TERMS OF SERVICE.

(b) RELAY’S AGGREGATE LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE ARE LIMITED TO SERVICE CREDITS THAT WILL NOT EXCEED THE LESSER OF (I) THE FEES ACTUALLY PAID TO RELAY BY YOU PURSUANT TO THESE TERMS OF SERVICE DURING THE PRECEDING SIX (6) CALENDAR MONTHS, OR (II) ONE THOUSAND US DOLLARS ($1,000.00).

  1. Indemnity. You will indemnify and hold harmless Relay and its stockholders, directors, officers, employees, agents, licensors, representatives, affiliates and any underlying network mobile operator(s) who provide mobile network coverage for the Services from and against any and all alleged or actual losses, costs, claims, liability of any kind, damages (including to any tangible property or bodily injury to or death of any person), or expense of whatever nature, (including reasonable attorneys’ fees) to or by any third party, relating to or arising from (a) the use of the Relay device(s) or Services provided to You and/or any User, whether or not You and/or any User has knowledge of or has authorized access for such use, (b) any damage to or destruction of equipment, or Relay device(s) not caused by Relay or its agents, and (c) any breach of these Terms of Service by You. You will be solely responsible for implementing any installation, configuration, and/or connection of any of Your Equipment and have the sole and exclusive responsibility for the security and integrity of Your Equipment, if any. You therefore will indemnify and hold harmless Relay and its stockholders, directors, officers, employees, agents, licensors, representatives, affiliates and any underlying network mobile operator(s) who provide mobile network coverage for the Services from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by You or a third-party relating to or arising from the use or operation of Your Equipment. Your indemnification in this subsection includes any alleged or actual losses or claims in connection with unauthorized access to or use of the Relay device(s) or Services by any third-party through Your Equipment, regardless of whether such unauthorized access is unintentional, accidental, intentional or fraudulent and regardless of whether You had knowledge of such unauthorized access. In all such cases of unauthorized access through or to Your Equipment, You retain full and sole responsibility for any and all charges for the Services as otherwise provided in Your Service Plan or these Terms of Service. If Relay grants You access to the Services (or Your account) by Electronic Tools, You agree that You are fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through such Electronic Tools. You agree that You are fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Services by any Electronic Tools. You will indemnify and hold harmless Relay and its stockholders, directors, officers, employees, agents, licensors, representatives and affiliates from and against any actual or alleged losses, costs, claims, liability of any kind, damages, or expenses or fees (including reasonable attorneys’ fees) on the part of or which may be incurred by You, or a third-party, relating to or arising from the use or operation of Electronic Tools, including, without limitation, any alleged or actual losses or claims in connection with unauthorized access to, use, transactions, or activity conducted through the Electronic Tools, regardless of whether such unauthorized access is unintentional, accidental, intentional, or fraudulent, and regardless of whether You had knowledge of such unauthorized access. In all such cases of unauthorized access through or to the Services by Electronic Tools, You retain full and sole responsibility for any and all charges for the Services as otherwise provided in Your Service Plan or these Terms of Service.
  2. Acceptable Use Policy; Usage Limitations; Off-Network Roaming; Other Usage Matters; Matters Related to Data Services.

(a) All use of the Services must comply with the Relay Acceptable Use Policy, which is posted at relaypro.com/legal/relay-acceptable-use-policy/, and is incorporated herein by reference. By using the Services, You agree to comply with the AUP, as modified by Relay from time to time in Relay’s sole discretion. Any amendment to the AUP will be effective immediately upon the posting of the modified AUP at relaypro.com/legal/relay-acceptable-use-policy/. In addition, any voice messages that You send (a) will not contain any material that is unlawful; (b) will not violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of any third parties; and (c) will not include any spamming or any fraudulent, illegal, or unauthorized use. You are solely responsible and liable for all use of the Services by any User, even if such use occurs without Your permission.

(b) In addition to those uses prohibited as illegal, improper or inappropriate pursuant to the Relay Acceptable Use Policy or otherwise, You will not (and will not permit Users to): (i) generate excessive network traffic through the continuous sending of voice messages or other audio content, or the operation of hosting services, each as determined by Relay in its sole discretion, (ii) maintain continuous active network connections through the use of machine-to-machine connections that do not involve active participation by a person; (iii) utilize excessively, as determined by Relay in its sole discretion, any community member support; (iv) utilize any Relay device(s) in a manner inconsistent with normal consumer usage, including, without limitation, any disassembly or modification of any Relay device(s); (v) modify any software included in any Relay device(s); (vi) utilize any Relay device(s) as a modem for computers or other equipment (or otherwise tether to computers or other equipment); (vii) violate or infringe any copyright, patent, trademark or trade secret or right of privacy or publicity or any other personal or proprietary right of any third parties; (viii) will not send or attempt to send any message(s) that include a virus, Trojan horse, worm, back door, trap door, time bomb, drop-dead device, timer, clock, counter or other limiting routine, as well as any other instructions, designs, software routines, or hardware components designed to: (A) disable, erase, or otherwise harm software, hardware, data, text or any other information stored in electronic form; (B) cause any of the foregoing with the passage of time; or (C) place a program or hardware under the positive control of a person other than an owner or licensee of the program or hardware; or (ix) will not send or attempt to send any message(s) that include any spamming, or any fraudulent, illegal or unauthorized use. Any action or activity in Violation of this Section 16(b) can result in immediate suspension or termination of the Services.

