End User License Agreement

BY CLICKING THE ACCEPTANCE BUTTON ON THE REGISTRATION PAGE FOR THE SERVICES, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING THE ACCEPTANCE BUTTON, YOU ALSO EXPRESSLY AGREE THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER (AS DEFINED BELOW) TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

This End User License Agreement (“Agreement”) is entered into between Transcend Software, Inc., a corporation organized and existing under the laws of Delaware (“TRANSCEND”) and the customer identified on the registration page for the TRANSCEND services provided under this  Agreement (the “Customer”).

WHEREAS, TRANSCEND has developed the Transcend Design Generator™ (as defined below), and makes the Transcend Design Generator™, the Transcend Nexus Program, Content and Documentation (each as defined below and collectively, the “Platform”) available at transcendh2o.com and transcendinrfra.com (together with any successor sites thereto, the “Transcend Site”, and together with the Platform, the “Services”);

WHEREAS, Customer provides services which cover everything from design, to construction, operation, and maintenance of all types of infrastructure, including wastewater and water treatment facilities, and handles the needs of large projects; and

WHEREAS, Customer desires to obtain a license to access and use the Services to create preliminary engineering packages for infrastructure projects, including, without limitation, wastewater treatment plants, pumping stations, drinking water treatment plants, electrical substations, and other infrastructure (each a “Facility”) and TRANSCEND desires to grant Customer such a license to the applicable Services on a non-exclusive basis during the Term (as defined below) in the manner set forth in this Agreement.

THEREFORE, in consideration of the mutual promises, terms and conditions hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

1. SERVICES

1.1 Certain Definitions

1.1.1 “Custom Toolshed Applications” means customized Transcend Toolshed Applications that have been developed by Transcend using the Customer-specific design and engineering applications within Customer’s dedicated instance of the Transcend Design Generator™ including: (i) configured proposal generation tools tailored to Customer’s specific design rules and workflows; (ii) specialized design calculators based on Customer’s proprietary design rules and optimizations; and (iii) project specific automation tools configured for Customer by Transcend based on Customer’s specific proprietary engineering requirements.

1.1.2 “Transcend Design Generator™” means TRANSCEND’S proprietary hosted cloud-based software platform that automates preliminary design processes to generate engineering documents and which includes the following components: (i) “TDG Automation” which is the core automated design generation functionality enabling users to input project parameters and produce detailed engineering deliverables includer process flow diagrams, P&ID, equipment lists, load lists, technology description, Civil BOQs, OPEX calculations, and various civil and site drawings; (ii) “TDG Foundation” which is the underlying data layer that structures and stores digital design data with metadata allowing users to extract, use and integrate design data through webhooks, APIs, direct integrations or productized connectors to external platforms; and (iii) the Transcend Toolshed Applications.

1.1.3 “Toolshed Applications” means, collectively, the Transcend Toolshed Applications and the Custom Toolshed Applications.

1.1.4 “Transcend Nexus Program” means TRANSCEND’S product offering that permits the selection by Customer of specified third party supplier equipment and technology through the Transcend Design Generator™.

1.1.5 “Transcend Toolshed Applications” means the design and engineering applications within the Transcend Design Generator™ that serve discrete engineering and proposal generated functions including: (i) proposal generation tools; (ii) design calculators; and (iii) automation tools.

1.2 Hosted Service. The Platform shall be hosted by TRANSCEND or its designee and will be made available through the Transcend Site for use by Customer in accordance with the terms of this Agreement.

1.3 Description of Services.

Customer shall input into the Platform technical parameters and other information necessary to provide a preliminary design for the Facilities including, but not limited to, feedstock data, site information, target outputs, technology preferences, existing asset information, client preferences and other information (the “Input Data”). Once Customer has provided Input Data for any specific Facility into the Platform, the Transcend Design Generator™  automatically generates a design package of such Facility based on TRANSCEND’s proprietary design rules for the Facilities (the “Transcend Design Rules”). Such design package includes a preliminary design of the Facility (the “Transcend Preliminary Design”) along with other engineering documents as agreed in the order form, quotation or other order confirmation issued by the reseller from whom the subscription to the Services was purchased by Customer (“Order Form”), which may include a commercial proposal, a process flow diagram, P&ID, single line diagram, equipment list, load list, technology description, 3D model, Civil BOQ, OPEX calculation, and multiple civil and site drawings (collectively, the “Output Data” and together with the Transcend Preliminary Design, the “Design Package”) which Output Data is made available to Customer through the Services. Customer understands that the  Design Package is not, in of itself, sufficient to build a Facility and is only an approximation of the final design of a Facility and TRANSCEND shall have no liability whatsoever arising from or in connection with any Facility constructed from, based upon, or that otherwise uses any Design Package. 

