Terms & Conditions - North America


Terms & Conditions - North America (2023 v 1.1)

cegard/smart by CEDES
Skyler elevate
– the elevator service solution by relayr®

These Terms and Conditions (“Terms”) are incorporated into the order to which they are attached, or which makes reference to these Terms ("Order") and govern such Order and the provision of hardware and the SaaS elevator solution and related services as described therein. By signing an Order, the Company (as defined in such Order) accepts these terms and conditions.

SECTION 1 - SUBSCRIPTION SERVICES.

1.1   License.  Relayr grants to Company a limited, non-exclusive, non-transferable, and non-sublicensable (except as otherwise expressly set forth in these Terms) license to access and use the Subscription Services solely: (1) in accordance with these Terms; (2) subject to Company’s timely payment of all Fees; (3) during the applicable Subscription Period; and (4) within the Territory identified in the Order. As further described in these Terms, Company may make certain portions of the Subscription Services available to users associated with its Customers.

1.2   Description.  The “Subscription Services” include (1) access for Users to Interfaces; (2) access to relayr’s Materials and Deliverables (if any); and (3) use of any and all software embedded in any of the foregoing (“Software”), all as more particularly defined and described in the Order and these Terms. The Subscription Services together with any relayr support obligations set forth in the Order are referred to as the “Services”.

1.3   Changes.  Relayr may make changes to the Subscription Services from time to time, including to reflect changes in technology, industry practices, and patterns of use; however, relayr’s changes to the Subscription Services will not result in a material reduction in the level of Subscription Services provided to Company for the duration of the Subscription Period. The Subscription Services may be temporarily interrupted due to the implementation of such changes or for general maintenance or upgrades.

1.4    Acceptable Use.  Except as otherwise expressly set forth in these Terms, Company shall not and shall not permit or authorize others (including employees, Users, third parties) to: (1) sell, rent, lease, license, make available, permit access to, or distribute the Subscription Services to any third party; (2) use the Subscription Services in a timeshare or service bureau arrangement; (3) copy, modify, disassemble, reverse engineer, decompile, create derivative works of, or attempt to derive the object or source code of, the Subscription Services or Materials; (4) use the Subscription Services or Materials in conjunction with or to develop any competing service or product; (5) circumvent, disable, or otherwise interfere with security-related features of the Subscription Services; (6) interfere with the Subscription Services or take any action that imposes or may impose a disproportionately large load on relayr’s infrastructure; (7) remove, deface, obscure, or alter any copyright notices, trademarks, or other proprietary rights (including logos) affixed to or provided as part of the Subscription Services or Materials; (8) upload or transmit any Data to or via the Subscription Services unless all necessary rights and consents, including from data subjects, have been obtained; (9) use the Subscription Services to send communications or messages that are unlawful, inappropriate, or in violation of a third party’s intellectual property rights; and/or (10) otherwise use the Subscription Services in an unlawful manner, in a manner not in compliance with any Materials, or in breach of these Terms.

SECTION 2 - INTERFACES; USERS. 

2.1   Interfaces.  As part of the Subscription Services relayr will provide access to the interfaces (“Interfaces”) described in the Order. All Interfaces are web-based. In the event relayr makes an Interface available via mobile application (a “Mobile App”), availability is dependent on (a) the User having an appropriate smart phone or tablet; and (b) third-party websites from which the Mobile App may be downloaded (and agreement to such websites’ terms and conditions).

2.2   Users. “Users” include Company Users and Customer Users. “Company Users” are employees and contractors of Company, such as account managers, dispatchers, and technicians. “Customer Users” are employees of Customer of Company. Company may permit (1) Company Users to access and use the Interfaces that are described in the Order as being for Company Users (if any); and (2) Customer Users to access and use the Interfaces that are described in the Order as being for Customer Users (if any), all provided that such access and use is in accordance with these Terms. Company remains responsible and liable for all acts or omissions of Users, and any breach of these Terms by a User will be considered a breach by Company. The maximum number of Users permitted to access and use each Interface is set forth in the Order; that number of Users applies to the entire Order and not to each subscription.

