Last updated: February 15, 2022
These Terms of Service (these “Terms”) shall govern the use of the website available at www.transcendh2o.com (together with any successor site, the “Transcend Website”) and the proprietary web-based, hosted platform for the design of critical infrastructure including wastewater and water treatment plants and the provision of various content, products, services and information related thereto, as made available through the Transcend Website (“Transcend Design Generator” and together with the Transcend Website and all other content, tools, features and functionality offered on or through the Transcend Website, the “Services”). The Services are made available by, and you contract with, Transcend Software, Inc., a Delaware corporation with registered offices at 61 Princeton-Hightstown Road, Suite 3A, Princeton, NJ 08550-1120 (“Company”, “we” or “us”).
BEFORE YOU CHECK THE BOX STATING “I HAVE READ AND AGREE TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE”, PLEASE CAREFULLY READ THESE TERMS. BY CHECKING THIS BOX, YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY IN ALL RESPECTS WITH THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, THEN DO NOT USE THE SERVICES.
For purposes of these Terms, “Customer”, “you” and “your” means you as the user of the Services. If you are using the Services on behalf of your employer or other organization, the terms “Customer” and “you” shall be deemed to include such employer or organization. You represent, warrant and undertake that you have the power and authority to bind such employer or organization to these Terms.
1.1. Hosted Service. The Services shall be hosted by Company or its designee and the Services will be made available through the Transcend Website for use by Customer in accordance with these Terms. Customer will have access to Services and its associated features as follows: Customer shall input into the Transcend Design Generator technical parameters and other information necessary to generate a preliminary engineering design for a specific infrastructure project (including but not limited to a water or wastewater treatment plant), including site mapping data (if available), client preferences, and other required and optional information (collectively, the “Input Data”). Once Customer has provided Input Data into the Transcend Design Generator, the Transcend Design Generator automatically generates a complete design package of the applicable facility. Such design package shall include a preliminary design of the proposed facility (the “Preliminary Design”) along with other engineering documents, which may include a process flow diagram, P&ID, single line diagram, equipment list, load list, technology description, Civil BOQ, 3D BIM Model, OPEX calculation, and multiple civil & site drawings (collectively, the “Output Data”), which will be delivered through the Transcend Design Generator. Customer understands that the Preliminary Design is not, in of itself, sufficient to build any facility and is only an approximation of the final design of any proposed facility.
1.2. Support. We will provide support to Customer for the Services from Monday through Friday during the hours of 8:00 am to 4:00 pm Greenwich Mean Time. If you have any support issues, please email us at firstname.lastname@example.org.
1.3 Updates; Upgrades. The Services shall be subject to modification from time to time at our sole discretion, for any purpose we deem appropriate, provided that we will not modify the Services in a manner that materially adversely affects the performance of the Services.
2.1. Registration. To use the Transcend Design Generator, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You may not disclose your Account information to any third party. You must immediately notify us at email@example.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
2.2 Sharing of Account Data. The Transcend Design Generator may include or make available certain proprietary technology and branded equipment that are owned by, and/or branded under the name of, one of our third party partners (“Third Party Materials”) that may be used by you in generating Preliminary Designs. If you select any such Third Party Materials to be included in the Preliminary Design, then we may provide the e-mail address associated with your Account and information relating to the Preliminary Designs (as defined in Section 4.2) and Projects (as defined in Section 4.1) to the applicable third party partner providing the applicable Third Party Materials.
4.1 Rights Granted.
4.1.1. Subject to the terms and conditions of these Terms, the Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, right during the term of this Agreement to (A) access and use the Services, (b) download and copy the instructional and operating or user manuals or any other documentation or information the Company provides to Customer relating to the use of the Services (the “Documentation”), and (c) download, print and use the Output Data and Preliminary Designs, in each case solely for Customer’s personal use and internal business purposes in connection with a Project, including providing services to Customer’s clients. “Project” means the planning, development and design of a specific critical infrastructure project, including but not limited to a water or wastewater treatment plant, for which Customer has submitted Input Data through the Services.
4.1.2. Except for the limited licenses granted in this Section 4.1, no other license or right shall be deemed granted or implied under these Terms.
