This Transcend Partnerships Agreement (“Partner Agreement”) is entered into between Transcend, Inc. (“Transcend”) and the entity or individual identified on the Partner Registration Form (“you” or “Partner”). The effective date of this Partner Agreement is the date on which you click, e-sign, or otherwise indicate your acceptance of the Partner Agreement (“Effective Date”). If you are agreeing to this Partner Agreement on behalf of your company, you represent that you are authorized to accept Partner Agreement on behalf of your company, and all references to “Partner” or “you” reference your company.

1. Partner and Transcend Referrals

1.1.Referral Process. Partner may submit referrals of potential new customers (each a “Prospective Transcend Customer”) to Transcend. Such submissions may be made by: (i) submitting Prospective Transcend Customer contact information via Transcend’s Opportunity Registration Form, (ii) sending an email to partnerships@transcend.io that includes, at a minimum, the first name, last name, email address, and company name of the Prospective Transcend Customer and the subject line “Partner Referral”, or (iii) if indicated on a Partner Registration Form and approved by Transcend, through online links from Partner’s website, marketplace, mobile app, or other online property to Transcend online properties (“Product-Led Referrals”).

1.2.Transcend Acceptance. After submitting a referral in accordance with Section 1.1, Transcend shall notify partner within five (5) business days if a referral has been “accepted.” Transcend may reject any referral for any reason at its sole discretion. In order for Partner to receive a referral commission (a “Referral Fee”), or for the Prospective Transcend Customer to receive a direct customer discount (a “Direct Customer Discount”), Transcend and Prospective Transcend Customer must enter into a valid and binding subscription agreement within one hundred eighty (180) days of Transcend’s email notification to Partner of its acceptance of the Prospective Transcend Customer referral (a “Referral Conversion”). Referrals Fees and Direct Customer Discounts are not available to Prospect End Customers involving federal state, or local government customers, or government-owned or partially-owned entities.

1.3.Referrals Fees. If the Partner Registration Form indicates that Partner is to receive a Referral Fee percent, Transcend will pay to Partner the indicated percent of Subscription Fee Revenue received by Transcend for each Referral Conversion. The Referral Fee is payable no later than thirty (30) days after the date on which Transcend receives payment from the Prospective Transcend Customer in connection with the Referral Conversion. Partner shall be responsible for all taxes, duties, VAT charges and similar taxes and fees which are levied or imposed by reason of Referral Fees paid to Partner, including but not limited to taxes on Partner’s income.

1.4.Customer Discounts. If the Partner Registration Form indicates that Prospective Transcend Customers are to receive a Direct Customer Discount, Transcend will offer Prospective Transcend Customers from accepted referrals the Direct Customer Discount as a percent discount off the Prospective Transcend Customer’s initial order. Direct Customer Discounts are only applicable to new customer’s initial purchase from Transcend, will be calculated solely based on expected Subscription Fee Revenue, and will not apply to purchases of successor products or features as determined in Transcend’s sole discretion. 

1.5.Mutual Referrals. If a Partner Registration Form indicates that partner will accept referrals for potential customers from Transcend, Transcend may submit referrals of potential new customers to Partner (“Prospective Partner Customer”) by sending an email to the Partner email address listed on the Partner Registration Form that includes, at a minimum, the first name, last name, email address, and company name of the Prospective Transcend Customer, or via another reasonable method agreed upon between the parties. For any Prospective Partner Customers submitted by Transcend, Partner will accept or reject such referral and pay Transcend the referral fee percent set forth in the Partner Registration Form, in a manner substantially similar to the way in which Transcend may accept or reject referrals and pay Referral Fees to Partner as described in Sections 1.1 through 1.3 above. 

1.6.Partner Manager. Each party will designate an individual to serve as a partner manager for activities under this Partner Agreement. The initial partner managers under this Partner Agreement are set forth on the Partner Registration Form. Each party will provide email notice of the appointment of a new partner manager.

1.7.Product-Led Referrals. If indicated on a Partner Registration Form, Partner may submit Product-Led Referrals of Prospective Transcend Customers through online links from Partner’s website, marketplace, mobile app, or other online property to Transcend online properties. Product-Led Referrals will be considered “validated” where: (i) the Prospective Transcend Customer first reached a Transcend online property via link containing an Urchin Tracking Module (UTM) code which the parties have previously agreed to use in writing for the purposes of the Partner Agreement; or (ii) the Prospect Transcend Customer has identified Partner as the source of their referral. Transcend will accept or reject Validated Product-Led Referrals in accordance with the criteria set forth in Section 1.2. Unless otherwise indicated on a Partner Registration Form, accepted Product-Led Referrals will only be eligible to receive Direct Customer Discounts, and not eligible to receive Referral Fees. 

