Terms of Service

Please read these Terms of Service (”TOS”) carefully. They constitute a legally binding agreement and contain terms limiting Relay’s liability to you, exclusions of certain warranties, and terms relating to access to and use of the Relay Suite provided by Relay.

BY SIGNING OUR SERVICE AGREEMENT AND/OR USING THE RELAY SUITE, YOU AGREE TO BE BOUND BY THESE TOS. If you are using the Relay Suite on behalf of a company, you must have the authority to bind that company to these TOS. If you are not willing to be bound by these TOS, you should not sign the Service Agreement and may not use the Services.

We reserve the right to change or modify any of these TOS at any time, in our sole discretion. Acceptance of such changes or modifications is constituted by either: (i) continued use of the Relay Suite thirty (30) days after the modified TOS have been posted to the Relay website or (ii) your indication of agreement to the updated terms, via click-through or otherwise.

1. PARTIES AND DEFINITIONS.

1.1 Parties. The Services are made available pursuant to this TOS by Relay Robotics, Inc., a Delaware corporation, (“Relay” or Company”) with its business office primarily located at 271 E. Hacienda Avenue, Campbell, CA 95008. You and/or your company will be referred to as “Customer” or “you” and are bound by the terms and conditions of this TOS as further set forth in the Service Agreement effective between Relay and you.

1.2 Definitions. Definitions for capitalized terms used in these TOS and not otherwise defined in the text shall be as follows:

“Actual In-Service Date” is the date that the Relay Suite is operational and ready for use by Customer at the Location, as confirmed in the In-Service Confirmation Notice provided by Relay after completion of the installation process.

“Affiliate” means an entity that a party directly or indirectly controls, is controlled by, or is under common control with, during the Term.

“Agreement” means these TOS, executed Service Agreement and any Orders, and any attached Exhibits, as one agreement.

“Brand” means the logos, trademarks, services marks, and other identifying marks associated with the Customer or Relay, as applicable.

“Cancellation Fee” means the fee payable to Relay under certain cancellation conditions defined in the Service Agreement or the Order.

“Documentation” means descriptions of the Relay Suite and its use such as training materials, user manuals, customer support web sites.

“Effective Date” means the effective date set forth in the Service Agreement.

“In-Service Confirmation Notice” means a writing that is substantially similar to the form attached as Exhibit B to the Service Agreement.

“Intellectual Property Rights” or “IPR” means copyright, trademark, patent, trade secret, or other intellectual property right.

“Location” means each individual property and premises identified on an Order where the Relay Suite is authorized to be used.

“MNDA” means the mutual non-disclosure agreement signed by the parties either prior to or following the Service Agreement or Order.

“Order” means a separately executed Relay Order that references these TOS and the Service Agreement in the form attached thereto as Exhibit A.

“Personal Data” means any information about a person that: (a) can be used to identify, contact or locate that person; (b) is defined as “personal information” by applicable laws relating to the collection, use, storage and/or disclosure of information about an identifiable individual; and (c) any content provided by the person to the Customer in the course of providing them the Service (e.g., images, photos, video and other content related to the person captured for Robot operation & security purposes).

“Robot” means Relay’s indoor autonomous delivery robot, consisting of its hardware, software, and related materials.

“Relay Suite” means each Robot and accompanying hardware, software, user interfaces, portals and other technology associated with each Robot, provided by Relay per the Agreement.

“Service Data” means any data that Relay collects during performance of Services and any other data that Customer elects to give or make available to Relay.

“Service Level Agreement” or “SLA” means the agreement attached hereto as Exhibit A and incorporated herein.

“Services” means collectively, the Relay Suite and Support.

“Staff” means Customer personnel, employees, contractors and agents.

“Support” means the support services described in Exhibit A to this TOS.

“Term” is defined in Section 7.1.

“Use Period” means the period of time for Customer’s use or license of each Relay Suite, as stated in each Order.

2. PRODUCT & SERVICE LICENSES.

2.1 License to Relay Suite. Subject to the terms of this Agreement, and during the Use Period, Customer may use the Relay Suite at Locations in compliance with the Documentation.