4.2 Restrictions. Customer may not, and shall not permit any third party to, 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 Preliminary Design, the engineering or architectural works embodied in any Preliminary Design, the Output Data, any content available through the Services (the “Content”) or the Documentation.
4.3 Other Restrictions. In addition to the restrictions set forth in Section 4.2, Customer shall not, and shall not permit any third party to:
a) except in connection with providing services to Customer’s clients as permitted under Section 4.1.1, provide access to, sell, resell, license, sublicense, rent, lease, lend or transfer the Services, the Content, Output Data, the Documentation or any Preliminary Design to any other person (including any affiliate) or use the Services, Content, Documentation, Output Data, or Preliminary Designs 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 the Company of the desire to reverse engineer the Service and the reason for such reverse engineering, and the Company may, in its sole discretion, either provide such information or impose reasonable terms and conditions on such use to ensure that the Company’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, Content, Preliminary Designs, (including any photocopies thereof), Output Data or Documentation (including any photocopies thereof);
d) use the Services, or introduce code or other items to the Services, in a manner that adversely affects the operation of the Company’s servers or other systems, including any virus, worm, Trojan horse or other components harmful to the Services, the Company’s network or equipment and/or 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;
h) breach or otherwise circumvent any security or authentication measures of the Services;
i) access, attempt to access, tamper 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”;
k) use the Services to collect users’ information or content, or generate automated queries (including screen and database scraping, spiders, robots, crawlers, and any other automated activity); or
l) otherwise use the Services, Content, Output Data or any Preliminary Designs in any manner not permitted under these Terms or the Documentation.
4.4. Federal Government End Use Provisions. In relation to Customers who are US government bodies, the Company provides the Services, and any related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as provided in these Terms. The licenses provided hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for transactions with the US Department of Defense, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
5.1. Payment. If you buy or subscribe to any of our paid Services, you agree to pay us the applicable fees and taxes in U.S. Dollars. Failure to pay these fees and taxes will result in the termination of your access to the paid Services. You agree that (a) we may, and we may permit our third party payment processor, to store and continue billing your payment method (e.g. credit card) to avoid interruption of the Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Services in any manner and at any time as we may determine in our sole and absolute discretion. Any price changes or changes to your subscription plan will take effect following reasonable notice to you. All subscriptions are payable in accordance with payment terms in effect at the time the subscription becomes payable. Payment can be made by credit card, debit card, or other means that we may make available. Subscriptions will not be processed until payment has been received in full, and any holds on your account by any other payment processor are solely your responsibility.
5.2 Subscription Renewals and Cancellations. All subscriptions are on an annual basis. You agree that if you purchase a subscription, your subscription will automatically renew annually and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. To avoid future subscription charges, you must cancel your subscription at least 30 days before the subscription period renewal date by emailing firstname.lastname@example.org. You may cancel your subscription at any time; provided, however that you shall remain obligated to pay for the applicable fees for the remainder of the then-term unless you cancel due to (a) Company’s material breach of these Terms or (b) under Section 12.5.
5.3 No Subscription Refunds. Payments for any subscriptions to the Services are nonrefundable.
6.1. Company Intellectual Property. Subject to the rights granted by the Company in Section 4.1, the Company, 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, Content, Documentation, Preliminary Designs and all Output Data, (b) the Company’s Confidential Information (as defined in Section 10.1), (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 or any third party relating to the Services or Content (the “Suggestions”). At no time will Customer acquire or retain any title to or ownership to any assets 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 the Company or if Customer obtains any rights in any Preliminary Design or Output Data, Customer hereby irrevocably assigns to the Company all such rights, title, and interest in and to such Preliminary Design, Output Data, Improvements and Suggestions and all intellectual property rights therein. The Company shall be free to use, disclose, reproduce, license and otherwise distribute the Improvements and Suggestions without any obligations or restrictions of any kind. The Company and its licensors reserve all rights not expressly granted herein. Customer shall provide the Company reasonable cooperation and assistance (including executing all documents reasonably necessary) to implement and confirm the terms of this Section 6.1.
