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Tranzforms Cloud Agreement

This Tranzforms Cloud Agreement is entered into between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“Customer”), and Tranzforms LLC (“Tranzforms”).  It consists of the terms and conditions below, Use Rights, SLA, and all documents referenced within those documents (together, the “agreement”).  It is effective on the date that Tranzforms provisions your Subscription.  Key terms are defined in Section 10. 

1. Grants, rights and terms.  All rights granted under this agreement are non-exclusive and non-transferable and apply as long as neither Customer nor any of its Affiliates is in material breach of this agreement.

a. Software.  Upon acceptance of each order, Tranzforms grants Customer a limited right to use the Software in the quantities ordered.

(i) Use Rights.  The Use Rights in effect when Customer orders Software will apply to Customer’s use of the version of the Software that is current at the time. 

(ii) Temporary and perpetual licenses.  Licenses available on a subscription basis are temporary.  For all other licenses, the right to use Software becomes perpetual upon payment in full.  

b. Online Services.  Customer may use the Online Services as provided in this agreement.

(i) Online Services Terms.  The Online Services Terms in effect when Customer orders or renews a subscription to an Online Service will apply for the applicable subscription term. 

(ii) Suspension.  Tranzforms may suspend use of an Online Service during Customer’s violation of the Acceptable Use Policy or failure to respond to a claim of alleged infringement. 

(iii) End Users.  Customer controls access by End Users and is responsible for their use of the Product in accordance with this agreement.  For example, Customer will ensure End Users comply with the Acceptable Use Policy. 

(iv) Customer Data.  Customer is solely responsible for the content of all Customer Data.  Customer will secure and maintain all rights in Customer Data necessary for Tranzforms to provide the Online Services to Customer without violating the rights of any third party or otherwise obligating Tranzforms to Customer or to any third party.  Tranzforms does not and will not assume any obligations with respect to Customer Data or to Customer’s use of the Product other than as expressly set forth in this agreement or as required by applicable law. 

(v) Responsibility for your accounts.  Customer is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Online Services.  Customer must promptly notify customer support about any possible misuse of Customer’s accounts or authentication credentials or any security incident related to the Online Services.  

c. License transfers.  License transfers are not permitted, and upon such transfer, Customer and its Affiliates must uninstall and discontinue using the licensed Product and render any copies unusable. 

d. Reservation of rights.  Products are protected by copyright and other intellectual property rights laws and international treaties.  Tranzforms reserves all rights not expressly granted in this agreement.  No rights will be granted or implied by waiver or estoppel.  Rights to access or use Software on a device do not give Customer any right to implement Tranzforms patents or other Tranzforms intellectual property in the device itself or in any other software or devices.

e. Restrictions.  Customer may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Customer’s use of the Online Services.  Except as expressly permitted in this agreement or Product documentation, Customer may not distribute, sublicense, rent, lease, lend, resell or transfer and Products, in whole or in part, or use them to offer hosting services to a third party. 

f. Preview releases.  Tranzforms may make Previews available.  Previews are provided “as-is,” “with all faults,” and “as-available,” are excluded from the SLA and all limited warranties provided in this agreement and may be subject to reduced or different security, compliance, and privacy commitments. 

g. Verifying compliance for Products.

(i) Right to verify compliance.  Customer must keep records and must promptly provide any information relating to all use and distribution of Products by Customer and its Affiliates.  Tranzforms has the right, at its expense, to verify compliance with the Products’ license terms. 

(ii) Remedies for non-compliance.  If verification or self-audit reveals any unlicensed use of Products, then within 30 days, Customer must order sufficient licenses to cover its use at 150% of the current price

(iii) Verification process.  Tranzforms will notify Customer at least 30 days in advance of its intent to verify Customers’ compliance with the license terms for the Products Customer and its Affiliates use or distribute.

2. Subscriptions, ordering

a. Available Subscription offers.  The Subscription offers available to Customer will be established by Tranzforms and generally can be categorized as one or a combination of the following: 

(i) Online Services Commitment Offering.  Customer commits in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis for continued use of the Online Service.   

