Last Updated: January 4, 2019
These Customer Terms of Service (these “Customer Terms”) are provided by Transect LLC (“Transect”) to describe the rights and responsibilities of Customer when accessing and using Transect's online software application offered via Transect's website, located at https://www.transect.com, and any associated websites linked to https://www.transect.com by Transect (including, without limitation, any linked API URLs) (collectively, the “Site”) or via any online or downloadable software application referencing these Customer Terms (collectively, the “Application”), and the services Transect provides via the Application (collectively, the Site, the Application and such services, the “Service”).
Transect and Customer may be referred to herein, individually, as a “Party” and, together, as the “Parties.” Capitalized terms used herein will have the respective meanings given to such terms in Exhibit A to these Customer Terms.
PLEASE READ THESE CUSTOMER TERMS CAREFULLY. BY REGISTERING FOR A TRANSECT CUSTOMER ACCOUNT (“CUSTOMER ACCOUNT”) OR OTHERWISE BY ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO ENTER INTO THESE CUSTOMER TERMS ON BEHALF OF YOURSELF INDIVIDUALLY OR ON BEHALF OF THE ORGANIZATION IDENTIFIED AS “CUSTOMER” AT THE ACCOUNT REGISTRATION STAGE, AS APPLICABLE (“CUSTOMER”), AND YOU HEREBY REPRESENT AND WARRANT TO TRANSECT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE CUSTOMER TERMS, AND (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TRANSECT. FURTHER, IF YOU ARE ENTERING INTO THESE CUSTOMER TERMS ON BEHALF OF AN ORGANIZATION AS CUSTOMER, YOU HEREBY REPRESENT AND WARRANT TO TRANSECT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE CUSTOMER TERMS ON BEHALF OF SUCH ORGANIZATION AND TO BIND SUCH ORGANIZATION TO ALL TERMS AND CONDITIONS OF THE AGREEMENT. THE TERM "YOU" REFERS TO THE INDIVIDUAL WHO IS REGISTERING FOR THE CUSTOMER ACCOUNT, THEREBY ACCEPTING THESE CUSTOMER TERMS ON BEHALF OF CUSTOMER. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE CUSTOMER TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
- Account Admin; Customer Account.
- Account Admin. The individual who registers for the Customer Account is an Authorized User with administrative access to the Customer Account (an “Account Admin”), as further described in the Support Documentation.
- Customer Information. Customer hereby represents that, at all times, the information provided when registering for the Customer Account (“Customer Information”) is accurate, complete and up to date, and will be maintained as such. Customer may at any time change, correct or remove from the Customer Account any Customer Information, either directly via Service or by contacting Transect at email@example.com.
- Customer Account Security. Customer is exclusively responsible for maintaining the confidentiality of the username, password and any other access credentials for the Customer Account (collectively, the “Customer Access Credentials”). Customer is further responsible for all activities of Authorized Users that occur within any part of the Service when accessed using the Customer Access Credentials. Customer will not share, let others access or use, or do anything else that might jeopardize the security of the Customer Access Credentials. In the event that any of the Customer Access Credentials are lost or stolen or Customer becomes aware of any unauthorized use of the Customer Access Credentials, or of any other breach of security in relation to the Service, Customer agrees to notify Transect immediately.
- Authorized Users; User Accounts.
- Authorized Users. Customer acknowledges that, by default, any individual with an e-mail address at the Customer Domain (each an “Internal User”) is an Authorized User and will have the ability to create a User Account under the Customer Account; provided, however, that Customer may, at any time, update its account settings to limit Authorized Users in accordance with any alternative authorization method then available in the account settings option. Customer further acknowledges that its obligations under the Agreement with respect to Authorized Users will at all times apply to any Authorized User who is not an Internal User (e., an individual outside of Customer's organization, who does not have an e-mail address at the Customer Domain) but who has received invitation from Customer to register for a User Account under the Customer Account (each an “External User”). Customer may have up to one hundred (100) Authorized Users under the Customer Account at any given time during the Term.
- User Accounts. In order to access the Service, each Authorized User will be required to first register, via the Service, for a user account (each a “User Account”) and agree to the User Terms. Customer acknowledges that the Service is not intended for and should not be used by anyone under the age of sixteen (16). Customer must therefore ensure that all Authorized Users are at least sixteen (16) years of age.
- Responsibility for Compliance by Authorized Users. Customer will inform all Authorized Users of any Customer policies and practices relevant to their use of the Service and will ensure all Authorized Users' compliance with the Agreement, including but not limited to the User Terms and Transect's Acceptable Use Policy. Customer is responsible and liable for any and all access to and use of the Service and Documentation by Authorized Users, whether directly or indirectly, intentionally or unintentionally, and whether such access or use is permitted by or in violation the Agreement. Without limiting the generality of the foregoing, Customer is responsible for any act or omission of an Authorized User that would constitute a breach of any provision of the Agreement if such act or omission, if done by Customer, would be deemed a breach of the Agreement by Customer.
- Corrective Action and Notice. If Customer becomes aware of any actual, threatened or suspected activity of an Authorized User that is in violation of the Agreement, Customer will, and will cause its Authorized Users to, immediately (i) notify Transect of such activity, and (ii) take all reasonable and lawful measures within their respective control that may be necessary to stop such activity and to mitigate its effects.
- Access; Use.