2.3   User Access.  Before Users are able to access and use any Interface, they will need to register, provide Account Data, and agree to (via click-through or otherwise) relayr’s End User License Agreement (“EULA”). Users may also need to input certain information via the Interfaces, including information about the installed location and elevator. Company and its Users are responsible for obtaining Internet access and software and hardware that meet relayr’s general security and minimum system and performance requirements necessary for such access and use.

2.4   Passwords.  Users shall not share their passwords or other access credentials with others; Company must immediately notify relayr in writing if Company becomes aware that User account names or passwords are lost, stolen, or being used in an unauthorized manner.

SECTION 3 - ALERTS.

The Interfaces may display alerts (“Alerts”) if the Hardware senses conditions outside of pre-set operating parameters. In no event are relayr or CEDES responsible for taking any action based on an Alert, including any preventative or remediation actions. THE SUBSCRIPTION SERVICES ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM, NOR SHOULD THEY BE USED FOR ANY LIFE SAFETY OR CRITICAL PURPOSES OR AS A SUBSTITUTE FOR REGULAR OR REQUIRED MAINTENANCE OR INSPECTIONS.  ANY ALERTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. NO GUARANTEE IS MADE THAT THE SUBSCRIPTION SERVICE WILL IDENTIFY, ALERT, OR WARN AGAINST POTENTIAL ISSUES OR HAZARDS, AND THE SUBSCRIPTION SERVICE WILL NOT, AND CANNOT, PREVENT SUCH ISSUES OR HAZARDS. Under no circumstances will CEDES or relayr dispatch services to a location based on an Alert. The Subscription Services are not designed to shut off or control elevators in any way.

SECTION 4 - SUPPORT

4.1   Generally.  Company will be provided with a point of contact for any support related issues pertaining to the Services or Hardware.  For Services-related issues, CEDES will reasonably assist Company in contacting relayr and informing relayr of the issue; otherwise, CEDES has no responsibilities for the Services, including for correcting Services-related issues. For Hardware-related issues, relayr will reasonably assist Company in contacting CEDES and informing CEDES of the issue; otherwise, relayr has no responsibilities for the Hardware, including for correcting Hardware-related issues.

4.2   Technical Support – Subscription Services.  Relayr will provide Eligible Personnel with basic software-related technical support during normal business hours (Monday to Friday, 9:00am to 5:30pm Eastern Time), excluding holidays. Relayr will provide such technical support to up to three (3) Company personnel (“Eligible Personnel”) identified by Company in writing to relayr.  To receive support, Eligible Personnel must provide responses to relayr’s reasonable requests for information and otherwise cooperate with relayr. Company is responsible for providing support to its Customers and Customer’s Users.

4.3   Technical Support - Hardware.    CEDES will provide technical support during normal business hours (Monday to Friday, 8:00am to 5:00pm Central Time), excluding holidays. To receive support, Company personnel must provide responses to CEDES’ reasonable requests for information and otherwise cooperate with CEDES. Outside these hours, CEDES will make its best efforts to provide support. Company is responsible for providing support to its customers.

4.4   Materials.  CEDES or Relayr may from time to time provide Company or Users with user, installation, instructional, and operating manuals and guides, training videos, and/or other similar materials in connection with the Subscription Services or Hardware (collectively, “Materials”).

4.5   Other.  CEDES and Relayr agree to use reasonable commercial efforts to perform the support obligations specified in the Order.  Company shall be responsible for providing relayr with any technical information, designs, documentation, or other cooperation, personnel, contributions, or items reasonably required by relayr to provide the support and neither CEDES nor relayr shall be responsible for delays related to Company’s failure to do so.

SECTION 5 - DATA

5.1   Generally.  To provide the Subscription Services, relayr and CEDES may have access to (a) data collected by or from the Hardware and Subscription Services (“Sensor Data”); (b) account data collected as part of registration processes, in connection with relayr’s and CEDES’ support services, or otherwise (“Account Data”);  (c) metadata or other data collected by the Hardware, Interfaces, Subscription Services, or otherwise that may, for example, identify behaviors or provide context or additional information about Company, Third Parties, Sensor Data, and/or Account Data (“Metadata”); and/or (d) any other information or data described in their Privacy Policies (collectively, "Data"). Data may contain personally identifiable information (“PII”) such as name, address, email address, and/or phone number. Data will be considered “Anonymized” if it has had all personally identifying information removed.

