These Terms and Conditions constitute an agreement ("Agreement") between you ("you",
"your", "user" or "Customer") and Rely Software, LLC ("Rely", "us", "we" or "our")
for virtual point of sale, business management and marketing services and any related
products or services ("Services"). This Agreement governs both the Services and
any assigned account ("Account") used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification,
to be bound by, and to comply with, the terms of this Agreement: (i) your initialization
or registration of the Services, either on the telephone or through the Rely Software
website (relypos.com) or through any of the Rely Software sub domains (e.g. relysoftware.com)
(the Rely website and sub domains are collectively referred to herein as, the "Site");
or (ii) through the use of your Account and PIN (defined below); or (iii) your use
of the Site.
1. Ownership. All Materials (defined below), Services, Accounts
and content, including but not limited to policy information, text, software, music,
sound, photographs, video, graphics, the arrangement of text and images, commercially
produced information, and other material contained on the Site or through the Services
("Content"), are provided by Rely Software unless indicated otherwise. All intellectual
property rights in the Materials, Content, Services and Accounts (including copyrights,
trademarks, service marks, trade secrets and patents) are the property of Rely Software.
Rely Software retains all copyrights in the individual pages, and their components,
and collective works available at the Site.
The Materials, Content, Services and Accounts are copyrighted and are protected
by federal and worldwide copyright laws and treaty provisions. They may not be copied,
reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed
in any way without Rely Software's prior written permission.
Trademarks and copyrights including Rely Software and the Rely Software logo are
the property of Rely Software. All other names and trademarks are the property of
their respective holders.
2. Single Copy License. You may download one copy of the materials
(the "Materials") and/or Content found on this Site for use with the Services and/or
Accounts. This is a license, not a transfer of title, and is subject to the following
restrictions: unless you receive prior written consent from us and unless you receive
any required regulatory approvals, you may not: (a) modify the Materials, Content,
Services or Accounts or use them for any commercial purpose or any public display,
performance, sale or rental; (b) decompile, reverse engineer, or disassemble software,
Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary
notices from the Materials, Content, Services or Accounts; (d) unless otherwise
provided herein, transfer or resell the Materials, Content, Services or your Account
to another person. You agree to prevent any unauthorized copying of the Materials,
Content, Services and Accounts.
3. Term. The term of this Agreement begins on the date we activate
Services for your Account. This Agreement will continue from month to month until
terminated by either party pursuant to the terms hereof.
4. Order Acceptance Policy. Your submission of your order on the
Site or receipt of an email confirmation signifies acceptance by Rely Software of
your order and the provision of your Account. Rely Software may verify orders to
prevent fraud. Should Rely Software suspect the placement of a fraudulent order
(even after you have received an email confirmation of acceptance of your order
and the provision of your Account), Rely Software may contact you by email or telephone
regarding such suspected fraudulent order and, in sole discretion, interrupt, restrict
or terminate your Account without notice to you by Rely Software.
5. Use of Services and Account. You represent and warrant that
you are at least 18 years of age or the applicable state age of majority and that
you possess the legal right and ability to enter into this Agreement. You agree
not to use the Materials, Content, Services and your Account for any unlawful or
abusive purpose or in any way which interferes with our ability to provide Services
to our customers, or damages our property.
Certain pages on the Site or the access to the Services and/or your Account may
be accessed only by use of a Password and/or Personal Identification Number ("PIN").
You are solely responsible for all uses of the Site and/or the Services and/or your
Account with your Password and/or PIN. You should change your Password and/or (PIN)
once each month. If your Services or Accounts are fraudulently used, you agree to
immediately notify us of such unauthorized use. We have the right to interrupt,
restrict or terminate Services to your Account, without notice to you, if we suspect
fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation
and to use any fraud prevention measures we prescribe.
6. Charges. You are responsible for paying all charges to your
Account for Services, including but not limited to, regulatory and government fees,
and for all taxes and surcharges, including regulatory recovery fees, imposed on
you or us as a result of your use of the Services.