1.4 Modification of Services. The Services shall be subject to modification from time to time at TRANSCEND’s sole discretion, for any purpose deemed appropriate by TRANSCEND, provided that TRANSCEND shall not modify the Services in a manner that materially adversely affects the performance of the Services. TRANSCEND reserves the right to suspend Customer’s access to the Services, with prior written notice: (a) for scheduled or emergency maintenance, or (b) in the event Customer is in breach of this Agreement.

2. LICENSE GRANTS; USE OF THE SERVICES

2.1 Services and Content. Subject to the terms and conditions of this Agreement, TRANSCEND grants to Customer the following licenses:

(a) a limited, non-exclusive, worldwide, non-transferable, non-sublicensable right during the Term to permit named authorized users of Customer (each, an “Authorized User”) to: (i) access and use the Platform on behalf of Customer in connection with one or more Projects (as defined below), and (ii) use the Transcend Design Generator to download, print, and copy the Design Package, (iii) access and use the Transcend Toolshed Applications available on the Transcend Site that Customer has subscribed for as set forth in the Order Form; (iv) to access and use the Custom Toolshed Applications available on the Transcend Site; and (v) download and reproduce the applicable instructional and operating or user manuals or any other documentation or information TRANSCEND provides to Customer relating to the use of the Transcend Design Generator™ (the “Documentation”) in each case solely to generate the Design Package for Customer’s internal business purposes in connection with a Project, which purposes include providing Customer’s own services to its clients. As used herein, “Project” means the planning, development and design of a Facility for which Customer has submitted design specifications and other data through the Services; and

(b) a limited, non-exclusive, worldwide, non-transferable right during the Term to permit Authorized Users to access, use, view, download, and print work papers, educational videos and tutorials, portals and other materials made available through the Services (collectively, the “Content”) solely for Customer’s internal business purposes, which purposes include providing Customer’s own services to its clients.

2.2 Input Data. Subject to the terms and conditions of this Agreement, Customer grants to TRANSCEND (a) a worldwide, non-exclusive, non-transferable (except as permitted by Section 10.2), irrevocable, perpetual, sublicensable, royalty-free, fully paid-up license to use, reproduce, adapt, distribute, display, publicly perform and create derivative works from the Input Data to provide, maintain and improve the Services; (b) a worldwide, non-exclusive, non-transferable (except as permitted by Section 10.2), royalty-free, fully paid-up license to use, reproduce, adapt, distribute, display, publicly perform and create derivative works from the Customer Materials (as defined in Section 3.2 below) solely to provide the Services to Customer and to otherwise perform its obligations hereunder. In addition, if Customer uses the Transcend Nexus Program, Customer hereby authorizes and permits TRANSCEND to disclose Customer’s email address and the Input Data to those technology and equipment suppliers that Customer selected to include in the Design Package as part of the Transcend Nexus Program.

2.3 Reserved Rights. Except for the limited licenses granted in Section 2, no other license or right shall be deemed granted or implied under this Agreement.

2.4 Restrictions. Except as expressly permitted in this Agreement, Customer may not register or attempt to register or make an application to register with the U.S. Patent and Trademark Office, the US Copyright Office, the UK Intellectual Property Office or any similar domestic or foreign registrar any portion of the Services (including any Content or Documentation).