- Access to and Use of the Service. Subject to Customer's payment of all Fees due hereunder (if any) and Customer's compliance with all terms of the Agreement, Transect hereby grants Customer the right to access and use the Service, and to grant Authorized Users the right to access and use the Service, in each case in accordance with the Agreement. Except for the foregoing limited rights, Customer is granted no other rights in or to any part of the Service.
- Access to and Use of the Documentation. Subject to Customer's payment of all Fees due hereunder (if any) and Customer's compliance with all terms of the Agreement, Transect hereby grants to Customer a limited, non-exclusive, non-sublicensable (other than to Authorized Users), non-transferable license to use and reproduce the Documentation during the Term solely for Customer's individual or internal business purposes in connection with its use of the Service.
- Restrictions on Use. Customer will not permit any Authorized User or third party to, use the Service or the Documentation for any purpose beyond the scope of rights granted to Customer under Section 3(a) or Section 3(b), respectively. Without limiting the generality of the foregoing, except as may be expressly permitted by the Agreement, Customer will not permit any Authorized User or third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any part of the Service; (ii) copy, modify, translate or create derivative works of the Service or Documentation, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available to third parties the Service or the Documentation, in whole or in part; (iv) use the Service for timesharing purposes or otherwise for the benefit of any party other than Customer; (v) remove any proprietary notices from the Documentation; (vi) interfere with or disrupt the integrity or performance of the Service; (vii) introduce any open-source software into the Service; (viii) attempt to gain unauthorized access to the Service or their related systems or networks; (ix) use the Service or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law; (x) use the Service or Documentation in any manner for purposes of competitive analysis of the Service or the Documentation in connection with the development, provision or use of a competing service or product, or for any other purpose that might be to Transect's detriment or commercial disadvantage; or (xii) attempt to do any of the foregoing. Any breach of this Section 3(c) will entitle Transect to immediately terminate the Agreement for cause pursuant to Section 17(b)(ii).
- Subscription Term; Subscription Periods. The term of any Subscription purchased by Customer (the “Subscription Term”) will begin on the date Customer purchased such Subscription and will continue until the last day of any Subscription Period during which Customer provided a cancelation notice to Transect in accordance with Section 4(c). Each recurring period of any Subscription Term (eg., monthly, annually), as stated on the applicable Order Form (each a “Subscription Period”) will begin on the date Customer purchased the Subscription and will automatically renew on the same day of each subsequent period; provided, however, that, if there is no corresponding day within any such period, the subsequent Subscription Period (and only such subsequent Subscription Period) will begin on the first day of the following month. For example, if Customer purchases a monthly recurring Subscription on January 31, each subsequent Subscription Period will begin on the 31st day of each subsequent month for months with 31 days, but for months with less than 30 days, the subsequent Subscription Period will begin on the first day of the following month (e.g., each Subscription Period would begin on January 31, March 1, March 31, May 1, May 31, July 1, July 31, August 31, October 1, October 31, December 1, and December 31).
- Upgrades. Customer may upgrade an active Subscription at any time during the Subscription Term (each an “Upgrade”) by providing advance notice to Transect via e-mail at firstname.lastname@example.org or by any other method provided by Transect. Unless otherwise agreed upon between Transect and Customer, effective immediately upon receipt of such notice by Transect, the Subscription Term for Customer's previous Subscription level will immediately terminate and a new Subscription Term for the Upgraded Subscription level will immediately commence. Any pre-paid Fees for any portion of final Billing Period of such terminated Subscription remaining upon such termination will be credited toward the Fees due for the Upgraded Subscription.
- Cancelations. Customer may cancel any Subscription by providing advance notice to Transect via e-mail at email@example.com or by any other method agreed to by Transect, and such cancelation will become effective as of the date such notice is received by Transect. In no event will cancelation of a Subscription entitle Customer to any refund of Fees paid in advance for the then-current Subscription Period or relieve Customer of the obligation to pay any past-due Fees owed in connection with such Subscription, and Transect will have the right to continue to charge, or have charged by its third-party payment processor, Customer's stored payment method or otherwise invoice Customer for any such past-due Fees or any Fees owed for the remainder of any Subscription Period canceled prior to its expiration.
- Service Suspensions.
- Right to Suspend. Notwithstanding anything to the contrary in the Agreement, Transect reserves the right to temporarily suspend Customer's and any Authorized User's access to the any portion or all of the Service (a “Service Suspension”) if Transect reasonably determines that (i) any Authorized User's use of the Service is in violation of the Agreement; (ii) there is a threat or attack on the Service or any other Transect Technology; (iii) Customer's or any Authorized User's use of the Service disrupts or poses a security risk to the Service or any other Transect Technology or to the rights or property of any other customer or vendor of Transect; (iv) any Authorized User is using the Service or any other Transect Technology for fraudulent or illegal activities; (v) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (vi) Transect's provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (vii) any vendor of Transect has suspended or terminated Transect's access to or use of any Third-Party Services required to enable Transect to provide the Service; or (viii) Customer is delinquent in its payment of Fees, as set forth in Section 8(c).
- Notice of Suspension. Transect will use commercially reasonable efforts to contact Customer prior to or contemporaneously with any Service Suspension; provided, however, that Transect's exercise of its rights under Section 5(a) is not conditioned upon Customer's receipt of any such notification.
- Resumption of Service. Following any Service Suspension, Transect will use commercially reasonable efforts to reinstate access to the Service as soon as reasonably possible following any determination by Transect, in its sole discretion, that the event giving rise to such Service Suspension is cured. Transect will use commercially reasonable efforts to promptly update Customer regarding any such resumption of access.