5.2   PII. relayr and CEDES will protect and use PII in compliance with applicable law and their then-current privacy policies (“Privacy Policies”). The Privacy Policies are subject to updates in relayr’s or CEDES’ independent discretion.

5.3   Relayr or CEDES Use of Data.  Relayr or CEDES, jointly or independently, may use Data in any form as provided by their Privacy Policies, in connection with the Services, for its internal business purposes, or as otherwise required by applicable law (e.g., to respond to legal process). Relayr or CEDES also may share Data with third party service providers who need to access and use such Data in connection with the provision of Services, relayr’s or CEDES’ permitted uses of the Data, or as otherwise required by applicable law. In addition, Company grants relayr and CEDES a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable, and transferable license to use, store, or otherwise process the Data to perform analytics and derive, compile and/or otherwise create aggregated or Anonymized data from such Data (collectively “Derived Data”). All right, title, and interest in and to Derived Data will be owned by relayr and / or CEDES, as applicable. For the avoidance of doubt and without limitation of the foregoing, relayr and CEDES may make Derived Data available to third parties. Company represents and warrants that it has obtained all rights, licenses, consents, permissions, and authorizations necessary to grant the rights to relayr and CEDES granted herein. Company will not permit the Services to collect or transmit any data, including Data and PII, which is subject to the rights of any Third Parties without first obtaining all required consent, permissions, agreements, authorizations, and rights in writing from such Third Parties.

SECTION 6 - PRICES, PAYMENTS, SHIPMENTS, AND TITLE.

6.1   Acceptance. Unless otherwise stated, CEDES’ or relayr’s offers and quotations are binding for 30 days from date of issue. The Agreement is established when CEDES or relayr has confirmed acceptance of Company’s purchase order. Cancellation of, or changes to, a purchase order may result in financial compensation by Company to CEDES or relayr. Company’s acceptance of this Agreement is limited to Company’s acceptance of the express terms and conditions contained herein in lieu of those in Company’s purchase order or other related documents (which CEDES and relayr expressly reject), unless otherwise noted and agreed to in writing.

6.2   Prices - Hardware. Unless otherwise noted on the order confirmation provided by CEDES or relayr, all prices quoted for Hardware are EXW-Minneapolis, MN (Incoterms 2020) and do not include any sales or use taxes, tariffs, transport costs, special packaging costs, insurance, assembly, installation, or application engineering support. All prices are subject to adjustment on account of specification, quantities, shipment arrangements or other terms and conditions that are not part of any original price quotation or standard price. CEDES and relayr reserve the right to modify quotations based on changes to any order. CEDES and relayr reserve the right to modify prices or the terms and conditions of sale at the conclusion of any specific purchase order or expired quotation for reasons including, but not limited to, raw material price changes, labor rate increases, or exchange rate changes.   

6.3   Payment.  CEDES or relayr will invoice Company and Company will pay the fees as set forth in the Order. Fees for the Service are based on the quantities set forth in the Order, regardless of actual usage, and are due and payable even if Company fails to install Hardware or use or access the Services. Unless otherwise noted and agreed to in writing, all payments for goods or services are due within 30 days from the date of invoice. CEDES and relayr individually reserves the right at any time to require full or partial payment in advance, or to revoke any credit previously extended if a reasonable history is not yet established or, in CEDES’ or relayr’s reasonable judgment, Company’s financial condition does not warrant proceeding on the terms specified.

6.4   Late Payments.  Any Fees or amounts not paid by the due date shall bear interest at the rate of 1.5% per month, or the highest rate allowed by law, whichever is less, from the date due until paid. If Company fails to pay any overdue amount within thirty (30) days of the date of notice from CEDES or relayr, relayr may suspend access to and use of the Subscription Services until any overdue amount is paid in full. If Company’s or a Customer’s actual usage of any aspect of the Services exceeds the entitlement specified in the Order, then Company may be invoiced for the overage in accordance with CEDES’ or relayr’s then current terms and rates. Company will reimburse CEDES or relayr for all reasonable and necessary out-of-pocket travel, lodging and incidental expenses incurred in the provision of Services or support only if prior approval thereof is obtained from Company.