2.5 Other Restrictions. In addition to the restrictions set forth in Section 2.4, Customer shall not:

(a) provide access to, sell, resell, license, sublicense, rent, lease, lend or transfer the Services, to any other person (including any affiliate) or use the Services to provide any paid or unpaid services on an outsourced basis or otherwise to any other person (including any affiliate), including as an application service provider;

(b) except as may be expressly permitted by applicable law, cause or permit the reverse engineering, translation, disassembly or decompilation of the Services or any software used to provide the Services, or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Services or any software used to provide the Services or a part thereof. If the jurisdiction in which Customer operates expressly permits by applicable law any of the foregoing activities regardless of contractual restriction, then Customer agrees that prior to engaging in any such activity, Customer will first notify TRANSCEND of the desire to reverse engineer the Services and the reason for such reverse engineering, and TRANSCEND may, in its sole discretion, either provide such information or impose reasonable terms and conditions on such use to ensure that TRANSCEND’s proprietary rights are protected;

(c) hide, remove, tamper, amend, alter, obscure or in any manner interfere with any proprietary rights notices (including, without limitation, watermarks or other proprietary rights notices which may appear hidden) contained on or within the Services (including any Content  and Documentation and any copies thereof));

(d) use the Services, or introduce code or other items intentionally to the Services, in a manner that adversely affects the operation of TRANSCEND’s servers or other systems, including any virus, worm, Trojan horse or other components harmful to the Services, TRANSCEND’s network or equipment and other users of the Services;

(e) send, transmit, distribute or store on or through the Services infringing, obscene, threatening, libelous, defamatory or otherwise unlawful or tortious material, including material that violates any third-party rights;

(f) create derivative works based on the Services;

(g) access the Services in order to copy any features, functions or graphics of the Services, except as expressly authorized under this Agreement;

(h) breach or otherwise circumvent any security or authentication measures of the Services;

(i) access, attempt to access, temper with, or use any unauthorized or non-public areas or parts of the Services;

(j) use the Services to post unauthorized commercial communications (such as “spam”) or send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; or

(k) otherwise use the Services in violation of this Agreement or the Documentation.

2.6 Authorized Users. Customer is responsible for ensuring that any use of the Services or any component thereof  by an Authorized User is in compliance with the terms of this Agreement. Customer and its Authorized Users further acknowledge and agree to the privacy policy available at https://transcendinfra.com/privacy-policy/ (the “Privacy Policy”), as such Privacy Policy may be updated from time to time, except to the extent expressly and directly conflicting with the terms of this Agreement, in which case the terms of this Agreement shall govern.

3. INTELLECTUAL PROPERTY OWNERSHIP

3.1 TRANSCEND IP. Subject to the rights and licenses granted by TRANSCEND in Section 2.1, TRANSCEND, its affiliates and its licensors (where applicable) reserve and retain all the rights, title, and interest (including all intellectual property rights) in and to (a) the Services, (b) TRANSCEND’s Confidential Information, (c) all modifications, enhancements or improvements to the items set forth in (a) through (b) (the “Improvements”) and (d) any suggestions, ideas, feedback, recommendations or other information provided by Customer, any Authorized User or any third party relating to the Services (the “Suggestions”). At no time will Customer acquire or retain any title to or ownership to any items set forth in sub-clauses (a) through (d) of the immediately preceding sentence. In the event ownership of any Improvements or Suggestions does not automatically vest with TRANSCEND or if Customer obtains any rights in any part of the Services (including the Transcend Toolshed Applications), Customer hereby irrevocably assigns to TRANSCEND all such rights, title, and interest in and to such Improvements, Suggestions and Services and all intellectual property rights therein. TRANSCEND shall be free to use, disclose, reproduce, license and otherwise distribute the Improvements and Suggestions without any obligations or restrictions of any kind. TRANSCEND and its licensors reserve all rights not expressly granted herein. Customer shall provide TRANSCEND reasonable cooperation and assistance (including executing all documents reasonably necessary) to implement and confirm the terms of this Section 3.1.

3.2 Customer IP. Subject to the rights and licenses granted by Customer in Section 2.2, as between Customer and TRANSCEND, Customer retains its entire right, title, and interest (including intellectual property rights) in and to Customer’s Confidential Information, Input Data, Design Packages, and any other drawing, design, plan, artwork, model, specification, process, software, algorithms or other work product (including, without limitation, all related drafts and preparatory materials) created by Customer using the Services (excluding, for the avoidance of doubt, the Transcend Toolshed Applications which are exclusively owned by Transcend) (the “Customer Materials”).

3.3 No Challenges. Neither party will take any action inconsistent with a party’s ownership and interests set forth in this Section 3 as set forth above or assist any third party in doing the same.