6.2. Customer Intellectual Property. Subject to the rights and licenses granted by Customer in this Section 6.2, Customer reserves and retains its entire right, title, and interest (including intellectual property rights) in and to Customer’s Confidential Information and all Input Data. Notwithstanding the foregoing, Customer acknowledges that the Company will be permitted to use Input Data (a) to the extent needed to provide the Services to Customer and (b) to contact Customer regarding products and services offered by the Company which may be of interest to Customer. Accordingly, Customer hereby grants the Company a non-exclusive, transferable (in accordance with Section 12.10) limited, royalty-free, worldwide license (a) to use, host, store, reproduce, modify Input Data and create derivative works therefrom in connection with the Company’s provision of the Services, including any support services provided by the Company, (b) to communicate, publish, publicly perform, publicly display and distribute Preliminary Designs created from Input Data, and (c) thereafter, solely for compliance with applicable legal and tax requirements and for further development of the Services, except as otherwise prohibited by law. At no time will the Company acquire or retain any title to or ownership of Customer’s Confidential Information or Input Data.
6.3. No Challenges. Neither party will take any action inconsistent with a party’s ownership and interests set forth in this Section 6 as set forth above, or assist any third party in doing the same.
7.1. By Customer. Customer represents and warrants that (a) it is the sole and exclusive owner, or else has the right to use, any Input Data transmitted through the Service, (b) it has all rights necessary to grant the license set forth in Section 6.2, (c) the Input Data 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 or other rights of any third party and (d) the Input Data is accurate, correct and complete.
7.2 Disclaimer. CUSTOMER ACKNOWLEDGES THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING THE SERVICES (INCLUDING ANY CONTENT, OUTPUT DATA, PRELIMINARY DESIGNS AND ANY FACILITY OR PLANT CONSTRUCTED BASED ON THE PRELIMINARY DESIGNS), WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE SERVICES, CONTENT, OUTPUT DATA, PRELIMINARY DESIGNS (OR ANY FACILITY OR PLANT CONSTRUCTED BASED ON THE PRELIMINARY DESIGNS) OR ANY UPDATES OR UPGRADES THERETO, WILL (A) BE ERROR-FREE, (B) MEET CUSTOMER’S REQUIREMENTS, OR (C) BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF THE INPUT DATA, THE SERVICES, THE RESULTS THEREOF AND ANY PRODUCTS OR SERVICES AVAILABLE THROUGH THE SERVICES, INCLUDING THE CONTENT, OUTPUT DATA AND THE PRELIMINARY DESIGNS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTIES WITH RESPECT TO ANY ESTIMATES, FORECASTS, PROJECTIONS OR CALCULATIONS RELATED TO WASTEWATER TREATMENT PLANTS OR ANY PROJECT PROVIDED OR CONTAINED ON THE SERVICES. ALL SUCH ESTIMATES, FORECASTS, PROJECTIONS AND CALCULATIONS ARE ONLY STATEMENTS OF OPINION AND ARE NOT STATEMENTS OF FACT. NO STATEMENT, INFORMATION OR CALCULATION CONTAINED IN THE SERVICES, CONTENT, OUTPUT DATA OR PRELIMINARY DESIGNS IS TO BE CONSTRUED AS INVESTMENT ADVICE OR A RECOMMENDATION REGARDING THE DESIGN, CONSTRUCTION OR INVESTMENT IN ANY WASTEWATER TREATMENT PLANT OR OTHER FACILITY. CUSTOMER TAKES FULL RESPONSIBILITY FOR ITS USE OF THE SERVICES INCLUDING ANY ACTIONS, EVALUATIONS, DEVELOPMENT PLANS AND INVESTMENT DECISIONS, WITHOUT LIABILITY OF ANY KIND TO THE COMPANY OR ANY OF ITS AFFILIATES.
NOTWITHSTANDING ANY OTHER CLAUSE OF THESE TERMS, NOTHING SHALL LIMIT EITHER A PARTY’S LIABILITY FOR FRAUD, FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR ANY OTHER LOSSES WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW.
CUSTOMER UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS SECTION 7.2 IS A FUNDAMENTAL PART OF THESE TERMS AND THAT THE COMPANY WOULD NOT AGREE TO PROVIDE THE SERVICES WITHOUT SUCH DISCLAIMER.