2.2 License from Customer. During the Term and Use Period, Customer grants Relay a license to access the Locations and its infrastructure, for the purpose of providing the Services.

3. SUPPORT.

3.1 Support. During the Use Period for each applicable Relay Suite, Relay will provide the Support described in the Service Level Agreement (the “Support”). The rights and obligations of the parties in the Service Level Agreement are the exclusive remedies of Customer for the Support provided for the Relay Suite.

3.2 Upgrades. Relay may, from time to time, release updates to the existing Services and/or add new or different features and functionality (“Updates”). Provided Customer is current with fees and is not in otherwise in material breach of this Agreement, Customer will be granted access to such Updates, including Updates related to additional Services to which it has subscribed. Optional or new features and functions may be subject to additional fees at Relay’s sole discretion. Relay may also modify or remove certain features from time to time provided that the core functionality of the Service will not be materially diminished.

3.3 Service Modification. Relay reserves the right to modify or suspend all or part of the Services at any time if Relay reasonably believes it is necessary to: (a) comply with applicable law or industry regulation, or requirements of any self-regulatory program; (b) to avoid or limit liability; (c) prevent errors or any other harm by the Services; or (d) respond to Customer’s breach of this Agreement (e.g., failure to pay fees or the Services).

4. CUSTOMER OBLIGATIONS.

4.1 Insurance. Customer must maintain appropriate and adequate insurance against loss, theft, damage, or destruction of the Robot and, upon Relay’s request, provide a copy of the certificate of insurance listing Relay as an additional insured.

4.2 Loss and Damage. Customer is solely responsible for physical and other loss or damage to the Relay Suite while at the Locations, excluding normal wear and tear, up to the commercial value of the Relay Suite.

4.3 Customers and Staff. Customer is responsible for all aspects of dealing with Customer’s customer, visitors and Staff, and handling all related inquiries.

4.4 Restrictions. Relay reserves all intellectual property and other rights relating to the Robot and Relay Suite (including any marks and logos associated with Relay) not expressly granted to Customer. Customer may not (a) copy, distribute, rent, lease, lend, sublicense, transfer or make the Services available to any third party, (b) decompile, reverse engineer, or disassemble the Services, (c) create derivative works based on the Services; or (d) modify, remove, or obscure any proprietary notices or legends on the Services.

4.5 Non-Exclusive. The Services are provided on a nonexclusive basis and Customer may use similar services provided by third parties. Customer may not, and will not allow any third party to, create or attempt to create a substitute or similar service through use of, or access to, any of the Services or Relay proprietary information.

4.6 Custom Graphics. Customizing external graphics of the Robot is allowable provided the proposed graphic style and positioning meet the standards defined in the “Relay Custom Graphics” guidelines.

4.7 Nicknames. Customer may create a custom nickname for the Robot. Customer is responsible for any liability resulting from this custom naming.

4.8 Marketing & Public Relations. Customer and Relay may publicize and market Customer’s use of the Relay Suite, including without limitation, use of the other party’s name and Brand in its marketing, sales, branding & public relations efforts, provided each party agrees in writing to such use.

5. DATA.

5.1 Service Data. Relay may collect and receive Service Data in the course of providing Customer the Services. Customer agrees that so long as Relay aggregates the Service Data, and uses it in a manner that does not specifically identify Customer or Customer’s customers, Relay may: (a) use such information to provide Customer the Services and fulfill Relay’s obligations to Customer; (b) disclose such information as may be required by law or legal process; (c) use and disclose such information when it is aggregated with similar information relating to other Relay customers and does not specifically identify Customer or Customer’s customers; and (d) use such information to generally improve Relay’s Services.

5.2 Personal Data. As between the parties, Customer shall own all Personal Data that Customer elects to share with Relay. If Customer delivers or gives access to Personal Data, Relay will use the Personal Data to provide the Services, and not for any other purpose except with Customer’s prior written permission. The parties will cooperate in complying with any requests of governmental agencies to comply with data protection laws. Relay shall cause the Personal Data held by Relay to be destroyed, deleted, or rendered inaccessible from Relay records within a reasonable amount of time after termination of this Agreement.