- Right to Terminate. In the event of repeated Service Suspensions, regardless of the same or different cause or whether the cause is ultimately cured, Transect may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach of the Agreement, and Transect will have the right to immediately terminate the applicable User Account or the Agreement in its entirety pursuant to Section 17(b)(ii), without incurring any liability to Customer or such Authorized User therefor.
- Disclaimer of Liability; Reservation of Rights. Notwithstanding anything to the contrary in the Agreement, (i) Transect will not be liable to Customer, any Authorized User or any other third party for any damage, liabilities, losses (including but not limited to any loss of Customer Data or any other data or information or loss of profits) or any other consequences that Customer, any Authorized User or any third party may incur, directly or indirectly, as a result of a Service Suspension; and (ii) any Service Suspension is in addition to any other remedies that Transect may have under the Agreement or otherwise, including but not limited to termination of the Agreement for cause.
- Projects; Transect Reports.
- Projects; Project Data. Customer acknowledges that any Internal User may create one or more projects via the Service (each a “Project”). The Internal User who created such Project (the “Project Owner”) must provide certain Project-specific data and other information at the Project creation stage (the “Project Data”) in order to complete any Report Orders in connection with such Project.
- Report Orders. The Project Owner may order one or more Transect Reports in connection with a Project, either as a Free-Report Order or a Single-Report Order or pursuant to a Subscription or (each a “Report Order”), as follows.
- Free Report Orders. Prior to completing a Single Report Order or purchasing a Subscription, Transect may provide Customer with the ability to order and receive a single Transect Report free of charge (a “Free-Report Order”).
- Single Report Orders. Customer acknowledges that any Authorized User with access to a Project may order one or more Transect Reports for the Project on a per-report basis (a “Single-Report Order”) and that Customer will be responsible for any and all payment obligations incurred in connection with such Report Order.
- Subscriptions. If Customer has purchased a Subscription, Customer will have the right to order an unlimited number of Transect Reports each month. Notwithstanding the foregoing, in the event that Transect determines, in Transect's sole discretion, that Customer has received an unreasonably high number of Transect Reports in any given month during the Subscription Term, Transect reserves the right to charge Customer for any additional Report Orders made during such month as Single-Report Orders.
- Transect Reports. Upon the completion of a Report Order by the Project Owner, subject to Customer's payment of all Fees due therefor, Transect (via the Service) will process and analyze the Project Data and will generate and provide Customer with a report (each a “Transect Report”) setting forth the results of such processing and analysis (the “Report Results”). Notwithstanding any statement appearing on the any part of the Service or any Documentation regarding the timeframe for delivery of any Transect Report, in no event will Transect be liable to Customer or any Authorized User in the event a Transect Report is not delivered to Customer within any particular delivery timeframe. Customer acknowledges that each Transect Report and any Report Comments provided thereto may be accessed and viewed by any Authorized User, including External Users, granted access to the relevant Report, as further set forth in the Support Documentation.
- Responsibility for Customer Data. Except as set forth in Section 7(c), Customer is exclusively responsible for all Customer Data (including, but not limited to, the User-Generated Content), including with respect to its use, accuracy, quality, and reliability. Customer will comply at all times, and with respect to User-Generated Content will ensure that Authorized Users comply at all times, with all terms of the Agreement applicable to Customer Data, including but not limited to this Section 7. Nothing in the Agreement requires Transect to verify, authenticate, monitor, police or remove any Customer Data.
- Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives of the Customer Data. Transect will have no obligation to store, backup, archive or otherwise maintain any Customer Data. Transect hereby disclaims any and all liability to Customer or any third party for any LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
- Data Security. Transect will maintain administrative, physical, and technical safeguards, at a level no less protective than those customary in the industry, including but limited to measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by Transect personnel. Before sharing Customer Data with any third-party service provider, Transect will ensure that such third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of, and preventing unauthorized access to, such Customer Data. Transect has no responsibility to maintain the security or protection of any Customer Data when not in Transect's possession or control.
- Prohibited Content. Customer acknowledges that the Service is not designed with security and access management for processing the following categories of information: (i) any personal information that imposes specific data security obligations on the processor of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (ii) data that is classified and/or used on the United States Munitions list, including software and technical data; (iii) articles, services, and related technical data designated as defense articles or defense services; and (iv) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Content”). Customer will not permit any Authorized User or other person or entity to Transect provide any Prohibited Content to, whether directly or via the Service. Customer is solely responsible for reviewing all Customer Data and will ensure that no Customer Data constitutes or contains any Prohibited Content.
- Fees; Payment Terms.
- Fees. Customer agrees to pay Transect, without offset or deduction, any and all fees due for Subscriptions and for Single-Report Orders (collectively, the “Fees”), as further set forth in this Section 8. Customer will pay all Fees in the manner indicated on the Order Form, subject to Transect's approval where specified (g., with respect to invoicing).
- Invoicing. If Transect has approved Customer's request to be invoiced for Fees due, Transect will invoice Customer as follows: (i) for Subscriptions, upon the initial purchase of the Subscription and then on the first day of the next Subscription Period; and (ii) for Single-Report Orders, immediately upon completion of the Report Order by an Authorized User. All invoices will become immediately payable upon receipt, and Customer will pay each invoice within thirty (30) days following receipt.