6.5   Cancellation. Purchase orders accepted by CEDES or relayr cannot be cancelled, deferred, or goods returned except with the consent of the selling party (CEDES or relayr) and upon terms (including the payment to the selling party of a cancellation charge) that will indemnify CEDES and relayr against all loss including, but not limited to, the loss of profit.

6.6   Taxes.  Fees are exclusive of all excises, sales, use, transfer and other taxes (“Transactional Taxes”) and duties imposed by any federal, state, municipal or other governmental authority (“Tax Jurisdictions”), all of which taxes must be paid by the Company (other than with respect to taxes associated with CEDES or relayr’s net income). Company is responsible for obtaining and providing to the invoicing party (CEDES or relayr) any certificate of exemption or similar document required to exempt any service from sales, use or similar tax liability together with the signed Order Form. Company understands that CEDES or relayr may have Transactional Tax collection and remittance obligations in Tax Jurisdictions where it may conduct business, have employees or agents, perform services, or otherwise have a nexus (“Tax Obligations”). In circumstances where neither CEDES nor relayr has Tax Obligations, Company will self-assess, and timely remit Transactional Taxes associated with the Order. If any Transactional Taxes under the Order are not timely paid by Company, Company will reimburse the invoicing party (CEDES or relayr) for such taxes and any related interest, penalties, etc. upon any Tax Jurisdiction audit.

6.7   Shipping Schedule. Unless otherwise noted and agreed to in writing, CEDES or relayr provided delivery dates are only estimated. CEDES or relayr may delay delivery if: (a) delivery conditions cannot be met; (b) events of any sort occur that interfere with the normal processing and delivery of purchase orders to Company; including, but not limited to, force majeure; or (c) information or data necessary to process and deliver a purchase order is not provided to CEDES or relayr in a timely manner or is subsequently modified after estimated delivery dates have been established. Unless otherwise noted and agreed to in writing, a delay in delivery does not entitle Company to terminate the Order, nor does it give Company any claim for damages or lost profits. CEDES or relayr will ship Hardware in accordance with the shipping instructions and terms outlined in this Agreement.

6.8   Transfer of Title and Risk. Title transfer of purchased Hardware is according to EXW terms (Incoterms 2020). Unless otherwise noted and agreed to in writing, Company must determine and pay for transport from CEDES’ dock. Complaints regarding shipment damage are valid only within 14 days of receipt of delivery. Damage deemed attributable to CEDES may be compensated by CEDES at its discretion via replacement, repair, or credit. For the avoidance of doubt, title of Hardware transfers directly from CEDES to Company; at no point does relayr take title to the Hardware unless relayr resells CEDES hardware.

SECTION 7 - INTELLECTUAL PROPERTY.

All right, title, and interest in and to (a) the Services (including for the avoidance of doubt, Software, Deliverables, Materials, Interfaces, and any Mobile App(s)); (b) any intellectual property in the foregoing, as well as any intellectual property, ideas, know-how, or techniques developed, conceived, or reduced to practice by CEDES or relayr (including Software developments, packages, or combinations; analyses; marketing materials; alerting or notification methodologies; features; and installation methods); (c) any marketing materials provided by CEDES or relayr; and (d) any modifications, enhancements, and improvements to any of the foregoing, are and at all times shall remain the sole and exclusive property of CEDES and / or relayr (as applicable) and their licensors. Neither these Terms nor any Order or Customer Contract conveys any rights of ownership, and no rights (implied or otherwise) are granted other than as expressly set forth in these Terms. Nothing in any Order or these Terms shall be construed to restrict CEDES' or relayr’s rights in their intellectual property and to distribute their intellectual property, including Services, to other commercial and non-commercial entities.