5.3 No Sensitive Data. Customer will not provide, and Relay will not solicit or try to collect, any highly sensitive personal information such as personal, financial, health or other sensitive data of Customer’s customers or Staff.

6. FEES.

6.1 Payment. Customer shall pay to Relay all fees, expenses and other charges as set forth in the Service Agreement and Orders.

6.2 Taxes; Shipping; Costs. Customer is solely responsible for paying: (a) any domestic and foreign taxes, VAT, duties, charges, or withholding, for Customer’s use of the Relay Suite, and (b) shipping costs, import/export fees, customs fees and clearances, and any other fees associated with the Relay Suite being used and shipped internationally.

7. TERM; TERMINATION.

7.1 Term. The Term of this Agreement starts on the first date of the Term and continues until the Expiration Date as set forth in the Order or as terminated in compliance with this Section 7. If the Use Period continues after the Term, the Term shall be extended to the last day of the Use Period, at which point it will expire. A party may terminate this Agreement for cause in the event the other party: (a) breaches a material term of this Agreement and fails to remedy such breach, where capable of remedy, within thirty (30) days of notice from the non-breaching party; or (b) becomes bankrupt, makes any arrangement with or for the benefit of its creditors, enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bona fide reorganization), has a receiver or manager appointed of the whole or substantially the whole of its undertakings, or any equivalent procedure under any applicable law, or if the other party becomes unable to pay its debts as they fall due.

7.2 Effect of Termination. After termination or expiration of this Agreement, Customer remains liable for any amounts owed to Relay for any outstanding unpaid invoices or fees. Any provision of this Agreement which by its terms reasonably should survive expiration or earlier termination of this Agreement, shall so survive, including without limitation Sections 4, 5, 6, 8, and 10-14. After termination, cancellation, or expiration of this Agreement, each party will wind down and cease any going forward publicity activities; provided that the licenses granted to Relay will survive perpetually for materials that have been incorporated into physical and archival materials (such as pamphlets, blog entries, promo videos and manuals).

7.3 Property Retrieval. In the case of cancellation or termination of this Agreement or Orders, Relay will retrieve the Relay Suite at Relay’s own expense, and Customer will cooperate with Relay to ensure its safe removal. If Relay determines that there is damage or loss to the Relay Suite (aside from normal wear and tear or equipment malfunction), Relay will invoice Customer for the actual cost of repair or replacement.

8. OWNERSHIP.

Relay retains all right, title and interest in the Services (and its IPR) and any materials Relay creates, develops, or provides in connection with this Agreement. Customer retains all right, title and interest in its Brand (and its IPR), and any materials Customer creates or develops in connection with this Agreement. Customer assigns to Relay all right, title and interest to any feedback, commentary, or suggestions related to the Services that Customer provides to Relay.

9. REPRESENTATIONS AND WARRANTIES.

9.1 General. Each party represents, warrants and covenants to the other party that: (a) it has the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.

9.2 IPR. Relay represents that of the date hereof, that it has no actual knowledge of any pending or current claims, actions, or proceedings involving a claim that the Services or any related documentation infringes or violates any IPR of a third party; and warrants that, to the best of its knowledge, Relay has all rights necessary for the execution of this Agreement and the license of the Services hereunder and that the Services, deliverables pursuant thereto, and/or other materials provided by or on behalf of Relay, and Customer’s use thereof, do not infringe or violate any IPR of a third party.

9.3 Virus Remedy. Relay shall use commercially available industry standard software to detect and prevent a computer virus, worm, or other such computer code that might be used to access, modify, delete, damage, or disable the Services (“Virus”). Relay shall promptly notify Customer if a Virus is found to have been introduced into Customer’s systems by the Services, Relay shall use reasonable efforts, at no additional charge, to assist Customer in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist Customer to the same extent to mitigate and restore such losses. In no event shall Relay be liable for any damages, losses or claims arising from loss of data or other operational issues caused by the Relay Suite.

10. DISCLAIMERS.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. RELAY AND ITS AFFILIATES, SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE SERVICES OR THEIR FEATURES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THEY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. RELAY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES.