(ii) Consumption Offering (also called Pay-As-You-Go).  Customer pays based on actual usage with no upfront commitment.   

(iii) Limited Offering.  Customer receives a limited quantity of Online Services for a limited term without charge (for example, a free trial) or as part of another Tranzforms offering . Provisions in this agreement with respect to the SLA and data retention may not apply. 

(iv) Software Commitment Offering.  Customer commits in advance to purchase a specific quantity of Software for use during a Term and to pay upfront or on a periodic basis for continued use of the Software.   

b. Ordering.  Orders must be placed through Tranzforms’ web site or email. 

c. Pricing and payment.  Prices for each Product and any terms and conditions for invoicing and payment will be established by Tranzforms. 

d. Renewal.  Customer’s Subscription will automatically renew unless Customer provides Tranzforms with notice of its intent not to renew prior to the expiration of the Term.   

e. Taxes.  The parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes will be the financial responsibility of the party who is obligated by operation of law to pay such tax.   

3. Term, termination

a. Agreement term and termination.  This agreement will remain in effect until the expiration or termination of Customer’s Subscription, whichever is earliest.  Customer may terminate this agreement at any time by contacting Tranzforms.  The expiration or termination of this agreement will only terminate Customer’s right to place new orders for additional Products under this agreement.  

b. Termination for cause.  If either party breaches this Agreement, the other party may terminate the breached agreement (in whole or in part, including orders) upon notice.  If the breach is curable within 30 days, then the terminating party must provide 30 days’ notice to the breaching party and an opportunity to cure the breach.

c. Cancel a Subscription.  Customer may terminate the subscription at any time by contacting Tranzforms.     

4. Security, privacy, and data protection

a. Customer consents to the processing of personal information by Tranzforms and its agents to facilitate the subject matter of this agreement.  Customer may choose to provide personal information to Tranzforms on behalf of third parties (including your contacts, resellers, distributors, administrators, and employees) as part of this agreement.  Customer will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Tranzforms. 

b. As and to the extent required by law, Customer shall notify the individual users of the Online Services that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Reseller or as required by law, and Customer shall obtain the users’ consent to the same. 

5. Warranties

a. Limited warranty.  

(i) Software.  Tranzforms warrants that each version of the Software will perform substantially as described in the applicable Product documentation for one year from the date Customer is first licensed for that version.  If it does not, and Customer notifies Tranzforms within the warranty term, then Tranzforms will, at its option, (1) return the price Customer paid for the Software license or (2) repair or replace the Software. 

(ii) Online Services.  Tranzforms warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use.  Customer’s sole remedies for breach of this warranty are in the SLA. Customer waives any breach of warranty claims not made during the warranty period.

b. Exclusions.  The warranties in this agreement do not apply to free or trial products, Previews, Limited Offerings or to problems caused by accident, abuse or use inconsistent with this agreement, including failure to meet minimum system requirements

c. Disclaimer.  Except for the limited warranties above, Tranzforms provides no warranties or conditions for Products and disclaims any other express, implied, or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.  

6. Defense of third party claims.  The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it.  The party being defended must provide the defending party with all requested assistance, information, and authority.  The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance.  This section describes the parties’ sole remedies and entire liability for such claims.

7. Limitation of liability. For Online Services, Tranzforms’s maximum liability to Customer for any incident giving rise to a claim will not exceed the lesser of the amount of US$999 or the amount Customer paid for the Online Service during the 12 months before the incident

b. Free Products and distributable code.  For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Tranzforms, Tranzforms’s liability is limited to direct damages finally awarded up to US$99.

c. Exclusions.  In no event will either party be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for loss of use, lost profits, revenues, business interruption, or loss of business information, however caused or on any theory of liability.

d. Exceptions.  The limits of liability in this section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties’ obligations under section 6; or (2) violation of the other’s intellectual property rights. 

8. Support and Professional Services.  Tranzforms will provide details on support services available for Products purchased under this agreement.  and the performance of those Professional Services will be subject to the terms and conditions in the Use Rights. 

