Transcend Tools Online Subscription Agreement

Updated: May 26, 2022

This Transcend Tools Online Subscription Agreement (“Agreement“) between the Transcend Tools company described in the “Contracting Entity, Governing Law & Dispute Resolution” section below (“Transcend Tools“) and you (“Customer” or “you” or “your“) apply to licenses and subscriptions for Transcend Tools Services. By clicking on the appropriate button, or by downloading, logging into, installing, accessing or using the Services, you agree to this Agreement. If you are entering into this Agreement on behalf of an entity, you represent that you have the authority to bind that entity (in which case such entity is the “Customer”). If you do not agree to this Agreement, or if you are not authorized to accept this Agreement on behalf of the Customer, do not download, install, log into, access, or use any of the Services. This Agreement is entered into on the earlier of, (a) Customer clicking “Agree”, “Yes”, or similar acceptance to the terms of this Agreement to gain initial access to, or use of, the Services; or (b) Customer is given access to the Services (“Effective Date“). Transcend Tools and Customer may also be referred to individually as “Party” or collectively as the “Parties“. Capitalized terms used herein have the definitions designated in Section 12. The Parties hereby agree as follows:

PROVISION OF SERVICES
1. Access to Subscription Services. Subject to Customer’s compliance with this Agreement and timely payment of any applicable Fees (described below), during the Subscription Term, Transcend Tools shall make the Subscription Services available to Customer for Customer’s internal business use at the Usage Metrics purchased by Customer, and in accordance with applicable law. Customer agrees that its purchase and use of the Subscription Services are not contingent on any future functionality or features, or dependent on any oral or written public comments made by Transcend Tools regarding future functionality or features.
2. Protection of Customer Data. Transcend Tools shall maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Where Customer’s use of the Services includes the processing of “personal data” subject to applicable data protection laws, it will be governed by the data processing addendum described at http://18.189.229.135/legal (“DPA“) that is incorporated into this Agreement by reference. Customer shall only provide to Transcend Tools the minimum amount of personal data necessary to enable Customer to use the Services in accordance with this Agreement.
3. Changes to Services. Subject to Subsection 7.2(b) below, Transcend Tools may issue new releases for the Services during the Subscription Term which may include Updates, enhancements, or other modifications which will be included in the Fees set out in the Order.
4. Free Services; Trial Use. Transcend Tools may offer certain Free Services to Customer at no charge, including free accounts, free functionality, and trial use. Customer’s use of Free Services is subject to any additional terms Transcend Tools specifies and is only permitted during the Subscription Term Transcend Tools designates (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this section, the terms of this Agreement governing Subscription Services, including Section 2 (Use of Services), fully apply to Free Services. Transcend Tools may modify or terminate Customer’s right to use Free Services at any time and for any reason in Transcend Tools sole discretion, without liability to Customer. To the maximum extent permitted by applicable law, Transcend Tools disclaims all obligations or liabilities with respect to Free Services, including any Support Services, warranty and indemnity obligations. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE FREE SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR CUSTOMER DURING THE USE OF THE FREE SERVICES WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL SUBSCRIPTION TERM UNLESS CUSTOMER: (a) PURCHASES A SUBSCRIPTION TO THE SAME FREE SERVICES AS THOSE COVERED BY THE TRIAL; (b) PURCHASES AN UPGRADED VERSION OF THE SERVICES; OR (c) EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE TRIAL SUBSCRIPTION TERM. Notwithstanding anything else in this Agreement, Transcend Tools maximum aggregate liability to Customer in respect of Free Services will be US$100.