- Late Payments. If Customer fails to pay when due any amount owed to Transect hereunder, without limiting Transect's other rights and remedies, (i) Transect may charge interest on the past due amount at the rate of one and one half percent (1.5%) per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer will reimburse Transect for all reasonable costs incurred by Transect in collecting any late payments or interest, including reasonable attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Transect may impose a Service Suspension until such amounts are paid in full, as further set forth in Section 5(a), without incurring any liability to Customer.
- Subscription Billing Periods. Customer will be billed for Fees due for an active Subscription on a recurring basis. Each recurring billing period of any Subscription Period (g., monthly, annually), as stated on the applicable Order Form (each a “Billing Period”) will begin on the date Customer purchased the Subscription and will automatically recur on the same day of each subsequent period; provided, however, that, if there is no corresponding day within any such subsequent period, the subsequent Billing Period (and only such subsequent Billing Period) will begin on the first day of the following month. For example, if Customer purchases an annual recurring Subscription on January 31, 2019, and is billed the Fees on a monthly basis, each Billing Period will begin on the 31st day of each subsequent month for months with 31 days, but for months with less than 30 days, the subsequent Billing Period will begin on the first day of the following month (e.g., the Fees would be billed on January 31, March 1, March 31, May 1, May 31, July 1, July 31, August 31, October 1, October 31, December 1, and December 31).
- Automatic Payments. If Customer has authorized automatic payments for payment of Fees due, Customer is responsible for providing Transect with complete, accurate, and up-to-date payment, billing and contact information and will promptly notify Transect of any changes to such information during the Term. Automatic payments will be processed as follows: (i) for Subscriptions, upon the initial purchase of the Subscription and then on the first day of each subsequent Billing Period during the Subscription Term; and (ii) for Single-Report Orders, immediately upon completion of such Report Order by an Authorized User. Customer hereby authorizes Transect to charge, or to authorize (on Customer's behalf) any third-party payment processor to charge such credit card for any and all Fees due, upon the date such Fees become due and payable under the Agreement. If Customer's credit card provided for automatic payments is declined for any reason when attempted to be processed, Transect reserves the right, in its sole discretion, to suspend Customer access to the Service, without incurring any liability to Customer, until such Fees are paid in full.
- Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Transect's income.
- Third-Party Services; Third-Party Links.
- Third-Party Services. The Service includes and makes use of certain functionality and services provided by third parties that allow Transect to enhance the Service, including but not limited to the incorporation within the Service and any Transect Reports, of maps, geocoding, places and other content from third parties (collectively, the “Third-Party Services”). Customer's use of any Third-Party Services is subject to the applicable third party's then-current terms and conditions. By using any such Third-Party Services, Customer acknowledges that it may be agreeing to be bound by such third-party terms and conditions.
- Disclaimer. CUSTOMER AGREES THAT TRANSECT WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES OR THIRD-PARTY SERVICES, OR ANY DEALINGS OR COMMUNICATIONS WITH THIRD PARTIES VIA THE SERVICE, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH CUSTOMER'S USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF THE THIRD-PARTY OWNER OR OPERATOR OF ANY SUCH THIRD-PARTY SITE OR THIRD-PARTY SERVICE. Any reference made by Transect, whether as included within a Transect Report or otherwise via the Service, regarding any product, service, publication, institution, or organization of any third-party entity or individual does not constitute or imply Transect's endorsement or recommendation thereof.
- Technical Support.
Subject to the Agreement, Transect will use commercially reasonable efforts to respond to Customer requests for assistance with any technical issues encountered when accessing or using the Service and to remedy such issues. Customer acknowledges, however, that Transect has no obligation to provide support or assistance to Customer with respect to any such inquiry or request that relates to any subject matter other than unavailability of the Service, errors in functionality of the Service, or other purely technical issues.
- Confidential Information Defined. From time to time during the Term, either Party (the “Disclosing Party”) may disclose or otherwise make available to the other Party (the “Receiving Party”) certain information that would reasonably be understood to be confidential given the nature of such information or the circumstances surrounding its disclosure about its business affairs, products, technology, trade secrets, third-party confidential information, and any other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form of media in written or electronic form, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party, as demonstrated by the Receiving Party's records in existence at the time of such development.
- Nondisclosure and Nonuse. The Receiving Party will not disclose the Disclosing Party's Confidential Information to any person or entity, except to the Receiving Party's affiliates and such Party's and its affiliates' employees, agents or representatives who have a need to know such Confidential Information, and will use the Confidential Information of the Disclosing Party only as and to the extent necessary for the Receiving Party to exercise its rights or perform its obligations hereunder. Each Party's obligations of non-disclosure and nonuse with regard to Confidential Information hereunder are effective as of the date of first disclosure to either Party of any Confidential Information of the other Party, whether prior to or during the Term, and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, that, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- Compelled Disclosures. Notwithstanding anything to the contrary in Section 11(b), each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Agreement, including to make required court filings.
- Proprietary Rights.
- Transect Trademarks. TRANSECT is a registered U.S. trademark owned by Transect. Any and all Marks shown on the Service or Documentation are protected under Intellectual Property Rights of Transect or of the respective owners of such Marks.
- Copyrighted Material. Unless otherwise specified in the Agreement, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Transect, Copyright © 2016-2019 Transect LLC. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law or otherwise permitted under the Agreement, any reproduction, distribution, modification, retransmission, or publication of any such copyrighted material is strictly prohibited.
- Transect Technology. Customer acknowledges that (i) as between Customer and Transect, Transect owns and retains all right, title, and interest, including all Intellectual Property Rights, in and to the Transect Technology; and (ii) with respect to Third-Party Sites and Third-Party Services, the applicable third-party providers, owners and operators own and retain all right, title, and interest, including all Intellectual Property Rights, in and related to their respective Third-Party Sites and Third-Party Services.