Each RELY Software plan, for both internet based and PC based software, has (i)
a flat monthly service fee (this service fee, which is posted on the Site, is the
basic charge associated with your Service. This fee includes the service charges
defined by your plan.
Rely Software may charge initiation fees and additional fees for optional features,
add-ons, and other added products and Services. Such fees are posted on the Site.
Rely Software reserves the right to change its pricing and/or billing practices
in its sole discretion. Rely Software may introduce new products and Services at
special introductory pricing. Introductory pricing may change at discretion by Rely
Software. Service plans are charged once a month. We reserve the right to suspend
service if a past due balance remains for over 30 days.
Customers with past due balance on previous or multiple accounts will be charged
the full balance due upon opening a new account or updating their credit or debit
card on file.
7. Billing and Payment. Any applicable initiation fees and monthly
recurring charges are billed in advance of the month of usage. You may also be billed
for additional services and/or hardware purchases either on the month following
such services rendered and or hardware sold. Services are billed in arrears.
Unless otherwise agreed to in writing, you are to pay for all charges by credit
or debit card. Credit or debit cards will automatically be billed monthly or upon
reaching the Threshold Amount, whichever comes first, and no additional notice or
consent will be required for billings to that credit or debit card or account. You
will advise us of any changes to your credit or debit card account, such as account
number, billing address, or expiration date changes. Billing cycle end dates may
change from time to time. When a billing cycle covers less than or more than a full
month, we may make reasonable adjustments and pro-rations. Time is of the essence
for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per
annum or (b) the highest amount allowed by law for any amounts unpaid as of the
due date. Acceptance of late or partial payments (even if marked "Paid in Full")
shall not waive any of our rights to collect the full amount due under this Agreement.
Notice of any disputes must be in writing and received by us at our address within
thirty (30) days after the invoice date or you will waive any objection.
8. Default/Termination. After the initial 30-day money back guarantee
period, you may terminate this Agreement at any time with thirty (30) days notice
in accordance with the immediately following procedure. You must give such notice
of termination by "Submitting a Ticket" to our Billing Department. You can "Submit
a Ticket" on the Support Center page of the Site at http://www.relysoftware.com
receipt of your Ticket, indicating your desire to terminate this Agreement, we will
generate a Cancellation Ticket to cancel your Account. We will send to you, by e-mail,
a Cancellation Ticket Number to confirm that your termination notice was received.
If you do not receive a Cancellation Ticket Number, your termination notice may
not have been received by us. You may contact our Customer Support Department at
1-888-RELYPOS to verify the generation of a Cancellation Ticket Number. Your termination
request will be fulfilled within 1 (one) business day. Because application usage
is paid in arrears, a final payment for usage will be processed on your next billing
date after termination.
We may terminate this Agreement at any time without notice as provided in Section
25 herein. Notwithstanding our "30 Day Money-back Guarantee" as posted on the Site,
upon termination, and at our sole discretion, the fees for our services (e.g. the
initial sign up charges) may be refunded to you. Any additional charges incurred
after the initial signup will not be included in this refund.
If you fail to pay any amount owed to us within 5 days after the due date, or if
you have in the past failed to pay amounts due us or an affiliate of ours, or if
you breach any representation to us or fail to perform any of the promises you have
made in this Agreement, or if you are subject to any proceeding under the Bankruptcy
Act or similar laws, you will be in default and we may, in our sole discretion and
with or without prior notice, restrict or terminate Services and/or terminate this
Agreement, in addition to all other remedies available to us.
Upon termination of this Agreement and/or your Services, your right to use the Services
immediately ceases. You shall have no right and we will have no obligation thereafter
to forward any unread or unsent messages to you or any third party. We may require
reactivation charges to renew Services after termination or suspension.
