Transcend Evaluation Agreement
This Transcend Evaluation Agreement (“Agreement”) is entered into between Transcend, Inc. (“Transcend”) and the organization for which you are accepting these terms (“Client”). This Agreement sets forth the terms and conditions under which Client may use the Services. You represent that you have read and understand all the provisions herein and that you have the authority to bind such organization to this Agreement. The “Effective Date” of this Agreement will be the date that it is accepted by you. By clicking “I Accept” or “I Agree” below or using the services, you agree to this agreement on behalf of client. If you do not agree with this Agreement or you do not have the authority to bind your organization to this Agreement, you must not accept this Agreement or use the services.
1.1. Provision of Trial Services. If Trial Services are provided to Client by Transcend, Client and its Authorized Users may access and use the Trial Services in accordance with this Agreement and the Documentation.
1.2. Provision of Beta Services. If Beta Services are provided to Client by Transcend, Client and its Authorized Users may access and use the Beta Services to evaluate the offering and at Client’s discretion, provide Suggestions with respect to the Beta Services. Beta Services, including their features and functionality: (a) are not an official product and have not been commercially released; (b) may not be in final form or be fully functional; (c) may contain errors, design flaws or other problems; (d) may generate or produce inaccurate information or unexpected or incorrect results; (e) may cause loss of data or communications, project delays or other unpredictable damage or loss; (f) may never be released as a commercial version; and (g) may be discontinued by Transcend in whole or in part, at any time and without any obligation or liability to Client. This Section 1.2 will apply to Beta Services notwithstanding any contrary provision in this Agreement.
1.3. Usage Restrictions. Trial Services and Beta Services may be subject to certain additional restrictions, limitations and differing terms which will be provided to Client in writing when Client is onboarded. In the event of any conflict between this Agreement and the Trial Services or Beta Services terms, the Trial Services or Beta Services terms will govern and control solely with respect to the Trial Services or Beta Services. Transcend may, at its discretion, change or update the Services from time to time.
2. Client Use of Services
2.1. Client Administration. Client is responsible for designating Authorized Users for its Services account, maintaining updated Authorized User contact information, and managing access to Authorized User accounts.
2.2. Client Responsibilities. Client is responsible for any use of the Services through its account. Client will maintain the confidentiality of account credentials used by Authorized Users to access the Services. Client will prevent unauthorized use of the Services and promptly notify Transcend of any unauthorized use. Client may not permit sharing of accounts and passwords. Client acknowledges that information provided by Transcend regarding future functionality should not be relied upon to make a purchase decision.
2.3. Compliance. Client may only use the Services in accordance with this Agreement, the Documentation, and the Acceptable Use Policy. Client will obtain any permissions or consents from Authorized Users and comply with any privacy and data protection laws necessary to allow the operation of the Services.
2.4. General Restrictions. Client will not (and will not allow any Authorized User or third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) sell, resell, license, copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Service, or (e) use the Service to create any other product or in-house solution.
2.5. Client Third-Party Services. If Client uses any Client Third-Party Services with the Services: (a) Transcend will not be responsible for any act or omission of the third-party, including the third-party's access to or use of Client Data; and (b) Transcend does not warrant or support any Client Third-Party Service. Client is responsible for complying with licenses and paying fees for Client Third-Party Services.
3. Intellectual Property Rights
3.1. Transcend License. Except for the rights granted in Section 1 (Services), Transcend and its licensors own and reserve all right, title, and interest in and to the Transcend Technology.
3.2. Client License. Except for the rights granted in this Section, Client owns and reserves all right, title, and interest in and to the Client Data. Client grants Transcend and its contractors a worldwide, non-exclusive right to use the Client Data to provide the Services.
3.3. Suggestions. Client agrees that with respect to any Suggestions, Transcend may, in its discretion and for any purpose, (a) use, modify, and incorporate into Transcend’s products and services and (b) license or sublicense the Suggestions without obligation to Client.
3.4. Reports. Transcend may use Transcend Data (i) to provide, maintain, and improve the Services and develop new features and services and (ii) create and distribute reports and materials about the Services. Transcend will not identify Client as a source of information for any report or material described in this Section without Client’s permission.
4. Term & Termination
4.1. Term. The Agreement will remain in effect for the Term.
4.2. Termination. Either party may terminate this Agreement for convenience at any time by providing the other party with written notice thereof.
4.3. Effect of Termination. If this Agreement expires or is terminated, then (a) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, and (b) the following Sections will survive: 3 (Intellectual Property Rights), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 9 (Disputes), 100 (General Provisions), 1 (Definitions).
5.1. Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. This Agreement and the Transcend Technology will be Confidential Information of Transcend. Client Data will be Confidential Information of Client. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
5.2. Obligations. The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by the Client to provide Confidential Information to a Client Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees, contractors, and advisors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.
5.3. Compelled Disclosure. Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure. If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.
6.1. TO THE FULLEST EXTENT PERMITTED BY LAW, TRANSCEND AND ITS AFFILIATES (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE SERVICES ARE ACCURATE, COMPLETE, OR RELIABLE. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TRANSCEND WILL NOT BE LIABLE FOR THE ACTS AND OMISSIONS ANY CLIENT THIRD-PARTY SERVICE. CLIENT IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH ANY LAWS, AND TRANSCEND DISCLAIMS ALL LIABILITY RELATED TO CLIENT’S COMPLIANCE WITH LAWS.