11. INDEMNIFICATION.

11.1 Relay. Relay agrees to indemnify and defend Customer and their respective Affiliates, directors, officers and employees from and against any liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party: (a) to the extent alleging that the technology under Relay’s control underlying the Services, or any portion thereof, infringes any third party United States IPR; (b) attributable to the alleged or actual breach of Relay’s representations and warranties in Section 10; or (c) so long as the Customer is using the Relay Suite in accordance with the Documentation, for any physical damage to real or tangible property and bodily injuries or death to any persons to the extent caused by the malfunctioning of the Relay Suite (excluding to the extent resulting from the negligence or willful misconduct of Customer, its Staff or customers).

11.2 Customer. Customer agrees to indemnify and defend Relay and its Affiliates, and their respective directors, officers and employees from and against any liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent attributable to: (a) Customer’s alleged or actual breach of Section 9; (b) any physical damage to real or tangible property and bodily injuries or death to any persons to the extent caused by or resulting from the negligence or willful misconduct of Customer, its Staff or customers; or (c) Customer’s failure to secure all rights, title, and interest necessary to grant the licenses under Section 2.

11.3 Exclusions. Relay’s indemnity liability excludes: (a) any infringement claims arising out of the combination of the Service, or use, with other hardware, software or other items not provided by Relay to the extent such infringement would not have occurred absent such combination or use; (b) any unauthorized modification or misuse of the Services; (c) any claims arising out of Relay’s compliance with Customer’s unique specifications; or (d) any claims arising out of any open source software in the Relay Suite. In the event of a claim, demand, action or proceeding that the technology underlying the Services infringes or misappropriates any third party IPR, or if in Relay’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Relay shall have the right, at Relay’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Services, or (ii) modify or replace the affected portion of the Services to eliminate the infringement or misappropriation. If Relay is unable to achieve the foregoing (i) or (ii) in a commercially reasonable manner, either party has the right to immediately terminate this Agreement upon written notice to the other party, without liability. This Section 12 states Customer’s sole remedy and Relay’s exclusive liability with respect to any infringement or misappropriation of any IPR related to the Services.

12. LIMITATION OF LIABILITY.

EXCEPT FOR LIABILITIES ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S BREACH OF THE LICENSES GRANTED TO CUSTOMER, OR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, (A) NEITHER PARTY IS LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT, OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF CUSTOMER’S BREACH OF THE LICENSES GRANTED TO CUSTOMER, EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN OR A PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE TOTAL FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE 18 MONTHS BEFORE THE DATE THE CLAIM FIRST AROSE.

13. CONFIDENTIALITY;

EQUITABLE REMEDIES. The parties agree that disclosure of confidential or proprietary information or both hereunder, including the existence and content of this Agreement and any information provided under this Agreement, is governed by the MNDA. Notwithstanding anything to the contrary herein, the parties agree that a material breach of the Agreement adversely affecting Relay’s IPR or Relay’s rights in its confidential information may cause irreparable injury to Relay for which monetary damages would not be an adequate remedy and that Relay shall be entitled to apply for equitable relief, without the posting of a bond, in addition to any remedies it may have hereunder or at law.

14. MISCELLANEOUS.

14.1 Notices. All notices must be in writing and are deemed received if by registered mail on the date of receipt, internationally recognized carrier on date of receipt, by email on the date of receipt if delivery is confirmed or hand delivered to the address in the signature line below.

14.2 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement to an Affiliate or in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction, with notice to the other party. This Agreement inures to the benefit of and is binding on the parties’ permitted assignees, transferees and successors.

14.3 Contractors. Each party may use contractors to perform its obligations under this Agreement if the contractors are subject to terms as protective as those under this Agreement. Each party is responsible to the other for its contractors’ acts and omissions.

14.4 Governing Law; Venue. This Agreement is governed by the laws of the State of California, without reference to conflicts of laws principles. The federal and state courts in Santa Clara County, California have exclusive jurisdiction and venue under this Agreement.

14.5 Laws. Each party will comply with all applicable U.S. and foreign government laws and regulations related to its obligations and rights hereunder.