Upon termination, you are responsible for paying all amounts and charges owing under
Should your credit or debit card decline for any reason, we will attempt to charge
it again as follows: 2nd attempt after 1 (one) day, 3rd attempt after 6 (six) additional
days, 4th attempt after 7(seven) additional days and 5th and final attempt after
14 (fourteen) more days. If the fifth attempt to bill your credit or debit card
is unsuccessful on the 30th (thirtieth) day, your account will be suspended and
we will notify you of such suspension by email, by message sent to your voicemail
box, or by telephone. Rely reserves the right to attempt to charge your credit or
debit card any time there Is a past due.
Accounts will be terminated if we are not able to confirm an order by phone and
do not receive any replies from the account holder. A credit or debit card authorization
form will be required to reactivate such accounts.
9. Account Changes. You may change Service features or Service
plans by notifying us in writing or by telephone. All requests need to provide name,
address, account number, and administrative PIN or be submitted from the original
email address on file.
10. Ownership of all data including menu information, customer information,
employee information and financial transaction. You are the owner of
all data entered by you or your employees. Prior to termination of your Account
for any reason, you may request to transfer your data to a spreadsheet. We reserve
the right to charge a fee for this service. The fee will be determined by the amount
of data. If you fail to transfer your data to spreadsheet prior to terminating your
Account, then following the termination of your Account, your data becomes property
of Rely Software. It is your responsibility to have your data transferred to spreadsheet
prior to canceling your Account.
11. Modification to Prices or Billing Terms. Rely Software reserves
the right, at any time, to change its prices and billing methods for Materials,
Content, Services and Accounts, effective immediately upon posting on the Site or
by e-mail delivery to you.
12. Modification; Assignment. We may change or modify this Agreement
from time to time, but any such change (a) will be made in good faith, and (b) if
significant (as determined in the sole discretion of Rely Software), will only be
made after first providing you with notice of the change. You can review the most
current version of this Agreement at any time at our Site (Rely Software.com). If
you do not agree to a significant change, you may terminate this Agreement by giving
us written notice within 15 days of receipt of our notice of such significant change.
No hand-marked changes on this Agreement or any amendment by you will be valid unless
we accept the changes in writing. Delivery by facsimile transmission (fax) of a
copy of a modification of this Agreement shall be effective as delivery of an original.
13. Assignment. We may assign all or part of our rights or duties
under this Agreement in connection with a sale of all or substantially all the assets
of Rely Software to a third party without notice to you; provided any such third
party shall be obliged to honor the terms of this Agreement. You may not assign
this Agreement without our prior written consent.
14. NO WARRANTIES. THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS
ARE PROVIDED "AS IS." WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES
AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF
ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL
PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING
OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON
OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE
TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of
implied warranties. In such jurisdictions, the foregoing disclaimers may not apply
to you insofar as they relate to implied warranties. If you rely on the representations
or warranties of any third persons with respect to the Services (including without
limitation by dealers or resellers of the Services) beyond those made by Rely Software,
your sole remedy for such reliance is against the third person making such representation
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL RELY SOFTWARE, ITS
PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS,
OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT
NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING
TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii)
YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE
OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER,
(iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER
EQUIPMENT FAILURES, OR (vi) ACTS OF GOD, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL.
THE FOREGOING SHALL APPLY EVEN IF RELY SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. RELY SOFTWARE ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT
YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1)
WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE,
OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION.
YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE
TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE
OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
IN NO EVENT SHALL RELY SOFTWARE, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR
RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS
AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING
FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, RELY SOFTWARE SHOULD HAVE
ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND RELY
SOFTWARE AGREE THAT IN NO EVENT SHALL LIABILITY OF RELY SOFTWARE TO YOU FOR ANY
REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH
YOU AND RELY SOFTWARE AGREE THAT THIS SECTION 17 OF THE AGREEMENT, "LIMITATION OF
LIABILITY", IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND RELY SOFTWARE. YOU ACKNOWLEDGE
THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, RELY SOFTWARE WOULD
NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW
AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
16. Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS
RELY SOFTWARE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS,
MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING
CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING
ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF,
OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON'S
USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED
BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE
TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING
THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM
THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF RELY SOFTWARE OR ITS EMPLOYEES, AGENTS,
CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST
EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
17. Force Majeure. Either party shall be excused from any delay
or failure in performance hereunder, other than the payment of moneys, caused by
reason of occurrence or contingency beyond its reasonable control, including without
limitation, acts of God, earthquake, fire, flooding, riots, terrorism, war or government
Site (Rely Software.com).