2.Partner Access to the Services

2.1.Demo Account Access. If indicated on a Partner Registration Form, subject to this Partner Agreement, during the Term, Partner may use the Services solely for internal training and testing and for demonstrations to Prospective Transcend Customers. Partner will keep its login credentials to the Services confidential and will not share them with anyone else. Partner may not use the Services for production purposes or for any purpose other than as permitted in this Partner Agreement. Partner agrees to use only non-production test data (i.e., “dummy data”) with the Services.

2.2.Restrictions. Partner will not (and will not permit anyone else to) do any of the following: (a) resell, provide access to, distribute or sublicense the Services to a third party (including Prospective Transcend Customers), (b) use the Services on behalf of, or to provide any product or service to, third parties, (c) use the Services to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Services, except to the extent expressly permitted by law (and then only with prior notice to Segment), (e) modify or create derivative works of the Services or copy any element of the Services, (f) remove or obscure any proprietary notices in the Services, (g) publish benchmarks or performance information about the Services, (h) interfere with the Services’ operation, circumvent their access restrictions or conduct any security or vulnerability test of the Services, or (i) transmit any viruses, illegal content or other harmful materials to the Services.

3.Unauthorized Representations; No Authority.

Partner shall refrain from making any representations, warranties or guarantees to Prospective Transcend Customers or to the trade with respect to the specifications, features or capabilities of Transcend’s product offerings that are deceptive, misleading or otherwise inconsistent with the literature distributed by Transcend. Partner is not the agent of Transcend and has no authority to execute contracts on Transcend’s behalf. Partner agrees to take all commercially reasonable steps to preserve and protect the goodwill and reputation of Transcend. Partner shall not engage in any conduct which may damage Transcend’s reputation. This Partner Agreement is non-exclusive.

4.Marketing

4.1.Use of Brand Elements. During the Term, subject to Partner Agreement, each party grants the other party the right to use and display its Brand Elements solely to identify the parties’ relationship under Partner Agreement and for mutually agreed marketing activities. Rights granted in Partner Agreement are non-exclusive and (except as set out in Partner Agreement) non-sublicensable and non-transferable. 

4.2.Approvals and Usage Limits. Use of a party’s Brand Elements is subject to its prior approval and any usage guidelines it provides in writing, including, for Transcend, the Transcend Brand Guidelines. After initial approval, substantially similar uses do not require subsequent approval. In addition, any press release or other public announcement relating to Partner Agreement must be approved by each party in advance. Partner hereby approves Transcend’s use of Partner’s Brand Elements to promote Partner’s partnership with Transcend, including by referencing Partner verbally and on Transcend’s website. Each party will promptly cease any problematic use of the other party’s Brand Elements upon request. 

5.Intellectual Property Rights

5.1.Ownership. Neither party grants the other any rights or licenses not expressly set out in Partner Agreement. Except for Transcend’s use rights in Partner Agreement, Partner retains all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use). Except for Partner’s use rights in Partner Agreement, Transcend and its licensors retain all intellectual property and other rights in its Brand Elements (including all goodwill arising from their use), the Services and any related Transcend technology, templates, formats and dashboards, including any modifications or improvements to these items made by Transcend..

5.2.Feedback. If either party provides the other party with feedback about the other party’s offerings, the recipient may use the feedback without restriction. This is not a license under the feedback provider’s patent rights. 

6. Term and Termination

6.1.Term. The term of this Partner Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the terms of this Section 6. Either Party may terminate this Partner Agreement for its convenience at any time by providing the other Party with thirty (30) days advance written notice of termination.

6.2.Effect of Termination. Sections 2.2 (Restrictions), 3 (Unauthorized Representations; No Authority), 4.2 (Approvals and Usage Limits), 5 (Intellectual Property), 6.2 (Effect of Termination), 7 (Representations and Warranties), 8 (Confidential Information), 9 (Indemnification), 10 (Limitation of Liability), 11 (General), and 12 (Definitions) shall survive the termination of this Partner Agreement. Any referrals received and accepted by Transcend prior to the effective date of termination shall be honored and payment made pursuant to the terms of Partner Agreement.

7. Representations and Warranties

Each Party represents and warrants that in its performance of any obligations or services contemplated under Partner Agreement that such Party shall comply with all applicable laws, rules and regulations. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR TO ANY PERSON OR ENTITY WITH RESPECT TO THE OTHER PARTY’S PRODUCT OFFERING OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN PARTNER AGREEMENT, TRANSCEND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE TRANSCEND PRODUCT OFFERING THAT TRANSCEND DEVELOPS OR PROVIDES HEREUNDER.

8. Confidential Information

8.1.Obligations. As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in Partner Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in Partner Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 9 and they are bound to confidentiality obligations no less protective than this Section 9. 

8.2.Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under Partner Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.

8.3.Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 8.