5. Beta Services. From time to time, Transcend Tools may invite Customer and Authorized Users to discuss or evaluate certain pre-release or beta services (collectively “Beta Services”). Customer may accept or decline any such evaluation or trial. Beta Services designated by Transcend Tools as Beta Services (e.g., “beta,” “pilot,” “limited release,” “developer preview,” “non-production evaluation”, or other designation) are solely for Customer’s evaluation purposes. If Customer opts into a Beta Service, Customer agrees to participate in usage and other testing and provide Feedback (as defined below) about the Beta Services, as reasonably requested by Transcend Tools. Beta Services are not considered Services under this Agreement, are not supported, and may be subject to additional program terms. Unless otherwise stated, any Beta Services evaluation period will expire upon the earlier of one (1) year from the evaluation start date or the date that a version of the Beta Services becomes generally available, unless such Beta Services are earlier discontinued by Transcend Tools. Transcend Tools may discontinue Beta Services at any time and may never make Beta Services generally available. Transcend Tools will not be liable for any damages or harm arising out of or in connection with Beta Services. Beta Services are provided “as is” without express or implied warranty and without indemnity. Transcend Tools will have no liability for, and Customer hereby releases Transcend Tools from any liability or damage arising out of or in connection with any Beta Service.
6. Service-Specific Terms. Some Services may be subject to additional terms specific to that product as set forth in the Service-Specific Terms. By accessing or using a product covered by the Service-Specific Terms, Customer also agrees to the Service-Specific Terms. Any Service-specific terms will be listed at http://18.189.229.135/legal.
USE OF SERVICES
1. Authorized Users. Only Authorized Users are permitted to access and use the Services. Customer shall be responsible for: (a) Authorized Users’ compliance with this Agreement and any Order(s) issued hereunder; (b) the accuracy and quality of Customer Data, the means by which Customer acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data; (c) maintaining the confidentiality of usernames, passwords, and other account information (as applicable); (d) all activities that occur under its Authorized Users’ usernames, passwords, or accounts as a result of Authorized Users’ access to the Subscription Services; and (e) ensuring Authorized Users’ use the Services only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. Customer shall notify Transcend Tools immediately of any unauthorized use of, or access to, the Subscription Services. Customer acknowledges that Transcend Tools may contact Customer and Authorized Users in connection with their use of the Services.
2. Restrictions. Customer shall not: (a) make any Services available to any third party other than Customer or Authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or include any Services in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Services to store or transmit Harmful Code; (e) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (f) permit direct or indirect access to or use the Services in a way that circumvents the Usage Metrics, or use the Services to access any Transcend Tools intellectual property, except as expressly permitted under this Agreement, an Order, or the Documentation; (g) frame or mirror any part of the Services, other than framing on Customer’s own intranet(s) (as applicable), or otherwise for its own legitimate business purposes or as permitted in the Documentation; (h) access the Services in order to build a competitive product or service or to benchmark with a non-Transcend Tools product or service; (i) reverse engineer, copy, or modify software included as part of the Services (except to the extent expressly permitted by applicable law in conflict with this restriction); (j) utilize the Services for improper, fraudulent, or other non-legitimate business purposes; (k) use the Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory, bigoted, hateful, indecent, or otherwise objectionable; (l) use the Services to send unsolicited communications, promotions, or advertisements in violation of the CAN-SPAM Act or any other applicable anti-spam law or regulation; (m) use any automated device or process such as a robot, spider, datamining, web-scraping, or other means to circumvent, access, or use or integrate with the Services or its contents, including but not limited to other user account information; or (n) damage, interfere, disable, or impair the Services in any way.
3. Unlawful Use of Services. Customer acknowledges that the Services may only be used for transactions that are permitted by law. Illegal use of any Service will be deemed a material breach of this Agreement, and such Service may be terminated at Transcend Tools discretion.
4. Age Requirement for Authorized Users. The Services are not intended for, and should not be used by, anyone under the age of 16. Customer responsible for ensuring that all Authorized Users are at least 16 years old.
THIRD-PARTY APPLICATIONS
Products or services developed by third parties may be available to Customer, including via Transcend Tools API, for use with the Subscription Services (“Third-Party Applications“). By using Third-Party Applications, Customer permits Transcend Tools to grant such Third-Party Applications access to Customer Data or other data as required for the use and support of such Third-Party Applications in conjunction with the Subscription Services. Third-Party Applications are subject to the third-party provider’s additional terms and may require an additional fee to such providers in order to use the Third-Party Applications. The Transcend Tools software may contain features designed to interoperate with Third-Party Applications. Such features are not considered Services under this Agreement. Transcend Tools may cease providing such features for any reason, including if the provider of the Third-Party Application ceases to make the Third-Party Application available for interoperation with the Services, without entitling Customer to any refund, credit, or compensation. Notwithstanding Transcend Tools obligations in the DPA, Transcend Tools is not responsible for and offers no warranty with respect to Third-Party Applications or their use or protection of Customer Data.