19. Cooperation With Government Authorities. If necessary and in
accordance with applicable law, Rely Software will cooperate with local, state,
federal, international and/or worldwide government authorities to protect this Site,
Materials, Content, Services, Accounts, visitors, customers, Rely Software, its
parents, subsidiaries, affiliates and their respective members, managers, directors,
officers, employees, stockholders and agents and operational providers, from the
unauthorized use of this Site, Materials, Content, Services and Accounts.
20. Links to Other Materials. The linked sites are not necessarily
under the control of Rely Software and Rely Software is not responsible for the
content of any linked site or any link contained in a non-affiliated linked site.
Rely Software reserves the right to terminate any link or linking program at any
time. Rely Software has selected the links for your convenience. The selection or
omission of links is not intended to endorse any particular companies or products.
If you decide to access any of the third party sites linked to this Site, you do
so entirely at your own risk. Any links to any portion of the Site shall be the
responsibility of the linking party, and Rely Software shall not be responsible
for notification of any change in name or location of any information on the Site.
21. Dealings With Advertisers. Your correspondence or business
dealings with, or participation in promotions of, advertisers found on or through
this Site, including payment and delivery of related goods or services, and any
other terms, conditions, warranties or representations associated with such dealings,
are solely between you and such advertiser. YOU AGREE THAT RELY SOFTWARE, ITS PARENTS,
SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS,
EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER ARE NOT RESPONSIBLE OR
LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF ANY SUCH DEALINGS
OR AS A RESULT OF SUCH ADVERTISERS ON THE SITE.
22. Notices. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and shall be delivered,
mailed by first-class mail, postage pre-paid or sent by facsimile or electronic
mail, addressed, (a) if to you, at the address as kept in our files or at such other
address as you shall have furnished to us in writing, or (b) if to us at 8620 East
Bayshore Rd, Marblehead, Ohio 43440, attention Customer Support Department. Your
notice must specify your name and Account. Each such notice, request or other communication
shall be effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent
by facsimile, when sent and receipt is telephonically confirmed or (iii) if given
by any other means (including, without limitation, by air courier), when delivered
at the address specified above. Oral notices shall be deemed effective on the date
reflected in our records.
23. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, excluding that body of law
applicable to conflicts of law.
24. Jurisdiction and Venue. You and Rely Software agree that any
suit, action or proceeding arising out of or relating to this Agreement shall be
instituted only in a Florida state or federal court sitting in Orlando, Florida,
United States of America. You and Rely Software each waive any objection you or
Rely Software may have now or hereafter to the laying of the venue of any such suit,
action or proceeding, and irrevocably submit to the jurisdiction of any such court
in any such suit, action or proceeding.
25. General Information. If any part of this Agreement is held
invalid or unenforceable, that portion shall be construed to reflect the parties'
original intent, and the remaining portions shall remain in full force and effect.
You hereby consent to Rely Software publicizing the existence (but not the terms)
of the relationship contemplated hereunder as a part of promotional and marketing
activities from time to time by Rely Software.
This Agreement constitutes the entire agreement between Rely Software and you with
respect to your use of Rely Software Site, Materials, Content, Services and your
Account, and it supersedes all prior or contemporaneous communications and proposals,
whether oral or written, between Rely Software and you with respect thereto.
The failure of Rely Software to exercise or enforce any right or provision of this
Agreement shall not constitute a waiver of such right or provision.