Last updated: November 3, 2022
These Terms of Service (“Agreement”) are entered into by and between Relay Hawk, Inc. (“Relay Hawk”) and the customer identified on the invoice for purchase of Relay Hawk Service (as defined below) (“Invoice”) that references and incorporates this Agreement by reference (“Customer”). This Agreement governs the Customer’s access and use of the Relay Hawk’s software-as-a-service platform and related applications (the “Relay Hawk Service” or “Services”) described on such Invoice. This Agreement is effective on the earlier of: (a) the date of the Invoice between the parties, or (b) Customer’s initial access to and use of the Relay Hawk Service (“Effective Date”).
Certain features of the Relay Hawk Service may be subject to additional guidelines, terms, or rules, which will be posted on Relay Hawk’s website https://www.relayhawk.com/legal and all such additional terms, guidelines and rules are incorporated by reference into this Agreement. Relay Hawk may modify this Agreement from time to time. The modified Agreement shall take effect upon earlier of Customer’s next purchase or the date of their next Invoice. If Customer has an existing subscription commitment for Relay Hawk Service, the modified Agreement will take effect on the date the Customer renews or extends such subscription. When changes are made, Relay Hawk will make a revised version of the Agreement available at the Relay Hawk website at https://www.relayhawk.com/legal/terms-of-service, and update the “Last Updated” date at the top of the Agreement.
1.1 Scope of Services. Relay Hawk provides information and recommendations regarding potential security issues based on information provided by Customer. However, Relay Hawk may not detect all security issues and Customer must use its own judgment as to whether to implement such recommendations, and the implementation (and decision to do so) is solely the responsibility of Customer.
2.1 Access. Subject to the terms and conditions of this Agreement and on or as soon as reasonably practicable after the Effective Date, Relay Hawk will allow Customer and its authorized employees and independent contractors (“Authorized User”) to access the Relay Hawk Service. Customer will prevent unauthorized access to, or use of, the Relay Hawk Service, and notify Relay Hawk promptly of any such unauthorized use known to Customer. Customer is responsible for managing its Authorized Users’ access to the Relay Hawk Service, including by immediately notifying the Relay Hawk if someone’s status as an Authorized User has ceased or otherwise should be revoked.
2.2 License Grant. Subject to the terms and conditions of this Agreement, Relay Hawk grants to Customer a non-exclusive, non-transferable (except as permitted under Section 10.4) license during the Term (as defined below) to access and use the Relay Hawk Service (and any reports provided in connection therewith), in all instances solely for Customer’s internal business purposes. Customer may only permit Authorized Users to access and use the features and functions of the Relay Hawk Service under this Agreement. All rights not expressly granted to Customer in this Agreement are reserved by Relay Hawk.
2.3 Ownership. The Relay Hawk Service, together with any related software, technology, algorithms, processes, designs, user interfaces and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Relay Hawk.
2.4 Restrictions. Customer will not, and will not permit any other party to: (a) allow any third party to access the Relay Hawk Service; (b) modify, adapt, alter or translate the Relay Hawk Service; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Relay Hawk Service for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Relay Hawk Service, except as permitted by law; (e) interfere in any manner with the operation of the Relay Hawk Service; (f) modify, copy or make derivative works based on any part of the Relay Hawk Service; (g) access or use the Relay Hawk Service to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Relay Hawk Service through any unapproved interface; or (i) otherwise use the Relay Hawk Service in any manner inconsistent with applicable law.
2.5 Third Party Content. The Relay Hawk Service may include content or information pulled directly from or derived from third-party sources, including websites, social media platforms, news sources and advertisements that are not owned, created by or under the control of the Relay Hawk (collectively, “Third Party Content”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that the Relay Hawk does not evaluate or vet the Third Party Content for accuracy. Nor does Relay Hawk assume any other responsibility for the Third Party Content or Customer’s use thereof. Customer should use all Third Party Content at its own risk and discretion. Customer expressly agrees to make all necessary or appropriate investigations before using or relying on such Third Party Content to enter into any transactions or reach any decisions.
3.1 Customer Responsibility. Any data and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use in connection with the Services, including without limitation any such information that relates to an identified or identifiable individual (together with any information that constitutes “personal information,” “personal data,” “personally identifiable information,” or similar term under applicable law, “Personal Information”), is the exclusive property of Customer (such information, including any Personal Information therein, “Customer Information”). Customer is solely responsible for the accuracy, quality and legality of Customer Information. For the avoidance of doubt, it is the responsibility of the Customer to disclose all systems on which the Relay Hawk Service will conduct security analysis. Customer will provide all required notices and obtain all consents and permissions needed to provide or make available to Relay Hawk Customer Information and for Relay Hawk to use and otherwise process the Customer Information to provide the Services and as otherwise contemplated by this Agreement. Customer and its Authorized Users will have access to the Customer Information and will be responsible for all changes to or deletions of the Customer Information and the security of all passwords and other access codes required in order to access the Relay Hawk Service. Customer has the responsibility to (i) employ appropriate security measures to protect the Customer Information and (ii) comply with all applicable laws in connection with the use of the Services and collection, use, disclosure and other processing of Customer Information. Customer acknowledges that, to the extent that Customer Information is integrated with third party software offerings, the security of such software systems is the responsibility of Customer or such third party vendor. Relay Hawk is solely responsible for its own strategic, operational and other business and legal decisions with regard to its use of the services, and Relay Hawk shall bear no responsibility or liability for any actions or inactions by Customer or any third party acting on its behalf.