FEES AND PAYMENT
1. Fees. Customer shall pay Transcend Tools all fees as set forth in the applicable Order or SOW (“Fees“), as well as any Overages as defined in Section 4.5 below. Except as set forth in Section 7.2, all payment obligations are non-cancelable and Fees paid are non-refundable. Transcend Tools may change Fees at any time, including changing from a Free Service to a paid service and charging for Subscription Services that were previously offered free of charge; provided, however, that Transcend Tools will provide Customer with prior notice and an opportunity to terminate its account if Transcend Tools changes the price of a Subscription Service to which Customer is subscribed and will not charge Customer for a previously Free Service unless Customer has been notified of the applicable Fees and agreed to pay such Fees.
2. Payment Terms. Except as otherwise set forth in the applicable Order, all Fees will be billed annually in advance. All invoices for Fees are due and payable within the time frame and in the currency set forth in the applicable Order, without deduction or setoff. Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law (“Late Payment Interest“). Customer is responsible for providing complete and accurate billing and contact information to Transcend Tools and notifying Transcend Tools of any changes to such information. If Customer fails to pay any undisputed portion of a past due invoice within ten (10) business days after receiving notice that its account is overdue, Transcend Tools may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full (“Non-Payment Suspension”). Transcend Tools will not be obligated to continue to provide Services without payment of applicable Fees.
3. Credit Cards. If Customer pays by credit or debit card Customer: (a) will provide Transcend Tools or its designated third-party payment processor with valid credit or debit card information; and (b) hereby authorizes Transcend Tools or its designated third-party payment processor to charge such credit or debit card for all items listed in the applicable Order, including any renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable. Such charges must be paid in advance or in accordance with any different billing frequency stated in the applicable Order. Customer is responsible for providing complete and accurate billing and contact information and notifying Transcend Tools in a timely manner of any changes to such information.
4. Use of Purchase Orders. No additional or inconsistent terms of any purchase order, or other form provided by Customer, will modify or supplement this Agreement, regardless of any failure of Transcend Tools to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.
5. Taxes. Transcend Tools Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Transcend Tools has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Transcend Tools shall invoice Customer and Customer shall pay that amount unless Customer provides Transcend Tools with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Transcend Tools is solely responsible for taxes assessable against it based on its income, property, and employees. Unless prohibited by the applicable taxing jurisdiction, the tax situs will be Customer’s ship-to address as set forth in the applicable Order.
6. Usage Verification. Customer acknowledges that Transcend Tools may review Customer’s use of the Subscription Services for the purpose of assessing Customer’s compliance with this Agreement. Customer shall reasonably cooperate and assist Transcend Tools in verifying its Usage Metrics. In addition, but no more than once annually, Customer shall provide Transcend Tools with copies of records evidencing its Usage Metrics within fifteen (15) business days, or such other mutually agreeable time frame, of Transcend Tools written request, and any additional substantiation as Transcend Tools may reasonably request. Transcend Tools may invoice for, and Customer shall pay for, Service usage that exceeds the Usage Metrics listed in the applicable Order (“Overages“). Overages will be invoiced at Transcend Tools then-current standard rates.
7. Purchases Through a Reseller. If Customer purchases Services through a Reseller, the pricing and payment terms are between Customer and Reseller (“Reseller Terms“). Customer acknowledges: (a) all payments for Services procured via a Reseller will be made directly to the Reseller and in accordance with the Reseller Terms, and (b) if a Reseller notifies Transcend Tools of its right to terminate or suspend any Services, Transcend Tools may terminate or suspend such Services. Transcend Tools will not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any applicable Reseller Terms.