7.1. By Client. Client will indemnify, defend, and hold harmless Transcend from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from a third-party claim regarding Client’s use of the Services in violation of this Agreement.
7.2. By Transcend. Transcend will indemnify, defend, and hold harmless Client from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from a third-party claim regarding an allegation that Transcend’s technology used to provide the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party. In no event will Transcend have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials not furnished by Transcend, (b) Services performed according to Client specifications, and (c) any content, information, or data provided by Client. For any claim covered by this Section, Transcend may, at its election (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services, or this Agreement and provide Client with a pro rata refund of prepaid fees for the affected Services.
7.3. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8. Limitation of Liability
8.1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, TRANSCEND AND ITS AFFILIATES WILL NOT BE LIABLE UNDER THIS AGREEMENT TO CLIENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT), REGARDLESS OF THE LEGAL THEORY, REGARDLESS OF WHETHER TRANSCEND HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, TRANSCEND’S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED $1000 US. UNDER NO CIRCUMSTANCES WILL TRANSCEND’S LICENSORS HAVE ANY LIABILITY UNDER THIS AGREEMENT.
9.1. Informal Resolution. Transcend wants to address Client’s concerns and requests that Client bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Transcend and Client agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After 15 days, either party may bring a formal proceeding.
9.2. Arbitration Terms. Transcend and Client agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below. Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by a single arbitrator. The arbitration will take place in San Francisco, California in the English language. Either party may bring a lawsuit in court for claims for injunctive relief to stop unauthorized use or abuse of the Services or claims of intellectual property infringement without first engaging in the informal resolution process described above. Transcend and Client consent to the exclusive jurisdiction and venue of the federal or state courts of San Francisco, California. Client may only resolve disputes with Transcend on an individual basis and will not bring a claim in a class, consolidated, or representative action.
10. General Provisions
10.1. Entire Agreement. Any attachments to the Agreement executed by the parties are hereby incorporated into the Agreement by reference. This Agreement constitutes the entire agreement between Client and Transcend with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Agreement, and the Documentation.
10.2. Governing Law. This Agreement will be governed by California law except for its conflicts of laws principles.
10.3. Notices. Notices must be sent by first class mail or overnight courier and are deemed given when received. Notices to Client may also be sent to the applicable Authorized User account email address and are deemed given when sent. Notices to Transcend must be sent to Transcend, Inc., Attn: Legal Department, 832 Sansome Street, San Francisco, CA 94111, with a copy to email@example.com.
10.4. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; except, however, Transcend may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the restrictions in this section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns. Any other attempt to transfer or assign is void. If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate this Agreement upon written notice.
10.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties.
10.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.7. Construction. Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.”
10.8. Force Majeure. Transcend will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, epidemic, act of war or terrorism, labor disputes, governmental action, utilities failures, and Internet disturbance) that was beyond its reasonable control. If the cause of a force majeure event continues unabated for 30 days, then both parties shall meet to discuss and negotiate in good faith what modifications to this Agreement or a relevant SOW should result from such cause; if the parties fail to reach agreement, either party may immediately terminate for convenience without any incurring any liability for doing so.
10.9. Waiver. No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
10.10. Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
10.11. Export Compliance. The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Client is responsible for compliance regarding Client’s use of the Services. Client will not permit Authorized Users to access the Services from a U.S. embargoed country.
11.1. “Acceptable Use Policy” means the acceptable use policy for the Services provided by Transcend at https://transcend.io/legal/acceptable-use/.
11.2. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.
11.3. “Authorized User” means a Client-designated user who administers the Services account and has access to permissions and other sensitive settings.
11.4. “Beta Services” means certain features or services that are not yet generally available and which are labeled as “early access,” “private Beta,” “public Beta,” “pre-release,” “beta” or similar.
11.5. “Client Data” means data and information submitted to the Services by Client or Authorized Users, including data and information submitted to the Services from Client Third-Party Services authorized by Client.
11.6. “Client Third-Party Services” means products, services, or applications made available to Client by third parties that interoperate through an API with the Services (e.g., Segment).
11.7. “Documentation” means any Transcend-provided written documentation and policies.
11.8. “Services” means the products and services provided by Transcend and used by Client under this Agreement.
11.9. “Suggestions” means feedback, comments, ideas, reviews, information, suggestions, or other materials that Client or Authorized Users provide to Transcend or its contractors.
11.10. “Term” means the term for this Agreement, which will begin on the Effective Date and continue for the length of time separately communicated to Client in writing or the date listed at the top of this Agreement, whichever is later, unless terminated earlier in accordance with this Agreement.
11.11. “Transcend Data” means usage data, statistics, and aggregated and anonymized data derived from Client Data so that such data does not identify a person.
11.12. “Transcend Technology” means the Services, Documentation, Transcend Data, and Transcend’s trademarks, logos, and other brand features.
11.13. “Trial Services” services provided to Client by Transcend on no-fee or trial basis.