SECTION 8 - TERMINATION; SUSPENSION.

8.1   By Company. Subject to its right to non-renew a Subscription Period as set forth in these Terms, Company may not cancel an Order or any Subscription Period early for convenience. Any prepaid Fees are non-refundable. Company may terminate an Order or Subscription Period early for cause only if CEDES or relayr materially breaches these Terms and fails to correct such breach within thirty (30) days after receiving written notice from Company describing the breach.

8.2   By CEDES or relayr.  CEDES or relayr may terminate an Order (or any portion thereof) at any time upon written notice to Company, or in its sole discretion suspend Company’s, Customers’ or Users’ access to the Services without liability, if any such person or entity materially breaches any provision of the Order or these Terms or if CEDES or relayr reasonably believes that continuing to provide the Services could result in business, reputational, or legal liability for CEDES or relayr Entities or otherwise harm relayr Entities or their end users. CEDES or relayr also may suspend such Services upon the occurrence of a Force Majeure Event.  Upon termination, Company must immediately cease (and ensure that Customers and Users cease) use of the Services. CEDES and / or relayr will use reasonable efforts to provide Company with advance notice of any suspension, provided that neither CEDES nor relayr will be liable for not doing so, particularly in situations where CEDES and / or relayr reasonably believe that delaying any suspension could harm CEDES’, relayr’s, or Company’s interests, the Services, or other customers.

8.3   Survival.  Sections 1.4 and 5 through 11 of these Terms will survive expiration or termination of the Order or Subscription Period, whichever is ending at the latest date.

SECTION 9 - CONFIDENTIALITY. 

9.1   Confidential Information.  “Confidential Information” means all written or oral information, disclosed by CEDES or relayr to Company (or vice versa), related to one of those parties or a third party, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably be known to be confidential.  Without limiting the foregoing, all Materials will be deemed to be the Confidential Information of CEDES and / or relayr, as applicable. Each party retains title to its Confidential Information. Confidential Information does not include any information that (a) was in the public domain at the time it was delivered or which thereafter passes into the public domain except by act of the receiving party or, in the case of Company as receiving party, any act of a Customer or User; (b) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (c) is already in the receiving party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (d) is independently developed by the receiving party; or (e) is approved for release or disclosure in writing by the disclosing party without restriction. 

9.2   Use.  The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure, or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may (a) use the disclosing party’s Confidential Information to fulfill the purposes of the Order and these Terms; and (b) disclose Confidential Information to its (and its affiliates’) employees, advisors, consultants, and agents on a need-to-know basis, provided that such party is bound by obligations of confidentiality substantially similar to those contained in these Terms. For the avoidance of doubt, CEDES’ and relayr’s use of Data in accordance with these Terms will be permitted despite, and not considered a breach of, the confidentiality provisions herein. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall, to the extent permissible, first have given written notice to the other party to allow such other party to seek a protective order; or (b) to establish a party’s rights under an Order or these Terms.

SECTION 10 - WARRANTIES; DISCLAIMERS; LIABILITY.

10.1   Authority.  Each party warrants that it has full power, and has obtained the required authority and consents, to enter into and perform its obligations under the Order and these Terms. 

10.2   Limitations.  The Services are intended to be highly reliable and available. However, the Services, including data transmission, monitoring, and alerting, and access thereto may be interrupted or malfunction including due to factors outside of CEDES' and relayr’s control, such as Hardware-related issues, improper Hardware installation; hindrance or obstruction of Hardware; human error or negligence; insufficient coverage; power outages; termination or interruption of internet, wi-fi or cellular service; communications networks; environmental conditions and interference, among others. The Services rely on or inter-operate with third-party products and services (including the installation of Hardware); these third-party products and services may not operate in a 100% reliable manner and are beyond CEDES and relayr’s control, but their operation may directly impact the use and reliability of the Services. CEDES and Relayr cannot and do not guarantee that the Services will be 100% available or that Alerts will be sent within any given time or at all. Company acknowledges these limitations and agrees that neither CEDES nor relayr is responsible or liable for any damages or losses related to the failure or delay of the Services, including any decision by Company as to whether, when, or what extent to service a particular elevator.