PROPRIETARY RIGHTS AND LICENSES
1. Ownership; Reservation of Rights. As between Transcend Tools and Customer, all rights, title, and interest in and to all intellectual property rights in the Services and Transcend Tools Confidential Information are and will remain owned exclusively by Transcend Tools and its licensors. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of Transcend Tools will immediately vest in Transcend Tools upon creation. Unless otherwise specified in the applicable SOW, all deliverables provided in the performance of Professional Services are owned by Transcend Tools and will be made available as part of the Subscription Services provided under this Agreement. Nothing in this Agreement will preclude or restrict Transcend Tools from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services or other Transcend Tools intellectual property rights are granted to Customer, and all such rights are expressly reserved to Transcend Tools and its licensors.
2. Customer Data. As between Customer and Transcend Tools, Customer Data, and Customer Confidential Information are and will remain owned exclusively by Customer or the Authorized User, as applicable. Customer hereby grants Transcend Tools, its Affiliates, and its subprocessors a worldwide, limited-term license to utilize Customer Data (subject to Section 2.2) as necessary for Transcend Tools to analyze, host, copy, transmit, display, access, and otherwise use Customer Data to provide the Transcend Tools Services in accordance with this Agreement and each Order executed hereunder.
3. Statistical Usage Data. Customer agrees that Transcend Tools and its Affiliates may collect, use, and otherwise process Statistical Usage Data for its own internal analysis, analytics, marketing, and other internal business purposes (e.g., improving Transcend Tools products and services). Except where Customer has expressly provided authorized consent, Transcend Tools will only disclose Statistical Usage Data if such data is (a) aggregated or anonymized, and (b) does not disclose the identity of Customer or its Authorized Users or any Customer Confidential Information.
4. Feedback. To the extent that Customer or its Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), Customer hereby grants Transcend Tools an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution.
CONFIDENTIALITY
1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party“) to the other Party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Transcend Tools includes the Services including any discussions or information related to Beta Services; and Confidential Information of each Party includes the terms of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that the Receiving Party can demonstrate (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
2. Protection of Confidential Information. The Receiving Party shall (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of this Agreement; and (c) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither Party shall disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel, and accountants without the other Party’s prior written consent, on condition that a Party that makes any such disclosure to its Affiliate, legal counsel, or accountants shall remain responsible for such Affiliate’s, legal counsel’s, and accountants’ compliance with this “Confidentiality” Section.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent compelled by law to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATION, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS
1. General Warranty. Each Party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
2. Transcend Tools Limited Warranties. Transcend Tools warrants that (a) the Subscription Services will perform materially in accordance with the applicable Documentation; (b) Transcend Tools will not materially decrease the overall functionality of the Subscription Services during the current Subscription Term; (c) Transcend Tools will use industry standard measures to prevent Transcend Tools from introducing Harmful Code through the Subscription Services; and (d) Transcend Tools will perform the Professional Services in a diligent and professional manner. Customer’s exclusive remedy and Transcend Tools entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or, if Transcend Tools cannot accomplish the foregoing in a commercially reasonable manner, as determined in its reasonable discretion, Transcend Tools may terminate the deficient service and refund to Customer the Fees for the terminated Service that Customer prepaid to Transcend Tools, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.
3. Disclaimers. Except as expressly provided herein, neither Party or its licensors makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each Party and its licensors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement, to the maximum extent permitted by applicable law. Notwithstanding Transcend Tools obligations under the DPA, Transcend Tools does not warrant that Services will be error-free or uninterrupted, will meet Customer’s requirements or expectations, or that its security measures will be sufficient to prevent third-party access to Customer Data. Beta Services are provided “as is,” exclusive of any warranty whatsoever, notwithstanding any other provision of this Agreement.
INDEMNIFICATION
1. Indemnification by Transcend Tools.
  1. Transcend Tools shall defend any claim brought against Customer by a third-party to the extent such claim alleges that Customer’s use of the Subscription Services, excluding Free Services, (as authorized in this Agreement, and as provided by Transcend Tools to Customer) infringes any valid and enforceable third-party patent, copyright, or validly registered trademark, or misappropriates a third-party trade secret (a “Claim”). If a third party makes a Claim against Customer, Transcend Tools shall pay all damages (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction, or the settlement agreed to by Transcend Tools.