(c) Relay makes absolutely no guarantees about the data content any User accesses or any voice message on a Relay device. Data content may be: (i) unsuitable for children/minors; (ii) unreliable or inaccurate; or (iii) offensive, indecent or objectionable. Users are solely responsible for evaluating the data content accessed by Users or anyone on Your account. data content from third parties may also harm the Relay device(s) or its software. To protect the network operated by Relay, services, or for other reasons, Relay may place restrictions on accessing certain data content, limit throughput or the amount of data You and/or any User can transfer, or otherwise limit or terminate the Services and/or these Terms of Service. data content provided by Relay’s vendors or third parties is subject to cancellation or termination at any time without notice to You.

(d) In addition to any other rights or remedies that Relay may have pursuant to these Terms of Service, the Service may be slowed, suspended, terminated or restricted for misuse, interference with Relay’s network or Relay’s ability to provide service to other customers.

  1. Resale Prohibition. The Services are provided for Your use only. You may not under any circumstances resell or offer to resell the Services. Any failure by You to comply with this Section 17 will constitute a Default pursuant to these Terms of Service without any applicable cure period. In addition to any other rights or remedies that Relay may have as a result of such Default, including, without limitation, termination of these Terms of Service, You also will be liable to Relay for any additional charges and/or damages which may be incurred by Relay as a result of any unauthorized resale or offer to resell. If You resell Your Relay device(s) to anyone else and Relay then permits the re-activation of the Relay device(s), the purchaser must comply with any Policies Relay then has in effect to activate Services for the Relay device(s).
  2. Third Party Beneficiaries. The parties do not intend by the execution, delivery, or performance of these Terms of Service to confer any benefit, direct or incidental, upon any person or entity not a party to these Terms of Service.
  3. Dispute Resolution Process; Governing Law. We think Relay and You will get along extraordinarily well. That being said:

(a) It is the mutual desire of the parties to promptly and fully resolve any dispute arising in connection with these Terms of Service in good faith, confidentially, and informally with minimal transaction costs; no public statement may be made by any party regarding any such dispute. If either party determines that the dispute cannot be resolved informally, then such party will initiate an escalation process by giving written notice (“Escalation Notice”) to the other party. You and an authorized representative of Relay will meet in person or by conference call, together with any persons assisting them, within fifteen (15) days after delivery of the Escalation Notice. All negotiations conducted by You and an authorized representative of Relay are confidential and will be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state rules of evidence. You and an authorized representative of Relay will conduct such additional meetings as they deem necessary to exchange relevant information, will appoint staff to engage in resolution of any disputed facts, and will attempt to resolve the dispute. Should You and an authorized representative of Relay be unable to resolve the dispute within such fifteen (15) days, or within such additional time as the parties may otherwise agree to in writing, either party may demand mediation, 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, THE PARTIES AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING UNDER OR RELATED TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE, AND AGREE TO SUBMIT ALL CONTROVERSIES, CLAIMS AND MATTERS OF DIFFERENCE TO ARBITRATION ACCORDING TO THE COMMERCIAL RULES AND PRACTICES OF THE AMERICAN ARBITRATION ASSOCIATION (“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 these Terms of Service and who will be selected in accordance with 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. If the amount claimed to be in dispute is less than $500,000, all applicable expedited procedures of the AAA will apply. The arbitrator’s fees and costs of the arbitration will be borne by the party against whom the award is rendered, except that if the arbitrator issues a split decision, granting 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 these Terms of Service. The arbitration award will be final and binding on both parties of these Terms of Service, will not be subject to any appeal and will be enforceable in any court of competent jurisdiction.

(b) 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. YOU WILL NOT BE A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING.

(c) Unless otherwise required by local law, these Terms of Service will be governed by, construed under and enforced in accordance with the laws of the State of North Carolina without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods. In the event any party brings a civil action or initiates judicial proceedings of any kind related to these Terms of Service (except for actions to enter or collect on judgments), the parties consent to the exclusive personal jurisdiction and venue of the federal and state courts located in Wake County, North Carolina and the prevailing party will be entitled to recover its costs, including reasonable attorney’s fees.