10.3   Limited Warranty – Services. CEDES and Relayr individually warrant that the Services will be provided in accordance with applicable laws and in a competent and professional manner by trained and qualified persons and in a workmanlike manner consistent with then-current industry standards. COMPANY'S SOLE REMEDY AND CEDES AND RELAYR’S ENTIRE LIABILITY FOR A BREACH OF THE FOREGOING WARRANTIES SHALL BE REPERFORMANCE BY CEDES AND / OR RELAYR OF THE APPLICABLE PORTION OF THE SERVICES.

10.4   Limited Warranty - Hardware. Unless otherwise noted and agreed to in writing, CEDES’ Hardware is warranted free from manufacturing and material defects for a period of 2 years from the date of shipment (“Term”). In the event that the date of shipment cannot be reasonably determined, CEDES reserves the right to substitute a period of 30 months from the date of manufacture (“Term”). Any Hardware purchased from CEDES or relayr that have manufacturing or material defects during the Term will be repaired or replaced at CEDES discretion. Claims by Company with regard to any alleged defect in the Hardware must be made with full particulars no later than 2 weeks after the end of the Term. Hardware shall not be returned without the consent of CEDES and a valid Return Material Authorization number. This warranty expressly set forth in this Section “Limited Warranty - Hardware” is CEDES’ sole warranty with respect to Hardware. NEITHER CEDES NOR RELAYR MAKE ANY OTHER HARDWARE-RELATED WARRANTY OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE THAT EXCEED THE AFOREMENTIONED OBLIGATION ARE HEREBY DISCLAIMED BY CEDES AND RELAYR AND EXCLUDED FROM THIS AGREEMENT. ANY ALTERATIONS, ADDITIONS, CHANGES OR IMPROPER USE OR CARE OF THE HARDWARE WILL VOID THE LIMITED WARRANTY. IN NO EVENT SHALL CEDES NOR RELAYR BE RESPONSIBLE FOR DAMAGES INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES, LIQUIDATED DAMAGES OR LOST PROFITS OF ANY NATURE WHATSOEVER.

10.5   Disclaimers and Limitation of Liability.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS AND CEDES AND RELAYR EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  NEITHER CEDES NOR RELAYR MAKE ANY WARRANTY OR GUARANTEE THAT THE SERVICES OR HARDWARE WILL MEET COMPANY’S, CUSTOMERS’ OR USERS’ REQUIREMENTS OR BE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, AND/OR ACCURATE BASIS. NO ADVICE OR INFORMATION PROVIDED WILL CREATE ANY ADDITIONAL WARRANTY, NOR SHALL IT BE CONSIDERED OR USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INSPECTION.   NOTWITHSTANDING ANYTHING ELSE IN AN ORDER OR THESE TERMS TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER CEDES NOR RELAYR SHALL BE LIABLE FOR THE HARDWARE, ANY FAILURE OF THE SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ANY LOSS OF PROFITS OR REVENUE; LOSS OF USE; LOSS OF OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS OR SERVICES; COST OF CAPITAL; GOVERNMENTAL AND REGULATORY SANCTIONS; OR CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES.  WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OR ANY ORDER, IN NO EVENT WILL CEDES’ NOR RELAYR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, AN ORDER, AND THESE TERMS EXCEED THE AMOUNT ACTUALLY PAID BY COMPANY PURSUANT TO AN ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