  2. If any Claim is brought or threatened, or if Transcend Tools reasonably believes that the Subscription Services may become the subject of a Claim, Transcend Tools may, at its sole option and expense (1) procure for Customer the right to continue to use the applicable Subscription Service; (2) modify the Subscription Service to make it non-infringing; (3) replace the affected aspect of the Subscription Service with non-infringing technology having substantially similar capabilities; or (4) if Transcend Tools determines none of the foregoing is commercially practicable, terminate this Agreement upon thirty (30) days’ written notice and refund Customer any prepaid Fees related to the Subscription Services prorated for the remainder of the Subscription Term.
  3. Transcend Tools defense and indemnity obligations do not apply to the extent that, and Transcend Tools will have no liability with respect to (1) any modification of the Subscription Services made by anyone other than Transcend Tools, (2) any use of the Subscription Services in combination with software, products, or services not provided by Transcend Tools, (3) any Third-Party Applications; (4) Services under an Order for which there is no charge; (5) Customer’s use of the Subscription Services not in compliance with this Agreement; or (6) Customer’s failure to use any modification or Update provided by Transcend Tools.
2. This indemnity states Transcend Tools entire liability, and Customer’s exclusive remedy, for any third-party Claims as described in Section 8.1.
3. Indemnification by Customer. Customer shall defend any claim brought against Transcend Tools by a third party to the extent such claim relates to the Customer Data (if used by Transcend Tools in accordance with this Agreement) or Third-Party Applications built by or on behalf of Customer. If a third party makes such a claim against Transcend Tools, Customer shall pay all damages (including reasonable attorneys’ fees) finally awarded against Transcend Tools, (or amounts agreed in a monetary settlement) with respect to such claim. This indemnity states Customer’s entire liability, and Transcend Tools exclusive remedy, for any third-party claims as described in this Section 8.2.
4. Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt written notice, (b) sole control over the defense and any settlement negotiations, and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of the indemnifiable claim, on condition that the indemnified Party’s prior written consent will be required with regard to any settlement that imposes any obligation or liability on the indemnified Party, such consent not to be unreasonable withheld, conditioned, or delayed. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.
LIMITATION OF LIABILITY
1. Exclusion of Damages. Neither Party (or its Affiliates) will be liable for any loss of profits, revenues, or goodwill, or business interruption, loss of anticipated savings, loss of use, costs of substitute goods or services, work stoppage, or any indirect, special, incidental, exemplary, punitive, or consequential damages arising out of or relating to this Agreement, however caused, and based on any theory of liability, whether for breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if such Party is advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
2. Limitation of Liability. A Party’s (and its respective Affiliates’) aggregate cumulative liability for all damages arising out of or related to this Agreement or the Services will not exceed the applicable Subscription Fees paid or payable to Transcend Tools for the Subscription Services giving rise to the claim during the twelve (12) month period immediately preceding the claim. The existence of more than one claim will not expand this limit. The liability limitations under this Section 9.2 will not apply to (a) Customer’s obligations to pay Fees due under this Agreement; (b) Customer’s breach of Sections 2.1 or 2.2; (d) either Party’s gross negligence, willful misconduct, or fraud; or (e) either Party’s negligence on-site during the performance of Professional Services that results in death, personal injury, or damage to tangible property.
TERM AND TERMINATION
1. Term of Agreement. This Agreement will commence on the Effective Date and continue until terminated as permitted herein (the “Term“). If there are no active Orders, this Agreement may be terminated by either Party upon ninety (90) days’ prior written notice.
2. Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will commence and expire in accordance with the start date and end date set forth in the Order. Unless otherwise specified in an Order, a Subscription Term will automatically renew for one (1) year on the same terms, unless either Party gives the other Party written notice (email is sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Any new Service subsequently added to Customer’s subscription will be coterminous with the current Subscription Term.
3. Suspension. In the event of Customer’s or an Authorized User’s breach of this Agreement, including without limitation for Non-Payment Suspension or violation of the restrictions in Section 2.2, Transcend Tools may, in its reasonable discretion, suspend Customer’s or an Authorized User’s access to or use of the Subscription Services. Notwithstanding the foregoing, Transcend Tools shall use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or an Authorized User via email before taking the foregoing actions.
4. Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt, Customer’s noncompliance with Section 2.2 is deemed a material breach of this Agreement. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.
5. Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Orders and access to the Subscription Services will automatically terminate; (b) Customer and its Authorized Users shall immediately cease access and use of the Subscription Services, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations of Customer will become due and payable immediately; and (d) for thirty (30) days following the termination of this Agreement Transcend Tools shall make Customer Data available to Customer, at Customer’s request, via read-only access to the Subscription Service, solely for purpose of allowing Customer to retrieve Customer Data. After thirty (30) days, Transcend Tools will have no obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Customer Data, except if Transcend Tools is required to retain a copy of such Customer Data for legal purposes, on condition that such copy remains subject to the confidentiality provisions of this Agreement.
6. Surviving Provisions. The Sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representation, Warranties, Exclusive Remedies, Disclaimers”, “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of this Agreement.

GENERAL PROVISIONS

Publicity and Reference. Customer grants Transcend Tools the right to use Customer’s company name as a reference for marketing or promotional purposes on Transcend Tools website and in other public or private communications with existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Transcend Tools from time-to-time.
Export Control. Customer shall comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Services. Without limiting the foregoing, (a) Customer represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to U.S. jurisdiction (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Customer shall not, and shall ensure that Authorized Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c) Customer shall not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
Anti-Corruption. Neither Party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.
U.S. Government Rights. If Customer, or any Authorized User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Services and Documentation comprise “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3.

Contracting Entity, Governing Law & Dispute Resolution. The Transcend Tools contracting entity, law that will apply to a dispute arising out of or relating to this Agreement, and jurisdiction for dispute resolution depends on where Customer is domiciled, in all cases without reference to conflict of law principles.

If Customer is domiciled in:	The Transcend Tools contracting entity is:	Governing law is that of:	Venue:
California	Transcend Tools, Inc. 1759 Oceanside Blvd, Suite C #170Oceanside Ca. 92054 USA	California	Los Angeles County, California
Any U.S. state other than California; Mexico; or a country in Central America, South America, or the Caribbean	Transcend Tools, Inc. 1759 Oceanside Blvd, Suite C #170Oceanside Ca. 92054 USA	Nevada

The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to this Agreement in any manner whatsoever. The Parties shall attempt in good faith to resolve any disputes arising out of relating to this Agreement promptly by negotiation between representatives with the authority to resolve such dispute.

Notices. Except as otherwise set forth herein, all notices under this Agreement will be by email, although Transcend Tools may provide notice to Customer through the Services (e.g., an in-app notification). Legal notices to Transcend Tools must be sent to operations@transcendtools.com. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes beyond the reasonable control of the affected Party (each a “Force Majeure Event“). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. For the avoidance of doubt, issues relating to COVID-19 will not be considered a Force Majeure Event.
Assignment. Customer may not assign this Agreement, in whole or part, without the prior written consent of Transcend Tools, and any other attempt to transfer Customer’s rights or obligations under this Agreement will be void; however, Customer may assign this Agreement without consent to an Affiliate, in the event of a merger, corporate reorganization, or to a purchaser of a Party’s business entity in the event of a sale of all or substantially all of its business or assets relating to this Agreement, or other change of control, on condition that the purchaser is not a competitor of Transcend Tools. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Any other attempt to transfer Customer’s rights or obligations under this Agreement is void.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Entire Agreement; Order of Precedence. This Agreement (together with any SOWs, Orders, and linked terms) contains the entire agreement of the Parties concerning the subject matter of this Agreement and supersedes all prior communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter, except that if Customer has executed a separate written agreement with Transcend Tools or has signed an Order referencing a separate agreement governing use of certain specified Services, then such agreement will control with respect to those specified Services to the extent that any provision of this Agreement conflicts with the terms of such agreement. Except as set forth in Section 11.12 (Modifications), any amendments or modifications to this Agreement must be executed in writing by an authorized representative of each Party. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the DPA, (2) the Order, (3) SOW, (4) this Agreement, and (5) any links provided herein.