3.4 Notice of Infringement. Customer shall promptly inform TRANSCEND in writing if Customer becomes aware of any infringement or suspected infringement of TRANSCEND’s rights in and to the Services. Customer hereby agrees to cooperate with and reasonably assist TRANSCEND, its counsel and agents in any enforcement or infringement action or other proceeding against any third parties relating to the Services.

4. [RESERVED]

5. REPRESENTATIONS AND WARRANTIES

5.1 By Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

5.2 By Customer. Customer represents and warrants that (a) it is the sole and exclusive owner, or otherwise has the right to use, any Input Data, (b) it has all rights necessary to grant the license set forth in Section 2.2, (c) the Input Data, Customer Materials and other materials uploaded, posted, submitted or otherwise made available by Customer to or through the Services do not and will not infringe, misappropriate or otherwise violate the intellectual property rights of any third party, and (d) the Input Data is accurate, correct and complete.

5.3 By TRANSCEND. TRANSCEND represents and warrants that (a) this Agreement and the Documentation describe in all material respects the applicable administrative, physical, and technical safeguards utilized by TRANSCEND that are designed to protect the security, confidentiality and integrity of the Input Data, and (b) the Services will perform materially in accordance with the published operating and user manuals provided to Customer by TRANSCEND regarding the Services. TRANSCEND is not liable for any breach of the foregoing warranties caused by or resulting from any Input Data, any use of the Services not in accordance with the abovementioned operating and user manuals, or other misuse of the Services by Customer,  For any breach of Section 5.3(b), Customer’s sole and exclusive remedy and TRANSCEND’s sole and exclusive liability is for TRANSCEND, at no additional expense to Customer, to use commercially reasonable efforts to correct, revise or replace any failure of the Services to perform in accordance with the foregoing warranty and, if TRANSCEND fails to cure such breach within thirty (30) days after receipt of written notice thereof, to terminate this Agreement.

5.4 DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN SECTIONS 5.1-5.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ANY OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE OF TRADE.

6. INDEMNIFICATION

6.1 By Customer. Subject to the provisions of this Section 6, Customer agrees to indemnify, hold harmless and defend TRANSCEND, its affiliates, and each of their respective employees, officers, directors, partners, shareholders, agents, successors and permitted assigns (collectively, the “TRANSCEND Indemnified Parties”), from and against any and all liabilities, losses, damages, penalties, costs or expenses (including reasonable attorneys’ fees) ( “Losses”) incurred or sustained by the TRANSCEND Indemnified Parties, or any of them, resulting from any third party action, claim or proceeding (“Claim”) to the extent such Claim arises out of: (a) any violation of applicable law by Customer or an Authorized User; (b) any negligence or willful misconduct in connection with Customer’s or an Authorized User’s performance of this Agreement; (c) taxes assessed or claimed against any of the TRANSCEND Indemnified Parties that are obligations of Customer; (d) Customer’s or an Authorized User’s misuse or misappropriation of the Services; (e) any breach of any representation, warranty, covenant or undertaking made by Customer under this Agreement; (f) Customer’s failure to obtain all rights and consents necessary to provide the Input Data to TRANSCEND or grant the licenses granted in Section 2.2; (g) Customer’s use or incorporation of a Transcend Preliminary Design or any part of the Design Packages in any Facility and/or in any report or other materials; or (h) a material breach of this Agreement by Customer or its Authorized Users.

6.2 By TRANSCEND. Subject to the provisions of this Section 6, TRANSCEND agrees to indemnify, hold harmless and defend Customer, its affiliates, each of their respective employees, officers, directors, partners, shareholders, agents, successors and permitted assigns (collectively, the “Customer Indemnified Parties”), from and against any and all Losses incurred or sustained by the Customer Indemnified Parties, or any of them, resulting from any Claim to the extent such Claim arises out of: (a) any violation of applicable law by TRANSCEND; (b) any negligence or willful misconduct in connection with TRANSCEND’s performance of this Agreement; (c) the actual or alleged infringement, misappropriation of other violation of third party intellectual property rights by the Services when used as authorized in this Agreement; or (d) a material breach of this Agreement by TRANSCEND, provided that TRANSCEND shall have no liability for any Claim based upon (i) use, operation, or combination of the Services with any Customer Materials or any data, documentation, software, or equipment not provided by TRANSCEND if liability would have been avoided but for such use, operation, or combination; (ii) any Transcend Toolshed Application; (iii) Customer’s or its Authorized User’ or agents’ activities after TRANSCEND has notified Customer that TRANSCEND believes such activities may result in infringement; (iv) compliance with Customer’s specifications or instructions; (v) any modifications of the Services not specifically authorized in writing by TRANSCEND; or (vi) any third party software or other third party materials incorporated into or with the Services.