Customer agrees to indemnify, hold harmless and defend the Company, its affiliates, each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns, and all of such persons’ or entities’ successors and assigns (collectively, the “Indemnified Parties”), from and against any and all third party claims, actions, liabilities, losses, damages, costs or expenses incurred or sustained by the Indemnified Parties, or any of them, arising out of: (a) any violation of applicable law by Customer; (b) any negligence or willful misconduct by Customer; (c) taxes assessed or claimed against any of the Indemnified Parties that are obligations of Customer; (d) Customer’s misuse or misappropriation of the Services, Content, Output Data or the Preliminary Designs; (e) a breach of any representation, warranty, covenant or undertaking made by Customer under these Terms; (f) the use, storage or processing of any Input Data provided by or on behalf of Customer; or (g) Customer’s use of any Preliminary Design for any Project and/or incorporation of a Preliminary Design into any Project report or other materials.
9.1. Termination. If you breach any of the provisions of these Terms or if your Account is inactive for a period of 12 months or more, we will notify you at the e-mail address associated with your Account. If you do not cure the applicable breach within 15 days or otherwise take action to re-activate your Account, then the Company may delete your Account and all licenses granted by the Company will terminate automatically. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of the Input Data. The Company shall not be responsible for the failure to delete or deletion of Your Content.
9.2 Consequences of Termination.
a) The license granted in Section 4.1 of these Terms shall immediately terminate on the effective date of termination, regardless of cause.
c) Customer shall, within thirty (30) days after termination of Customer’s Account, return to the Company, or destroy, the Company’s Confidential Information and any copy thereof; provided, however that Customer shall be entitled to continue to use any Preliminary Design except if Customer’s access to the Services is terminated by Company due to Customer’s breach in which case Customer’s right to use the Preliminary Designs shall terminate with immediate effect.
d) The termination of Customer’s Account or Customer’s access to the Services or any license granted herein shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that accrued prior to such termination. In addition, Sections 5 through 12 shall survive any termination of these Terms.
10.1. Confidential Information.
(a) As used in these Terms, 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, or which, by its nature, the receiving party 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, Content, Improvements, and Documentation shall be deemed the exclusive Confidential Information of the Company.
(b) At all times, each party will maintain in confidence all Confidential Information disclosed to it by the other party (the “Disclosing Party”). At all times, 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 these Terms.
(c) Customer shall promptly inform the Company in writing if Customer becomes aware of any infringement or suspected infringement of the Company’s rights in and to the Preliminary Designs. Customer hereby agrees to cooperate with and reasonably assist the Company, its counsel and agents in any enforcement or infringement action or other proceeding against any third parties relating to the Preliminary Designs.
(d) 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. 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 recipient shall first notify the disclosing party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.
10.2. Exceptions. The obligations of confidentiality contained in Section 10.1 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 Section 10; (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.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE TO CUSTOMER OR TO ANY PARTY CLAIMING THROUGH OR UNDER CUSTOMER FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THESE TERMS OR THE PERFORMANCE OR USE OF THE SERVICES AND ANY CONTENT, OUTPUT DATA OR PRELIMINARY DESIGNS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY TO CUSTOMER EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO THE COMPANY HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
NOTWITHSTANDING THE FOREGOING, THE COMPANY SHALL HAVE ABSOLUTELY NO LIABILITY FOR: (A) THE SERVICES DURING ALL PERIODS WHEN CUSTOMER USES THE SERVICE WITHOUT A PAID SUBSCRIPTION, (B) CUSTOMER’S BREACH OR ATTEMPTED BREACH OF THE US EXPORT CONTROL REGULATIONS, AS AMENDED, (C) ANY INPUT DATA OR FOR ANY DEFECTS, ERRORS, OMISSIONS, INACCURACIES OR INCONSISTENCIES IN THE OUTPUT DATA OR PRELIMINARY DESIGNS CAUSED BY OR ARISING FROM OR IN CONNECTION WITH ANY INPUT DATA, (D) ANY DAMAGES WHATSOEVER ARISING OR RESULTING FROM OR IN CONNECTION WITH ANY WASTEWATER TREATMENT PLANT OR PROJECT CONSTRUCTED FROM, BASED UPON, OR THAT OTHERWISE UTILIZES ANY OUTPUT DATA OR PRELIMINARY DESIGN.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR CUSTOMER’S USE OF THE SERVICES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