Modifications. Transcend Tools may modify the terms of this Agreement (including any terms or policies referenced herein) from time to time, with notice to Customer in accordance with Section 11.7 (Notices) or by posting the modified Agreement on our website. Together with notice, Transcend Tools will specify the effective date of the modifications. Customer can review the most current version of the Agreement at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in the notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions. Customer must accept the modifications to continue using any Free Services. If Customer objects to the modifications, Customer’s exclusive remedy is to cease using the Free Services.
Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. This Agreement is in the English language only, which language is controlling in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the Parties. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term, or a waiver of any other term of this Agreement. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that Transcend Tools will have no obligations or liability whatsoever to any third parties with which Customer does business.

DEFINITIONS
1. “Affiliate” means an entity that controls, is controlled by, or is under common control of a Party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity.
2. “Authorized Users” means the individual or agent authorized by Customer to use the Subscription Services. Authorized Users include employees, consultants, agents, and other third parties accessing the Subscription Services on Customer’s behalf pursuant to this Agreement. The scope of Authorized Users or “use” may be further defined or modified in the Order.
3. “Customer Data” means any content, data, information, personal data (as described within Section 1.2), and other materials submitted by Customer or an Authorized User to the Services. Customer Data excludes Statistical Usage Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction, or other Feedback relating to the operation of the Subscription Services pursuant to Section 5.4.
4. “Documentation” means the official Transcend Tools-provided instructions, user guides, help and training manuals, descriptions of Support, and other descriptive product information applicable to the Services, whether in electronic, paper, or equivalent form, as updated from time to time, accessible at http://18.189.229.135/legal, other websites designated by Transcend Tools or through the Services.
5. “Export Control and Sanctions Laws and Regulations” means all laws and regulations under applicable law prohibiting or otherwise regulating the export, re-export, or (in-country) transfer of goods, technology, software, or services, or those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities.
6. “Free Services” means certain Subscription Services that Transcend Tools may offer at no charge, including free accounts. Free Services may have limited features, functions, and other technical limitations and may be modified or updated by Transcend Tools at any time, without notice.
7. “Harmful Code” means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.
8. “Order” means a written or electronic order form (including any online order form), executed by the Parties or otherwise accepted by Customer, identifying the Services, scope, quantity, charges, and other information relevant to a specific transaction between Customer and Transcend Tools. Each Order will be governed by this Agreement and is incorporated herein by this reference.
9. “Professional Services” means the implementation, technical, consulting, training, and services provided by or through Transcend Tools, as described in the relevant Order or SOW.
10. “Reseller” means a third party authorized by Transcend Tools to promote, distribute, and/or resell the Services.
11. “Services” means collectively, as applicable, Subscription Services, Support Services, and Professional Services Customer has ordered, and Transcend Tools has agreed to provide, as indicated on the applicable Order.
12. “Statement of Work” or “SOW” means a document executed by the Parties describing Professional Services purchased by Customer pursuant to an Order. Each SOW will be governed by this Agreement and is incorporated herein by this reference.
13. “Statistical Usage Data” means usage information reflecting the access or use of the Services by or on behalf of Customer or an Authorized User, including information on user visits, numbers and types of clicks or impressions, as well as statistical, functional, behavioral, or other information or data based on or derived from any of the foregoing.
14. “Subscription Services” means the Transcend Tools software-as-a-service functionality, and all associated Updates, offered on a subscription basis by Transcend Tools via an Order that provides the functionality described in the Documentation.
15. “Subscription Term” means the entire period during which Customer is entitled to use the Subscription Services, including the initial term and any applicable renewal terms.
16. “Support Services” means the type of Transcend Tools customer support for the Subscription Services as specified or purchased within an Order and as further described in the Documentation.
17. “Updates” means all updates and enhancements that Transcend Tools makes generally available, at no additional charge, to its customers of the Subscription Services identified in an Order and licensed hereunder pursuant to Section 1.3.
18. “Usage Metrics” means the metrics used to determine the scope of Customer’s access and use of the Subscription Services and associated fees, as set out in an Order.