9. Indemnification

9.1.Obligations. Each party will defend, indemnify and hold harmless the other party and its officers, directors, employees, representatives and agents from and against any third-party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) to the extent arising from or relating to (a) an allegation that the indemnifying party’s Brand Elements, when used as authorized in Partner Agreement, infringe third-party trademark or copyright rights or (b) the indemnifying party’s breach of Section 8 (Conduct and Warranties). 

9.2.Procedures. The indemnifying party’s obligations in this Section are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than ceasing use of infringing materials). The indemnified party may participate in a claim with its own counsel at its own expense. 

10.Limitation of Liability

10.1.Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS AFFILIATES AND LICENSORS) WILL NOT BE LIABLE UNDER PARTNER AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.2.Limitation on Amount of Liability. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S (AND ITS AFFILIATES’ AND LICENSORS’) ENTIRE LIABILITY UNDER PARTNER AGREEMENT WILL NOT EXCEED $10,000.

10.3.Excluded Claims. “Excluded Claims” means (a) either party’s breach of Section 8 (Confidential Information), (b) amounts payable to third parties by the indemnifying party under Section 9 (Indemnification) (“Indemnity Liability”) or (c) Partner’s breach of Section 2.2 (No Production Use or Real Data), Section 2.3 (Restrictions) or the restrictions provisions of any Partner Plan. However, the indemnifying party’s aggregate Indemnity Liability is limited to $1,000,000.

11. General

11.1.Entire Agreement. This Partner Agreement, the Partner Registration Form, and any exhibits, constitutes the entire agreement between the Parties and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Partner Agreement. If there is a conflict between the documents that make up this Partner Agreement, the documents will control in the following order: the Partner Registration Form, this Partner Agreement. This Partner Agreement may not be modified or amended except by an instrument in writing signed by the Parties. 

11.2.Governing Law.The Partner Agreement will be governed by California law except for its conflicts of laws principles. This Partner Agreement will not be governed by the United Nations Convention on the International Sale of Goods.

11.3.Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable and the remaining provisions of the Partner Agreement will remain in full effect.

11.4.Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. All notices to Transcend will be sent to Transcend Inc., Attn: Legal Department, 340 S Lemon Ave #1897 Walnut, CA 91789, with a copy to legal@transcend.io. All notices to Partner will be sent to the address listed above, to the attention of the Partner’s CEO and copied to its Legal Department if not otherwise specified.

11.5.Waiver. A waiver of any default is not a waiver of any subsequent default. 

11.6.Assignment. Partner may not assign or transfer this Partner Agreement or any rights or obligations under this Partner Agreement without the written consent of Transcend. Transcend may not assign this Partner Agreement without providing notice to Partner, except Transcend may assign this Partner Agreement or any rights or obligations under this Partner Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void. Partner may exercise its licenses and other rights under this Partner Agreement using individual contractors subject to any notice and approval requirements herein; provided, however, that Partner shall be responsible hereunder for the acts or omissions of such individual contractors as if they were its own employees.

11.7.No Agency. Transcend and Partner are not legal partners or agents, but are independent contractors.

11.8.Force Majeure. Except for payment obligations, neither Transcend nor Partner will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, epidemic, outbreak, pandemic, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) for so long as such event prevents the Party’s commercially reasonable performance.

11.9.No Third-Party Beneficiaries. There are no third-party beneficiaries to this Partner Agreement.

12. Definitions

12.1.“Brand Elements” means the trademarks, service marks, names, logos, images, collateral or similar materials provided by a party for use under this Partner Agreement.. 

12.2.“Confidential Information” means information disclosed to the receiving party under this Partner Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Segment’s Confidential Information includes the terms and conditions of this Partner Agreement and any technical or performance information about the Services.

12.3.“Opportunity Registration Form” means the form available at https://docs.transcend.io/contact/partner-referral (https://docs.transcend.io/contact/partner-referral), which may be updated by Transcend from time to time.

12.4."Partner Registration Form” means a form or registration workflow accepted, e-signed, or executed by Partner referencing this Partner Agreement..

12.5.“Services” means Transcend’s proprietary cloud services described at https://docs.transcend.io/docs (https://docs.transcend.io/docs) and any associated documentation.

12.6."Subscription Fee Revenue” means the fees paid to Transcend by Prospective Transcend Customer for the first twelve (12) months of Prospective Transcend Customer’s subscription to Transcend’s services, minus any Incidental Expenses and excluding any Add-on Sales. For purposes of this definition, “Incidental Expenses” means (a) costs attributable to sales, use, value-added, excise and other taxes, customs duties and other governmental charges; and (b) returns or credits, and “Add-on Sales” means additional purchases of Transcend’s services made following Prospective Transcend Customer’s initial purchase. For avoidance of doubt, the Parties understand and agree that Subscription Fee Revenue shall exclude professional services, training services or consulting services fees.

12.7.“Transcend Brand Guidelines” are the guidelines for Partners that Transcend may publish and update from time to time.