12.1. Governing Law.
These Terms and any non-contractual obligation arising out of or in connection with these Terms (including any claim or controversy arising out of or relating to these Terms) shall be governed in all respects by the laws of the State of New York, United States of America. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
12.2.1. The parties hereby agree and consent to exclusive jurisdiction and venue in the proper Federal or State court located in New York, New York for the resolution of any controversy or claim directly or indirectly arising from or relating to these Terms and any non-contractual obligation arising out of or in connection with these Terms or, in each case, the breach thereof, including any questions regarding its existence, validity or termination.
12.3. Waiver of Jury Trial.
TO THE EXTENT APPLICABLE, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THESE TERMS OR THE SUBJECT MATTER HEREOF.
12.4. Terms Modification.
The Company may revise these Terms from time to time (the “Revised Terms”) in which case we will update the “Last Updated” date at the top of these Terms and the most current version will always be posted on the Transcend Website and Customer shall be responsible for checking the Transcend Website for such revisions. If any Revised Terms, in the Company’s sole discretion, are material, the Company will notify Customer pursuant to Section 12.6. By continuing to access or use the Services or Content after such Revised Terms become effective, Customer agrees to be bound by the Revised Terms. If Customer does not agree to any material Revised Terms, Customer may terminate its Account within thirty (30) days of receiving notice of the change.
Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of these Terms nor prejudice such party’s rights to take subsequent action.
All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent by first class mail or overnight courier and are deemed given when received. Notices to the Company must be sent to: 61 Princeton-Hightstown Road, Suite 3A, Princeton, NJ 08550-1120. Notices given by Customer under this Section 12.6 may be confirmed by e-mail (which shall not serve as notice) to email@example.com. Notices to Customer will be sent to the address set forth in Customer’s registration form. Notices to Customer may also be sent to the applicable account email address associated with Customer’s Account and shall be deemed given when sent.
In the event that any provision contained in these Terms is determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law.
12.8. 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, pandemics, epidemics, earthquakes and material shortages (each a “Force Majeure Event”). If a Force Majeure Event continues for longer than thirty (30) days, then the Company shall have the right to terminate access to the Services immediately upon written notice to Customer.
12.9. Relationship between the Parties.
The Company and Customer are independent contractors. Nothing in these Terms shall be construed to create a partnership, joint venture, employer/employee or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
These Terms may not be assigned by Customer to any party without the prior written consent of the Company. The Company may freely assign all or part of its rights under these Terms, in whole or in part. Any assignment in violation of this Section 12.10 shall be null and void from the beginning.
12.11. No Third-Party Beneficiaries.
Except for the Indemnified Parties specified in Section 8, no third party will have the right to enforce any provision of these Terms as a third party beneficiary, including pursuant to the Contracts (Rights of Third Parties) Act 1999.
Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by the Company.
12.13. Compliance with Law.
In exercising its rights under these Terms, Customer (a) shall at all times comply with all applicable international, federal, state and local laws, including, without limitation, the Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010, as amended, and any comparable laws in any country from or to which services or goods are provided by Customer or its affiliates, and (b) shall not engage in any illegal or unethical practices. Without limiting the foregoing, Customer agrees that Customer shall not download, export, or re-export any software or technical data received hereunder, regardless of the manner in which received, (i) into, or to a national or resident of, any country to which the United States has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
12.14. Entire Agreement.
These Terms, together with Customer’s Account registration form, constitute the complete and exclusive 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 these Terms, provided that this clause shall not limit any party’s liability for fraudulent misrepresentation. The parties agree that any term or condition stated in a purchase order or other order documentation submitted by Customer (other than Customer’s registration form) is void. Customer agrees that when Customer clicks on an “I agree” icon or similarly worded button, or completes any other electronic action to agree to the terms and conditions of these Terms, Customer’s agreement is legally binding and enforceable and shall be the legal equivalent of Customer’s handwritten signature.