- Customer Data. As between Transect (on the one hand) and Customer and its Authorized Users (on the other hand), Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data, subject to the limited license rights granted to Transect below. Customer (on behalf of itself and all Authorized Users) hereby grants to Transect:
- a limited, non-exclusive, fully paid-up, royalty-free, worldwide license during the Term to access, process, reproduce, distribute, perform, export, display and otherwise use the Customer (A) as may be reasonably necessary for Transect to provide, maintain and update the Service, including to prevent or address service, security, support or technical issues; (B) as required by applicable law or regulation; and (C) as may be expressly permitted in writing by Customer; and
- a limited, non-exclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data in connection with Transect's internal business purposes only and to share the Customer Data with third parties, provided that such Customer Data is shared in an aggregated an anonymized manner.
Customer represents and warrants that it has secured from all Authorized Users all rights in and to the Customer Data as may be necessary to grant Transect the foregoing license rights.
- Feedback. Customer or any Authorized User may send or transmit to Transect, whether by mail, e-mail, telephone, via the Service or otherwise, any communications or materials, including but not limited to any comments, questions, suggestions, or the like, suggesting or recommending changes or improvements to the Service or any part thereof, or to any other Transect Technology, including without limitation, new features or functionality thereof (“Feedback”). Customer hereby assigns to Transect, on Customer's behalf and on behalf of its Authorized Users, employees, contractors, agents and other representatives, all right, title, and interest in and to the Feedback, including any ideas, know-how, concepts, or techniques contained in the Feedback, and any and all Intellectual Property Rights therein. Transect will have no obligation of attribution or compensation to Customer or any other party with respect thereto, although Transect is not required to use any Feedback.
- Report Results. As between Customer and Transect, Transect will own all right, title and interest in and to the Report Results, including all content included therein. Subject to Customer's payment of all applicable Fees, if any, Transect hereby grants to Customer a limited, non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, and share (internally within the organization) the Report Results, solely for Customer's internal business purposes (including, for the avoidance of doubt, sharing such Report Results with third parties in connection with an actual or potential business transaction related to such Project).
- Reservation of Rights. Except for the limited rights and licenses expressly granted to Customer under the Agreement, nothing herein is intended or will be construed to grant, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Transect Technology, and Transect reserves all other rights, express or implied.
- Limited Warranty; Disclaimers.
- Limited Warranty. During the Term, Transect will use commercially reasonable efforts, consistent with prevailing industry standards, to provide and maintain the Service in a manner that minimizes errors and interruptions thereto and to provide reasonable technical support to Customer in accordance with Section 10. Customer acknowledges, however, that the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Transect or by its third-party service providers, or due to any other cause beyond Transect's reasonable control. Transect will use reasonable efforts to provide Customer with advance notice (e-mail suffices) of any scheduled disruption to the Service.
- Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 13(a), THE SERVICE AND OTHER TRANSECT TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND TRANSECT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TRANSECT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TRANSECT MAKES NO WARRANTY OF ANY KIND THAT THE TRANSECT TECHNOLOGY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY THIRD-PARTY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED IN THE AGREEMENT.
- No Professional Advice. The information provided on or through the Service, including but not limited to information provided via the Report Results and any other information provided to Customer via the Service, and any interpretations of applicable laws or regulations provided therein, is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed or otherwise knowledgeable in the applicable area before acting upon any information provided on or through the Service.
- Representations and Warranties.
- Mutual Representations. Each Party hereby represents and warrants to the other Party that (i) such Party has the right, power, and ability to enter into and perform under the Agreement; (ii) such Party has obtained all necessary rights to grant the rights and licenses granted to the other Party under the Agreement; (iii) such Party's performance under the Agreement will comply with all applicable laws and regulations.
- Transect Representations. Transect hereby represents and warrants to Customer that (i) the Service will at all times comply with all applicable laws and regulations; and (ii) Transect will at all times during the Term, maintain all licenses, permits and other permissions necessary to provide the Service.
- Customer Representations. Customer hereby represents and warrants to Transect that (i) the individual accepting the terms of the Agreement on behalf of Customer is authorized to bind Customer to the terms and conditions provided herein; (ii) Customer's performance of its obligations under the Agreement does not and will not conflict with any obligation of Customer under an agreement between Customer and a third party; and (ii) Customer owns or otherwise has (and, prior to Transect's receipt thereof, will have) the necessary rights and consents in and to all Customer Data, so that Transect's receipt, storage, and processing of Customer Data in accordance with the Agreement is in compliance with applicable law and does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any person or entity anywhere in the world.
- Transect Indemnification. Transect will defend and hold harmless Customer and its affiliates and each of their respective officers, directors, members, shareholders, employees, contractors, agents and representatives from and against any and all claim, suit, action, or other proceeding brought by a third party (a “Claim”) alleging that the Service, the Documentation, or any Transect Report, or any use thereof in accordance with the Agreement, infringes, misappropriates or otherwise violates a valid third-party Intellectual Property Right. Transect will further indemnify Customer for any and all losses, damages, liabilities, costs, fees (including reasonable attorneys' fees) and penalties (collectively, “Losses”) incurred by Customer in connection with any such Claim. Notwithstanding the foregoing, Transect will have no obligation under this Section 15(a) to the extent such Claim is based upon or arises from (i) Customer Data or any Third-Party Services or Third-Party Sites; or (ii) any modification, combination or development of the Service that is not performed by Transect, including in the use of any API. This Section 15(a) states Transect's sole liability and Customer's exclusive remedy with respect to any allegation that the Service, the Documentation, or any Transect Report, or any use thereof, infringes, misappropriates or otherwise violates a third-party Intellectual Property Right.