14.6 Relationship. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. There are no third-party beneficiaries to this Agreement.

14.7 Force Majeure. Except for payment obligations, a party’s performance of an obligation under this Agreement shall be excused to the extent that it is prevented or delayed due to causes beyond its reasonable control, such as internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God, pandemic, governmental action, acts by hackers or other malicious third parties (collectively, “Force Majeure”).

14.8 Interpretation. Headings are for reference purposes only and will not be used to interpret this Agreement. This Agreement will not be construed against either party as the drafter. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

14.9 Entire Agreement. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Any amendment to this Agreement must be in a writing signed by both parties. This Agreement may be executed in counterparts, including fax, PDF and other electronic copies, which taken together will constitute one instrument. A waiver of a term of this Agreement is only valid if given in writing and will only apply to the specific occurrence waived. Failure to enforce any provision will not constitute a waiver.

Exhibit A

Service Level Agreement

A. General Overview of Support

Relay Robotics provides 24/7 remote monitoring of the Relay Suite.

Except as described in an Order, Relay Robotics will provide Relay Suite maintenance, including onsite support as needed to maintain the Relay in good operating condition during the Use Period.

Request Support by having an authorized Staff member email Relay Robotics at: support@Relayrobotics.com or call 1-408-809-5600, then press “1”and leave complete details regarding the request.

Relay Robotics will make commercially reasonable efforts to provide the Services on a continuous basis; but availability is not guaranteed and may be disrupted, unavailable or inoperable, including, without limitation, due to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs, which Relay Robotics may undertake from time to time; or (iii) a Force Majeure event.

Customer will comply with any reasonable requests in connection with the Relay Suite, such as performing requested tasks. Relay Robotics may make onsite visits as reasonably required to provide Support, in which case Relay Robotics will provide reasonable advance notice unless Relay Robotics must respond immediately to an urgent Service matter.

B. Support Response

Tier 1. Call Center 24/7: After the In-Service Date, Customer may request support directly from Relay Robotics at its designated 24/7 Relay Call Center via phone or email at the contact coordinates listed above. Relay Robotics will use commercially reasonable efforts to respond within 60 minutes of receiving the email request. Upon receipt of the support request (“Notification”), Relay Robotics will create a support ticket and start troubleshooting remotely.

Tier 2. If the Call Center is unable to resolve the support request within 4 business hours, the request will be escalated to Tier 2 support to investigate the problem with Relay Robotics’ operations support team. Once received during Business Hours, Tier 2 support will propose a remediation plan within 1 business day. The support center may ask the customer to help, which may include asking Customer to turn the Robot on & off, cleaning the sensors, etc. For clarity, “Business Days and Business Hours” are 8am – 6pm PT, Monday thru Friday, excluding US Holidays.

Tier 3. In the event that Relay Robotics’ Tier 2 support is unable to determine the cause of the problem, the problem will be escalated to Relay Robotics’ Tier 3 support for engineering level investigation. Relay Robotics will communicate a remediation plan to Customer within 3 business days after Notification.

Exclusions. For problems that result from an issue caused by or resulting from the Customer’s network or premises (e.g., an elevator out of service), the time periods above will be extended until Customer has repaired the issue. Relay Robotics takes no responsibility for repairing or resolving Customer’s issues with a network or premises, and Customer agrees that the Customer Support obligations in this Exhibit will resume once Customer resolves such issues.

C. Further Conditions.

If a remediation plan is not communicated to Customer within ten (10) business days after Notification, and such plan is not delivered within two (2) business days after written notice to Relay Robotics, Customer may elect to terminate this Agreement without further payment obligation.

Beginning one day after the date a Notification is escalated to Relay Robotics’ Tier 3 support and continuing until the problem indicated in the Notification has been remediated, repaired or solved, Customer shall be entitled to a day-for-day credit of free usage for each full day of inoperability. Such credits will be applied by adding the corresponding number of days to the end of the Term of the Agreement. Except as set forth in this SLA, Customer shall have no other remedies for repair, support or damages arising from any inability or failure to provide support to Customer or resolve the problem or the operational issues with the Relay Suite.