  1. Notices. Any notice(s) to You pursuant to these Terms of Service, including, without limitation, any notices of material changes to these Terms of Service, will be sent to Your primary contact of record as provided by You to Relay. Notice(s) to You will be deemed to be delivered when sent via one or any combination of the following on Relay’s books and records: Your email address(s) and/or posting to any Electronic Tool made available to You by Relay; Your facsimile number; and/or next-day delivery service (for example, FedEx or the United States Postal Service) to Your physical or postal address. Any notice(s) to Relay pursuant to these Terms of Service will be sent via next-day delivery service (for example, FedEx or the United States Postal Service) to Relay at 4200 Six Forks Road, Suite 1800, Raleigh, NC 27609, Attention: Office of the General Counsel.
  2. Miscellaneous. You are not relying on any affirmation of fact, description, or promise from (or purported to be from) any person or entity, nor any oral or written representation or warranty that is not expressly included in these Terms of Service. Any alterations or additions to these Terms of Service made by You by any means will not be considered part of these Terms of Service. Relay’s failure to insist upon or enforce strict performance of or strict compliance with any provision of these Terms of Service will not be construed as a waiver of any provision or right; neither the course of conduct between the parties nor trade practice will act to modify any provision of these Terms of Service or any Supplement entered into from time to time pursuant to these Terms of Service. You may not assign these Terms of Service without Relay’s prior written consent. These Terms of Service will be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of these Terms of Service is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of these Terms of Service will not be affected thereby. In the event any specified time frame or deadline denotes calendar days, it is agreed that when the last date of required action or response falls on a weekend or holiday, the action and/or deadline will automatically extend to the next business day. Agreement headings are provided for reference purposes only.
  3. Additional Terms

We may from time to time have contractual relationship(s) with network mobile operators so that the Relay device and the Relay Services can utilize certain aspects of those network mobile operators cellular networks. The following terms apply with respect to any network mobile operator (“Carrier”). You acknowledge that You have no contractual relationship with the Carrier and You are not a third-party beneficiary of any agreement between Relay and the Carrier. You understand and agree that the Carrier will have no legal, equitable or other liability of any kind to You. Subject to FCC number portability rules, You have no property or other rights in any number assigned to it and You understands that any such number can be changed from time to time. You acknowledge that the Relay Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of a transmission network. You agree that the Carrier will not be responsible for such interruptions of the Relay Services or the inability to use the Relay Services within or outside the Territory. You understand that the Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Relay Services. You agree that Service may be temporarily suspended or permanently terminated without notice in the event that Relay’s agreement with the Carrier is terminated or suspended or in the event You violates the Carrier’s acceptable use policy or other Carrier rules and policies. You waive any and all claims against the Carrier or the underlying wireless service carrier, including any roaming carrier, for such suspension or termination. You expressly understand and agree that the Relay Services may be strictly controlled and limited by the Carrier’s tariff, if any, and the laws, rules and regulations of the Federal Communications Commission and other United States governmental authorities which from time to time have jurisdiction. In no event will the Carrier be liable for the failure or incompatibility of Equipment utilized by You in connection with to the Relay Services. You will use Your Equipment at your own risk. You agree to indemnify, defend and hold the Carrier and the officers, employees and agents of the Carrier harmless from and against all claims, causes of action, losses, expenses, liability or damages (including reasonable attorneys’ fees and costs), and including without limitation for any personal injury or death, arising in any way directly or indirectly in connection with the your use of the Relay device and Relay Services. You agree that this provision will survive the termination of this Terms of Service. You acknowledge that the Carrier can assign any agreement between the Carrier and Relay for the Relay Services.

THESE TERMS OF SERVICE, TOGETHER WITH ANY ATTACHMENTS REFERENCED IN THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, THE TERMS OF ANY APPLICABLE SERVICE PLAN, THE ACCEPTABLE USE POLICY POSTED AT relaypro.com/legal/relay-acceptable-use-policy/, OR ANY OTHER ADDENDA ENTERED INTO FROM TIME TO TIME, EACH OF WHICH IS INCORPORATED HEREIN BY REFERENCE, CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN YOU AND RELAY WITH RESPECT TO THE RELAY DEVICE(S), THE SERVICE, AND ANYTHING ELSE RELATED TO THE RELAY PRODUCT. YOU ARE NOT RELYING ON ANY AFFIRMATION OF FACT, DESCRIPTION, OR PROMISE FROM (OR PURPORTED TO BE FROM) ANY PERSON OR ENTITY, NOR ANY OTHER ORAL OR WRITTEN REPRESENTATION OR WARRANTY THAT IS NOT EXPRESSLY INCLUDED IN THESE TERMS OF SERVICE.

WHEN YOU ACCEPT THESE TERMS OF SERVICE, YOU ARE REPRESENTING THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE LEGALLY ABLE TO ACCEPT AN AGREEMENT. IF YOU ACCEPT ON BEHALF OF ANY ORGANIZATION, YOU ARE REPRESENTING THAT YOU ARE AUTHORIZED TO BIND THAT ORGANIZATION AND, WHERE THE CONTEXT REQUIRES, “YOU” MEANS THE ORGANIZATION. IF YOU ACCEPT ON BEHALF OF ANOTHER RELAY DEVICE OWNER THAT IS A CHILD, YOU ARE REPRESENTING THAT YOU ARE THE PARENT OR LEGAL GUARDIAN.

 

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