- Customer Indemnification. Customer will defend and hold harmless Transect and its affiliates and each of their respective officers, directors, members, shareholders, employees, contractors, agents and representatives from and against any Claim based upon or arising from (i) the Customer Data, or any use of the Customer Data in accordance with the Agreement, including but not limited to any allegation that the Customer Data infringes, misappropriates or otherwise violates a third-party Intellectual Property Right; or (ii) Customer's or any Authorized User's (A) negligence or willful misconduct; (B) use of the Service or Documentation in a manner not authorized by the Agreement; (C) use of the Service in combination with data, software, hardware, equipment or technology not provided by Transect or authorized by Transect in writing; or (D) any modification, combination or development of the Service that is not performed by Transect, including in the use of any API. Customer will further and will indemnify Customer for any and all Losses incurred by Transect in connection with any such Claim.
- Indemnification Procedure. The Parties' respective obligations under this Section 15 are expressly conditioned upon the Party seeking indemnification hereunder (the “Indemnitee”) (i) providing the other Party (the “Indemnifying Party”) with prompt written notice of the relevant Claim, (ii) permitting the Indemnifying Party to assume the exclusive defense and control thereof, and (iii) providing any assistance reasonably requested by the Indemnifying Party in connection with its defense and settlement of such Claim. The Indemnitee will, at its sole cost and expense, have the right to be represented by counsel of its choosing in connection with the Indemnifying Party's defense of any Claim. The Indemnifying Party will not, without the express written consent of the Indemnitee (not to be unreasonably withheld), settle any Claim if (A) the third party asserting the Claim is a government agency, (B) the settlement arguably involves the making of admissions by such Indemnitee, (C) the settlement does not include a full release of liability for the Indemnitee, or (D) the settlement includes any terms other than a full release of liability for the Indemnitee and a payment of money.
- Limitations of Liability. OTHER THAN IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL THE FOREGOING LIMITATION LIMIT CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. The Parties agree that the provisions of this Section 16 represent a fair allocation of the Parties' respective risks under the Agreement, and the Parties have relied on these limitations in determining whether to enter into the Agreement and the agreed-upon
- Term; Termination.
- Term; Termination. The term of the Agreement will commence on the Effective Date and will continue until terminated by either Party in accordance with this Section 17(a) (the “Term”). The Agreement may be terminated as set forth below. Termination of the Agreement will terminate the Customer Account and any Subscription then in effect.
- For Convenience. Customer may terminate the Agreement immediately upon notice to Transect that Customer wishes to close the Customer Account.
- For Cause. Either Party may terminate the Agreement upon notice to the other Party if such other Party commits a material breach of any provision hereof, and such breach (A) with respect to Transect as the terminating Party, grants Transect the right to immediately terminate pursuant to either Section 3(c) or Section 5(d); (B) is incapable of cure; or (C) being capable of cure, remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach.
- Automatic Termination. These Terms will terminate automatically if the other Party (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon termination of the Agreement, Transect will close the Customer Account and may immediately disable Customer's and its Authorized Users' access to the Service, and Customer will, and will instruct its Authorized Users to, immediately cease using the Service and all other Transect Technology. No termination of the Agreement will (i) prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party's acts or omissions prior to the effective date of such termination; (ii) relieve Customer of its obligation to pay any Fees that have accrued or have become payable to Transect under the Agreement as of such date; or (iii) entitle Customer to any refund of Fees paid up to such date. Notwithstanding the foregoing, in the event of Customer's termination for cause pursuant to Section 17(b)(ii), Transect will refund Customer any pre-paid Fees covering any portion of a Subscription Period remaining upon the effective date of such termination. In no event, however, will any such termination relieve Customer of the obligation to pay any Fees payable to Transect for any period prior to the effective date of such termination. In addition, following any such termination, Transect will have no obligation to store or provide to Customer any Customer Data and, unless legally prohibited, may delete any and all Customer Data then stored in Transect's systems or otherwise in Transect's possession or control.
- Survival. This Section 17(d) and Sections 2(b), 3(c), 4(c), 5(e), 7, 8, 9, 11–16, 17(c), and 18 – 20 will survive any termination of the Agreement.
- Term; Termination. The term of the Agreement will commence on the Effective Date and will continue until terminated by either Party in accordance with this Section 17(a) (the “Term”). The Agreement may be terminated as set forth below. Termination of the Agreement will terminate the Customer Account and any Subscription then in effect.
- Electronic Communications. By registering for a Customer Account, Customer hereby consents to receiving electronic communications from Transect. These electronic communications may include notices about applicable Fees and other charges and certain transactional and other information concerning or related to the Services. Customer acknowledges that these electronic communications are necessary to Customer's relationship with Transect. Customer further agrees that any notices, agreements, disclosures or other communications that Transect sends Customer electronically will satisfy any communication requirements under applicable law or under the Agreement, including that such communications be in writing.
- Publicity. Customer hereby grants Transect the right to use Customer's company name and logo as a reference for marketing or promotional purposes on any part of the Service and in any other public or private communications with Transect's existing or potential customers, subject to Customer's standard trademark usage guidelines as may be provided to Transect in writing, in advance from time-to-time.