9. Miscellaneous

a. Notices.  You must send notices by mail, return receipt requested, to the address below.    

Notices should be sent to: 

Tranzforms. 50E. STE A312   Ridgewood Ave. Ridgewood, NJ – 07450.

You agree to receive electronic notices from us, which will be sent by email to the account administrator(s) named for your Subscription.  Notices are effective on the date on the return receipt or, for email, when sent.  You are responsible for ensuring that the email address for the account administrator(s) named for your Subscription is accurate and current.  Any email notice that we send to that email address will be effective when sent, whether or not you actually receive the email. 

b. Assignment.  You may not assign this agreement either in whole or in part.  Tranzforms may transfer this agreement without your consent, but only to one of Tranzforms’s Affiliates.  Any prohibited assignment is void. 

c. Severability.  If any part of this agreement is held unenforceable, the rest remains in full force and effect.  

d. Waiver.  Failure to enforce any provision of this agreement will not constitute a waiver.   

e. No agency.  This agreement does not create an agency, partnership, or joint venture.  

f. No third-party beneficiaries.  There are no third-party beneficiaries to this agreement.  

g. Use of contractors.  Tranzforms may use contractors to perform services, but will be responsible for their performance, subject to the terms of this agreement.

h. Tranzforms as an independent contractor.  The parties are independent contractors.  Customer and Tranzforms each may develop products independently without using the other’s confidential information.

i. Agreement not exclusive.  Customer is free to enter into agreements to license, use or promote non-Tranzforms products or services.

j. Applicable law and venue.  This agreement is governed by New Jersey law, without regard to its conflict of laws principles.  Any action to enforce this agreement must be brought in the State of New Jersey.  This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.

 k. Entire agreement.  This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. 

l. Survival.  All provisions survive termination of this agreement except those requiring performance only during the term of the agreement.

m. U.S. export jurisdiction.  Products are subject to U.S. export jurisdiction.  Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, enduse and destination restrictions issued by U.S. and other governments related to Tranzforms products, services, and technologies. 

n. Force majeure.  Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)).  This Section will not, however, apply to your payment obligations under this agreement. 

o. Contracting authority.  If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. 

10. Definitions.  Any reference in this agreement to “day” will be a calendar day. 

“Acceptable Use Policy” is set forth in the Online Services Terms. 

“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. 

“Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.  

“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe categories of Subscription offers and are defined in Section 2.  

“Customer Data” is defined in the Online Services Terms. 

“End User” means any person you permit to access Customer Data hosted in the Online Services or otherwise use the Online Services. 

“Fix” means a Product fix, modifications or enhancements, or their derivatives, that Tranzforms either releases generally (such as Product service packs) or provides to Customer to address a specific issue.

“Licensing Site” means or a successor site.

“Online Services” means any of the Tranzforms-hosted online services subscribed to by Customer under this agreement. 

“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time. 

“Previews” means preview, beta, or other pre-release version or feature of the Online Services or Software offered by Tranzforms to obtain customer feedback. 

“Product” means all products identified in the Product Terms, such as all Software, Online Services and other web-based services, including Previews. 

“Product Terms” means the document that provides information about Tranzforms Products and Professional Services available through volume licensing. 

“Professional Services” means Product support services and Tranzforms consulting services provided to Customer under this agreement.  “Professional Services” does not include Online Services.

 “SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site. 

“Software” means licensed copies of Tranzforms software identified on the Product Terms.  Software does not include Online Services, but Software may be a part of an Online Service.  

“Subscription” means an enrollment for Online Services for a defined Term as established by your Reseller.   

“Term” means the duration of a Subscription (e.g., 30 days or 12 months). 

“Use Rights” means the use rights or terms of service for each Product published on the Licensing Site and updated from time to time.  The Use Rights supersede the terms of any end user license agreement that accompanies a Product.  The Use Rights for Software are published by Tranzforms in the Product Terms.  The Use Rights for Online Services are published in the Online Services Terms.