10.6   Indemnity. To the fullest extent permitted by law, Company agrees to indemnify, defend, protect, release and hold harmless CEDES and relayr and their respective parents and affiliate companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, agents, employees and insurers (collectively “Indemnitee”), from and against any and all claims, demands, losses, damages, causes of action, suits and liabilities of every kind, including all expenses of litigation, court costs, and attorney’s fees, for injury to or death of any person, or for loss or damage to any property (including without limitation, claims for pollution and environmental damage), and any civil or criminal fines or penalties, arising in favor of any third party or governmental agency or entity, or any Indemnitee and their employee’s representatives and beneficiaries, in connection with or arising out of, directly or indirectly, or in any way incidental to the performance of the Order, these Terms,  or the goods and services provided hereunder (collectively “Liabilities”). It is the intention of CEDES, relayr, and Company that such indemnity shall apply regardless of whether the Liabilities arise in whole or in part from the actual or alleged comparative, concurrent, active, passive or contributory negligence of Indemnitee. This indemnity includes Company’s agreement to pay all costs and expenses of defense, including without limitation attorney’s fees, incurred by any Indemnitee. This indemnity shall apply, without limitation, to any Liabilities imposed on any party indemnified hereunder as a result of any statute, rule, regulation or theory of strict liability including, but not limited to, strict products liability or strict statutory liability. The obligation of indemnification hereunder shall include, but not be limited to, the following: (I) liens by third persons against any Indemnitee and their property, because of labor, services, materials, or any other type of lien, furnished to Company, its assignees, contractors or subcontractors, in connection with the goods or services supplied by CEDES or relayr, (II) expenses, claims, fines and penalties or other enforcement charges, resulting from the failure of Company to abide by any and all valid and applicable laws, rules or regulations of any governmental or regulatory authority with jurisdiction. It is understood and agreed by Company that in the event any Indemnitee is made a defendant in any suit, action or proceeding for which an Indemnitee is indemnified pursuant to this Agreement, and Company fails or refuses to assume the defense thereof, that Indemnitee may compromise and settle or defend any such claim, and Company shall be bound and obligated to reimburse Indemnitee for the amount expended by Indemnitee in settling and compromising any such claim, or for the amount expended by Indemnitee in paying any judgment rendered therein, together with all reasonable attorneys’ fees incurred by Indemnitee for defense or settlement of such claim. Any judgment rendered against Indemnitee or amount expended by Indemnitee in compromising or settling such claim shall be conclusive as determining the amount for which Company is liable to reimburse such Indemnitee hereunder. All representations, warranties, indemnities and other undertakings of Company and all claims, rights and remedies of CEDES and relayr shall survive delivery, performance inspection, testing, acceptance, use and payment. It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligations under this Agreement, such legal limitations are made a part of the indemnification obligations and shall operate to amend the indemnification obligations to the minimum extent necessary to bring the provisions into conformity with the requirements of such limitations, and as so modified, the indemnification obligations shall continue in full force and effect.

SECTION 11 - MISCELLANEOUS.

11.1   Customers. Any separate written contract that Company has with a Customer (a “Customer Contract”) shall not make any commitment, representation, or warranty on behalf of CEDES nor relayr or in any way limit or attempt to limit any of CEDES’ or relayr’s rights or any restrictions set forth in these Terms or the EULA. Company must immediately notify relayr of any known or suspected breach of the EULA or other unauthorized use of the Subscription Service and to assist relayr in the enforcement of the EULA against any Customer.

11.2   Feedback.  CEDES and / or Relayr shall own any and all suggestions, ideas, enhancement requests, feedback, and any related intellectual property rights thereof provided by Company regarding the Hardware or Services, respectively (“Feedback”). By providing Feedback, Company represents and warrants it has the right to provide such Feedback in accordance with these Terms to CEDES and / or relayr.

11.3   Construction.  The headings of the Sections in these Terms are provided for convenience only and will not affect their construction or interpretation. All references to “Sections” refer to the corresponding Sections in these Terms.  Company represents that it has read and understood these Terms, and acknowledges and agrees that any construction of these Terms shall not be made against the drafter.  Unless expressly stated otherwise, in these Terms and any Order, “including” (and with correlative meaning “include”) means “including without limitation”, and “or” is used in the inclusive sense of “and/or”.

11.4   Waiver. No failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise of that right. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver.

11.5   Independent Contractors. The parties are acting solely as independent contractors, and neither party is an agent or partner of the other.

11.6   Force Majeure.  Neither CEDES nor Relayr shall be liable for any failure to perform due to Force Majeure Events provided that CEDES or relayr takes reasonable steps in its control to minimize the extent and duration of any such Force Majeure Event. “Force Majeure Events” are events outside the reasonable control of CEDES or relayr, including acts of God; earthquakes; wars; epidemics, pandemics; terrorism; communication failures; power failures; strikes or shortages of materials; adequate cellular coverage in an installed location; any computer, communications, internet service, cloud, or hosting facility failures or delays involving Hardware, software, power or other systems; and denial of service attacks.