- Notices. Except as otherwise set forth herein, all notices under the Agreement must be sent by e-mail; provided, however, that Transect may provide notice to Customer via the Service. In order to be effective, notices to Transect must be sent to firstname.lastname@example.org, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to email@example.com. Any notice provided hereunder will be deemed to have been duly given (i) the day after it is sent, in the case of notices sent via e-mail; and (ii) the same day, in the case of notices provided to Customer through the Service.
- Force Majeure. In no event will either Party be liable to the other Party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement (except for any obligation to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- California Consumer Notice. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by Transect, Transect LLC PO Box 680 La Grange, Texas 78945. If Customer has a question or complaint regarding any part of the Service, please contact Transect customer service at firstname.lastname@example.org. Customer may also contact Transect by writing to: Transect LLC, P.O. Box 680 La Grange, Texas 78945. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
- Export Regulation. The Service may utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export, or release the Service or the underlying Technology to, or make the Service or the underlying Technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by applicable law, rule, or regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the Technology available outside the United States.
- Modifications. Transect may modify or replace these Customer Terms at any time. If Transect makes any material change to these Customer Terms, Transect will provide Customer with notice prior to such change taking effect, in any manner deemed reasonable by Transect, in its reasonable discretion, based upon the nature of such change and its materiality, including, but not limited to, by e-mailing Customer at the e-mail address associated with the Customer Account or by messaging Customer through the Service. Customer can review the then-current version of the Customer Terms at any time by visiting this page and by visiting the then-current versions of the other pages that are referenced in these Customer Terms. The materially revised version of these Customer Terms will become effective on the date set forth in the notice provided to Customer, and all other changes will become effective upon posting of the revised Customer Terms. If Customer (or any Authorized User) accesses or uses the Service after the effective date of any revised terms and conditions of a revised version of these Customer Terms, that use will constitute Customer's acceptance of such revised terms and conditions.
- Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to the Agreement.
- Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as may be otherwise expressly set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Governing Law; Jurisdiction; Venue. The Agreement is governed by and will be construed in accordance with the state laws of the State of Texas and applicable U.S. federal law, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply the Agreement. Any legal suit, action, or proceeding arising out of or related to the Agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the County of Fayette, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and agrees that venue in such courts is proper. In any action or proceeding to enforce rights under these Customer Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys' fees.
- Assignment; Binding Effect. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Transect. Transect may freely assign the Agreement in connection with the sale of all or substantially all of the assets of Transect; any merger, consolidation or acquisition of Transect with, by or into, another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of Transect in one or more related transactions. Any purported assignment or delegation in violation of this Section 20(k) will be null and void. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Severability. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon any such determination, the Parties will negotiate in good faith to modify the Agreement so as to effect the original intent of the affected provision as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the greatest extent possible.
Attn: Colton Brugger
P.O. Box 680
La Grange, Texas 78945
“Acceptable Use Policy” means Transect's Acceptable Use Policy, available at https://app.transect.com/acceptable-use-policy.
“Account Admin” has the meaning set forth in Section 1(a).
“Agreement” has the meaning set forth in the Preamble.
“API” means application program interface.
“Application” has the meaning set forth in the Preamble.
“Authorized User” means any individual authorized by Customer to access the Service via the Customer Account.
“Billing Period” has the meaning set forth in Section 8(d).
“Claim” has the meaning set forth in Section 15(a).
“Confidential Information” has the meaning set forth in Section 11(a).
“Customer” has the meaning set forth in the Preamble.
“Customer Access Credentials” has the meaning set forth in Section 1(c).
“Customer Account” has the meaning set forth in the Preamble.
“Customer Data” means the User-Generated Content and any other information, data, and content, in any form or medium, that Customer has granted Transect permission to collect via the Service, whether directly or indirectly through a Third-Party Service.
“Customer Domain” means the e-mail domain of the e-mail address used by the Account Admin to register for the Customer Account.
“Customer Information” has the meaning set forth in Section 1(b).
“Customer Terms” has the meaning set forth in the Preamble.
“Disclosing Party” has the meaning set forth in Section 11(a).
“Documentation” means any user manuals, handbooks, guides and other end user materials relating to the Service, including but not limited to the Support Documentation, and provided by Transect to Customer either electronically or in hard copy form or made available to Authorized Users via the Service.
“Effective Date” means the date Customer registers for a Customer Account, thereby accepting these Customer Terms.
“External User” has the meaning set forth in Section 2(a).
“Fees” has the meaning set forth in Section 8(a).
“Free-Report Order” has the meaning set forth in Section 6(b).
“Intellectual Property Rights” means any intellectual property rights of any kind arising under the laws of the United States or of any other jurisdiction or provided by international treaties or conventions, including (i) patents, patent applications (including patents issued thereon) and statutory invention registrations, including reissues, divisions, continuations, continuations in part, extensions and reexaminations thereof; (ii) all rights in any original works of authorship and/or any part thereof that are within the scope of any applicable copyright law, including all rights of authorship, use, publication, reproduction, distribution, performance, moral rights, and rights of ownership of copyrightable works, and all rights to register and to obtain renewals, extensions, revivals and resuscitations of any such copyright registrations; (iii) Marks (including any copyrights therein) and other identifiers, including all goodwill associated therewith, and any and all common law rights, and registrations and applications for registration thereof, and all reissues, extensions and renewals of any of the foregoing; (iv) trade secret and confidential and proprietary information, including trade secrets, confidential processes, compositions, formulas, customer information, operational data, processing quality control procedures, research and development studies, engineering information, invention reports, laboratory notebooks, technical reports, research and development archives, pricing information and know-how; (v) database and design rights, including, with respect to any of the foregoing; (vi) any rights arising in respect of domain names, or domain name registrations and reservations.