6.3 Procedure. The indemnified party (“Indemnified Party”) shall provide the indemnifying party (“Indemnifying Party”) with prompt written notice of any Claim described in Section 6.1 or Section 6.2 for which it is seeking indemnification. The Indemnified Party shall cooperate fully (at the Indemnifying Party’s expense) with the Indemnifying Party in such defense and will permit the Indemnifying Party to conduct and control such defense and the disposition of such Claim (including all decisions relative to litigation, appeal, and settlement). The Indemnifying Party shall not settle any Claim in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The Indemnified Party’s failure to perform any obligations under this Section 6.3 shall not relieve the Indemnifying Party of its obligations under this Section 6 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense.

7. TERM AND TERMINATION

7.1 Term. This Agreement shall commence on the effective date set out in the Order Form (“Effective Date”) and unless terminated earlier in accordance with this Agreement shall continue for the initial term specified in the Order Form (the “Initial Term”), and thereafter automatically renew for additional, successive renewal periods as specified and for the durations set forth in the Order Form (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice of non-renewal to the other party no later than sixty (60) days prior to the expiration of the then current Initial Term or Renewal Term, as applicable.

7.2 Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party, if the other party materially breaches this Agreement and such breach (a) is incapable of cure; or (b) being capable of cure, remains uncured ninety (90) days after the breaching party receives written notice thereof. Notwithstanding the foregoing, TRANSCEND reserves the right to terminate this Agreement with immediate effect if Customer breaches Section 2 or Section 8.

7.3 Effect of Termination. The licenses granted in Section 2.1 of this Agreement shall immediately terminate on the effective date of expiration or termination of this Agreement, regardless of cause. Sections 2.2, 2.4-2.6, 3, 5.4, 6, 7.3, 8, 9, and 10 shall survive the expiration or any termination of this Agreement. For a period of sixty (60) days following expiration or termination of this Agreement, Customer shall have the right to download all Input Data and Design Packages, and any other drawing, design, or other work product (including, without limitation, all related drafts and preparatory materials) created by Customer using the Services.

8. CONFIDENTIALITY

8.1 Confidential Information.

(a) As used in this Agreement, the term “Confidential Information” shall mean any and all technical and non-technical data or information, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the Disclosing Party (as defined below), or which, by its nature, the Receiving Party (as defined below) would reasonably deem to be confidential or proprietary, including any information that relates to the Disclosing Party’s research, development or business activities, ideas, know-how, inventions, processes, testing methods, specifications, designs, schematics, techniques, technical documentation, marketing or business plans, and financial information. Without limiting the foregoing, the Services, Improvements and Suggestions shall be deemed the exclusive Confidential Information of TRANSCEND.

(b) During the Term and thereafter, each party will maintain in confidence all Confidential Information disclosed to it by the other party (the “Disclosing Party”). During the Term and thereafter, each party receiving Confidential Information from the other party (a “Receiving Party”) agrees not to use any Confidential Information it receives from a Disclosing Party except as expressly authorized by this Agreement, and further agrees not to disclose or grant use of such Confidential Information to any third party without the prior written consent of the Disclosing Party on a case-by-case basis except as otherwise expressly authorized in this Agreement.

(c) In addition, and without prejudice to the provisions of this Section 8.1 above, each Receiving Party will use at least the same standard of care as it uses to protect its own Confidential Information of similar nature to protect the confidentiality of the Confidential Information of the Disclosing Party, and in no event less than reasonable care. Each Receiving Party agrees to promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information.

8.2 Exceptions. The obligations of confidentiality contained in Section 8.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure, other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the Disclosing Party not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of Confidential Information of the Disclosing Party. The restrictions on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that the Receiving Party shall first notify the Disclosing Party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.

8.3 User Name and Password. Customer agrees that information for its account on the Services, including any username and password, is Confidential Information of TRANSCEND and Customer shall not disclose such login information to any third party.