11.7   Priority.  To the extent of any conflict between the provisions of these Terms, any Materials, or any Order, these Terms shall prevail, unless specifically amended in such other document.

11.8   Promotional Activities.  Company shall not reproduce or use the names, logos, service marks or trademarks of relayr or CEDES, and relayr and Cedes shall not reproduce or use the name, logo, service mark or trademark of Company in advertising, marketing material, or otherwise without the express written permission of such other party; provided that CEDES or relayr may use Company’s name and logo (a) as necessary to provide any implementation services included in an Order, and (b) on their websites and in their promotional materials to state that Company is a user of CEDES Hardware or relayr Services.

11.9   No Third-Party Beneficiaries. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of these Terms.

11.10   Arbitration; Specific Performance.  Any dispute or controversy arising out of, relating to, or concerning the Services or these Terms shall be resolved by arbitration, in English, in lieu of any court or jury trial, to be held in Minneapolis, Minnesota, in accordance with the rules for the resolution of commercial disputes of the American Arbitration Association then in effect.  The arbitrator may grant injunctions or other relief in such dispute or controversy.  The decision of the arbitrator shall be final, conclusive and binding on the parties. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. Notwithstanding the foregoing, because a breach or threatened breach of Sections 1.4, 7 and/or 9 of these Terms may cause irreparable harm to the non-breaching party which may not be measurable in monetary terms, such Sections may be specifically enforced by any court of competent jurisdiction and each party consents to the entry of such restraining orders and injunctions as may be necessary to prevent or stop a breach of such Sections and to carry out their terms.  This remedy shall not be exclusive and either party may have such other and further relief as may be permitted by law.

11.11   Notices. Any notice that is required to be given by the Order or Terms shall be in writing, shall be sent to relayr or CEDES (as required) at the addresses set forth below or to Company at the address set forth on the Order (which addresses may be changed by written notice to the other Party), and shall be deemed to have been delivered and received on (a) the date personally delivered; (b) five (5) business days after the date it is sent by domestic registered or certified mail, with postage and charges prepaid; or (c) on the first business day following dispatch if sent by a recognized next-day courier or delivery service. Notices to relayr shall be sent to: relayr, Inc., Attention: CEO, 311 South Wacker Drive, Suite 4950, Chicago, IL 60606; and notices to CEDES shall be sent to: CEDES Corporation of America, Attention: CEO, 7107 Ohms Lane, Minneapolis, MN 55417.

11.12   Applicable Law and Venue. This Agreement shall be governed by, and construed, interpreted and enforced in accordance with the substantive laws of the State of Minnesota, including, without limitation, the Minnesota Uniform Commercial Code, as amended from time to time, without regard to Conflict of Laws principles. CEDES, relayr and Company specifically disclaim the application of the United Nations Convention on the International Sale of Goods to any agreement. With respect to any suit, action or proceedings relating to this Agreement (the “Proceedings”), each party irrevocably submits to the exclusive jurisdiction of the courts of the State of Minnesota, and irrevocably waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, and waives the right to object, with respect to such Proceedings, that such court does not have jurisdiction over such party. Nothing in this agreement precludes either party from enforcing in any jurisdiction any judgment, order or award obtained in any such court.

Miscellaneous.  Neither party may assign an Order or these Terms without the written consent of the other party, provided that CEDES or relayr may assign an Order and Terms to an affiliate upon notice to Company. These Terms together with the Order(s) and the EULA constitute the entire agreement regarding the Hardware and Services between the parties and supersedes all prior understandings or agreements, whether oral or written, concerning the subject matter hereof.  If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain in full force and effect. An Order may be executed in one or more counterparts, each of which will be deemed to be an original copy of such Order and both of which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of and signatures to an Order by electronic or .pdf transmission shall constitute effective execution and delivery.

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