“Internal User” has the meaning set forth in Section 2(a).
“Losses” has the meaning set forth in Section 15(a).
“Marks” means any trademarks, service marks, trade names, brand names, design marks, or other indicia of source of any goods or services.
“Order Form” means any document (including online) pursuant to which Customer completes a Report Order or orders a Subscription.
“Project” has the meaning set forth in Section 6(a).
“Project Data” has the meaning set forth in Section 6(a).
“Project Owner” has the meaning set forth in Section 6(a).
“Receiving Party” has the meaning set forth in Section 11(a).
“Report Comments” any comments to a Transect Report that may be provided via the Service by an Authorized User with access to the relevant Project.
“Report Order” has the meaning set forth in Section 6(b).
“Report Results” has the meaning set forth in Section 6(c).
“Service” has the meaning set forth in the Preamble.
“Service Suspension” has the meaning set forth in Section 5(a).
“Single-Report Order” has the meaning set forth in Section 6(b).
“Site” has the meaning set forth in the Preamble.
“Subscription” Customer's right to access and use the Service for a fixed period of time.
“Subscription Period” has the meaning set forth in Section 4(a).
“Subscription Term” has the meaning set forth in Section 4(a).
“Support Documentation” means the information provided by Transect relating to use of the Service, available at https://support.transect.com/.
“Technology” means, collectively, all software, designs, formulae, algorithms, procedures, methods, discoveries, processes, techniques, ideas, know-how, research and development, technical data, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), apparatus, creations, inventions, improvements, works of authorship in any media, confidential, proprietary or non-public information, and other similar materials, and all recordings, graphs, drawings, reports, analyses and other writings, and other technology, including any tangible embodiments, in any form, of any of the foregoing.
“Term” has the meaning set forth in Section 17(a).
“Third-Party Services” has the meaning set forth in Section 9(a).
“Third-Party Sites” has the meaning set forth in Section 9(b).
“Transect” has the meaning set forth in the Preamble.
“Transect Report” has the meaning set forth in Section 6(c).
“Transect Technology” means the Site, the Application, the Service, the Documentation and any other Technology owned or controlled by Transect, whether prior to or during the Term, any improvements to or derivatives thereof, whether made by or on behalf of Transect or Customer, alone, jointly, or in conjunction with others, and any information, data, or other content derived from Transect's monitoring of Customer's access to or use of the Service, but excluding any Customer Data.
“Upgrade” has the meaning set forth in Section 4(b).
“User Account” has the meaning set forth in Section 2(b).
“User-Generated Content” means any information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material submitted, posted, or otherwise transmitted to Transect by or on behalf of an Authorized User via the Service, including but not limited to the Customer Information, the Project Data and any Report Comments.
Transect Customer-Specific Terms
These Customer-Specific Terms supplement and amend the Transect Customer Terms of Service. For each section provided below, the terms thereof apply to Customer if Customer falls under the corresponding category of Customer described therein. If there is any conflict between these Customer-Specific Terms and the Customer Terms, the applicable terms in these Customer-Specific Terms will prevail. Nothing in these Customer-Specific Terms makes Transect a government contractor for any federal, state, local, or foreign government.
- U.S. Government Customers.
If Customer is a U.S. government or U.S. public entity (or use of the Service is for the U.S. government or a U.S. public entity), this Section 1 will apply.
- Use by or for the U.S. Government.The Services are a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. The Service and the Documentation are provided to Customer and Authorized Users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other U.S. government users and their contractors.
- Indemnification, Auto-Renewal, Venue, Legal Fees.The following sections in the Customer Terms are hereby waived by Customer to the extent they are inconsistent with federal law, and Transect hereby accepts such waiver: Sections 4(b) (with respect only to auto-renewal of Subscriptions), 16(b) and 21(j).
- No Endorsement.Transect agrees that Customer's seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on the Site and uses the Service, will not be used by Transect in such a manner as to state or imply that any Transect products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. government, or are considered by Customer or the U.S. government to be superior to any other products or services. Except for pages whose design and content are under the control of Customer, and except for links to or promotion of such pages, Transect agrees not to display any Customer or government seals, trademarks, logos, service marks, and trade names on the Service or elsewhere on any part of the Site unless permission to do so has been granted by Customer or by other relevant federal government authority. Transect may list Customer's name in a publicly available customer list on a Site or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party name.
- State or Local Government Customers.
This Section 2 applies if Customer is a state or local government, but only to the extent the Service is being used in an Authorized User's official capacity as a state or local government official. The following sections in the Customer Terms are hereby waived by the Parties to the extent Customer's jurisdiction's laws prohibit Customer from accepting the requirements in those sections: Sections 4(b) (with respect only to auto-renewal of Subscriptions), 16(b) and 21(j).
- Healthcare Customers.
Unless Customer has entered into a written agreement with Transect to the contrary, Customer acknowledges that Transect is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), and that the Service is not HIPAA compliant. Customer must not use, disclose, transmit or otherwise process any “Protected Health Information” as defined in HIPAA (“PHI”) through the Service. Customer agrees that Transect cannot support and has no liability for PHI received from Customer, notwithstanding anything to the contrary herein.