9. LIMITATION OF LIABILITY

EXCEPT FOR (A) CLAIMS ARISING OUT OF A BREACH OF SECTION 8, OR (B) AMOUNTS PAYABLE WITH RESPECT TO INDEMNIFICATION CLAIMS PURSUANT TO SECTION 6, OR (C) A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS: (1) NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) IN NO EVENT WILL TRANSCEND’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE TO TRANSCEND BY THE RESELLER FOR THE SERVICES PROVIDED TO CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY CLAIM OR LIABILITY UNDER THIS AGREEMENT. 

10. MISCELLANEOUS

10.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement including any Non-Disclosure Agreement entered into between the parties with respect to the subject matter of this Agreement except with respect to confidential information disclosure thereunder prior to the Effective Date. The parties agree that any term or condition stated in a purchase order or other order documentation submitted by Customer is void.

10.2 Assignments. TRANSCEND may assign this Agreement, or any of its rights and obligations under this Agreement, to an affiliate of TRANSCEND or to a third-party in connection with a sale or transfer of all or substantially all of its stock or assets or the assets of the business to which this Agreement relates. TRANSCEND may delegate any of its obligations under this Agreement provided that TRANSCEND remains responsible for the performance thereof. Customer shall not assign this Agreement or any of its rights or obligations hereunder to any third party without first obtaining the prior written consent of TRANSCEND, which consent shall not be unreasonably withheld or delayed. The terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. Any assignment in violation of this Section 10.2 shall be null and void from the beginning.

10.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation Internet denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). If a Force Majeure Event continues for longer than thirty (30) days, then TRANSCEND shall have the right to terminate this Agreement immediately upon written notice to Customer.

10.4 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of New York. Each party (a) submits to the jurisdiction of any state or federal court sitting in New York, New York in any action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court and (d) waives any right it may have to a trial by jury with respect to any action or proceeding arising out of or relating to this Agreement. Each party hereby waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other party with respect thereto. Either party may make service on the other party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 10.7. Nothing in this Section 10.4, however, shall affect the right of either party to serve legal process in any other manner permitted by law.

10.5 Amendments. No amendment, modification, waiver, termination or discharge of any provision of this Agreement shall be effective unless the same shall be in writing specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the parties, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given.

10.6 No Other Relationship. Nothing contained herein shall be deemed to create a joint venture, agency, partnership or employer-employee relationship between the parties. Nothing set forth herein shall empower either party to enter into any contracts or commitments in the name of, or on behalf of, the other party, or to bind the other party in any respect whatsoever.

10.7 Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly delivered four (4) Business Days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one Business Day after it is sent for next Business Day delivery via a reputable international courier service, in each case to the intended recipient as set forth below:

If to TRANSCEND:

Transcend Software, Inc.

61 Princeton-Hightstown Road

Suite 3A

Princeton Junction, NJ 08550, USA

notices@transcendinfra.com

Attention: Ari Raivetz

If to Customer, at the address provided by Customer on the Registration Page for the Services.

Either party may also give any notice, request, demand, claim or other communication hereunder using any personal delivery, telecopy, or electronic mail, and the same shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified; or (b) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next Business Day. Either party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other party notice in the manner set forth herein.

10.8 Interpretation; Order of Priority. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing an instrument to be drafted.

10.9 Invalidity. If any provision hereof should be held invalid, illegal, or unenforceable in any respect in any jurisdiction, then, to the fullest extent permitted by law, (a) all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible, and (b) such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any provision hereof prohibited or unenforceable in any respect.

10.10 Waivers. No failure on the part of a party to exercise and no delay in exercising any right, power, remedy, or privilege under this Agreement, or provided by statute or at law or in equity or otherwise, shall impair, prejudice or constitute a waiver of any such right, power, remedy, or privilege or be construed as a waiver of any breach of this Agreement or as an acquiescence therein, nor shall any single or partial exercise of any such right, power, remedy, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, remedy, or privilege.

10.11 Compliance With Laws. Each party covenants and agrees that all of its activities under or pursuant to this Agreement shall comply in all material respects with all applicable laws, rules, and regulations.

10.12 Headings. Headings used herein are for convenience only and shall not in any way affect the construction of, or be taken into consideration in interpreting, this Agreement.