3.2 Relay Hawk Responsibility. Relay Hawk shall comply with all applicable laws in connection with the provision of the Services, including its processing of any Customer Information. Relay Hawk will maintain reasonable physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of the Customer Information.
3.3 DPA. The Data Processing Addendum (“DPA”) appended hereto as Exhibit A shall apply and shall be incorporated into and form part of this Agreement, if and to the extent Relay Hawk processes any Customer Personal Data (as defined in the DPA) on Customer’s behalf.
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Relay Hawk under this Agreement, Relay Hawk will be paid the fees as set forth in the Invoice (“Fees”). Except as otherwise agreed upon, payment obligations are non-cancellable and all amounts paid are nonrefundable except as otherwise agreed by Relay Hawk.
4.2 Payments. Except as otherwise provided in the Invoice, all Fees are billed at the beginning of the Term, and due and payable within thirty (30) days of the date of the invoice. Relay Hawk reserves the right (in addition to any other rights or remedies Relay Hawk may have) to discontinue the Relay Hawk Service and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
5.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Information will be considered Confidential Information of Customer.
5.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Relay Hawk). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
5.3 Exceptions. Except with respect to Personal Information, the confidentiality obligations set forth in Sections 5.1 and 5.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
5.4 Feedback & Analysis. Both during and after the Term, Relay Hawk may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer, including Authorized Users, and (b) collect, use, and analyze data, including Customer Information, provided or made available to Relay Hawk or otherwise arising during the use of the Services, in each case (a) and (b), in order to improve and enhance the Relay Hawk Service and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Relay Hawk, and solely to the extent such data is not shared with or disclosed to third parties in a manner that identifies Customer or any individual person.
Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Invoice remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). The term of an Invoice will begin on the Effective Date of the Invoice and continue in full force and effect for the period set forth in the Invoice, unless earlier terminated in accordance with the Agreement. Thereafter, the Invoice will automatically renew for additional terms of the same duration each unless either party gives written notice of non-renewal to the other party at least fifteen (15) days prior to the expiration of the then-current term, provided if the term of an Invoice is longer than thirty (30) days, then either party shall give written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
Effect of Termination. Upon termination or expiration of this Agreement for any reason, Customer’s use of and rights to the Services and Relay Hawk Service shall cease and any amounts owed to Relay Hawk under this Agreement will become immediately due and payable. Sections 2.3, 2.4, 2.5, 4, 5, 6.3, 7, 8, 9, and 10 will survive expiration or termination of this Agreement.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND RELAY HAWK SOLUTION ARE PROVIDED “AS IS,” AND RELAY HAWK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. RELAY HAWK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES RELAY HAWK GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICE. FOR THE AVOIDANCE OF DOUBT, RELAY HAWK DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES WILL IDENTIFY, LOCATE, DETECT, DISCOVER, PREVENT OR PROTECT CUSTOMER AGAINST ALL THREATS, VULNERABILITIES, MALWARE, VIRUSES, WORMS, AND OTHER MALICIOUS SOFTWARE NOR PREVENT OR PROTECT CUSTOMER AGAINST DATA BREACHES OR OTHER SECURITY-RELATED INCIDENTS, ISSUES OR COMPROMISES, INCLUDING (WITHOUT LIMITATION) NETWORK OR SYSTEMS DOWNTIME, DELAYS OR DISRUPTIONS, AND CUSTOMER WILL NOT HOLD RELAY HAWK RESPONSIBLE ANY OF THE FOREGOING OR FOR THE CONSEQUENCES THEREOF. RELAY HAWK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
8.1 Types of Damages. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT OR ANY LIABILITIES ARISING THEREUNDER WILL NOT EXCEED THE LESSER OF FEES PAID TO RELAY HAWK IN CONNECTION WITH THE SERVICES DURING THE (A) INVOICE TERM OR (B) TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RELAY HAWK HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9.1 By Relay Hawk. Relay Hawk will defend at its expense any claim, action or suit brought against Customer and will pay any settlement Relay Hawk makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Relay Hawk Service infringes such third party’s patents, copyrights or trade secret rights under applicable laws within the United States of America. Notwithstanding the foregoing, Relay Hawk will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Service not in accordance with this Agreement or (ii) any use of the Service in combination with other products, services, software or data not supplied by Relay Hawk.
9.2 By Customer. Customer will defend at its expense any claim, action or suit brought against Relay Hawk (including reimbursement of Relay Hawk’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit arising out of or relating to any Customer Information or any improper or unauthorized use of the Service.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10.2 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.3 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.4 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
10.5 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.
10.6 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.7 Independent Contractors. Customer’s relationship to Relay Hawk is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Relay Hawk.
10.8 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Relay Hawk, by emailing email@example.com and if to Customer by emailing the Customer Point of Contact email address listed in the Invoice, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed in Invoice by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.
10.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.