Terms of Use

 

Effective June 2020 – February 2021

 

WITNESSETH:

 

WHEREAS, Transfr is engaged in the business of developing distributing, and/or selling virtual reality training simulations which enable novices to acquire skills through simulation-based training and meet the requirements for employment;

 

WHEREAS, the Customer is engaged in the business of providing quality workforce development resources; and

 

WHEREAS, Transfr and the Customer desire to agree on terms which will be applied to govern Transfr’s provision of certain services and equipment to the Customer.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which hereby are mutually acknowledged, the parties intending to be legally bound do hereby agree as follows:

 

           1. Services

 

    1. Software Services. The Customer agrees to retain Transfr, and Transfr agrees to be retained, to license virtual reality training simulation services to the Customer (the “Software Services”) as set forth in an individual purchase order executed between the Customer and Transfr (each, a “Purchase Order”), a form of which is attached hereto as Exhibit A. 
    2. Hardware Services.  In connection with the Software Services provided, Transfer shall provide to the Customer certain virtual reality equipment (the “Equipment”) and provide maintenance and repair services for such Equipment (the “Hardware Services” and together with the Software Services the “Services”). Each piece of Equipment shall be listed separately on the applicable software Purchase Order.
    3. Purchase Orders. Each Purchase Order will incorporate this Agreement by reference and shall constitute a unique agreement and shall stand alone with respect to any other Purchase Order entered under this Agreement. To the extent that terms and/or provisions of a Purchase Order conflict with the terms and/or provisions of this Agreement, the terms and/or provisions of this Agreement shall control unless the Purchase Order expressly states otherwise. Transfr and the Customer agree that the Purchase Order shall set forth a reasonable schedule for the Services to be performed, and each Party will use commercially reasonable efforts to comply with the timelines stated therein.
    4. Payment for Services. In consideration for Transfr performing the Services, the Customer shall pay the amounts as set out in the applicable Purchase Order.


          2.Equipment

 

    1. Use of Equipment. The Customer agrees to use the Equipment in connection with the software provided in connection with the Software Services for  training and development, and not for any other commercial use or application. The Customer shall be responsible for the proper use and deployment of the Equipment. Transfer shall provide training to the Customer on the proper use of the Equipment and any Equipment use procedures; provided, however, the Customer shall be responsible for training anyone using the Equipment on the proper use of the Equipment in accordance with any Equipment use procedures.  The Customer’s Transfr-trained trainers shall be responsible for the proper storage, use and deployment of the Equipment.  When not in use, the Equipment shall be stored in a secure location. Customer shall ensure that anyone using the Equipment has read and agreed to Transfr’s disclaimers contained in the software. 
    2. Maintenance and Repair. The Customer agrees that Transfer shall be the exclusive provider of maintenance and repair services for the Equipment. 
    3. Lost, Stolen or Damaged Equipment. The Customer is responsible for the full cost of repair or replacement of any or all of the Equipment that is damaged, lost, confiscated, or stolen from the time Customer assumes custody of the Equipment until it is returned to Transfr, unless otherwise explicitly set forth in the applicable Purchase Order.  If the Equipment is lost, stolen or damaged, the Customer agrees to promptly notify Transfr.  
    4. Receipt and Return of Equipment. The Customer shall be responsible for the safe packaging, proper import, export, shipping and receiving of the Equipment. The Equipment shall be returned within a reasonable amount of time after the earlier of end date identified on the applicable Purchase Order or the termination of this Agreement.   Equipment shall be returned to Transfr in as good a condition as when received by the Company, except for reasonable wear and tear. 
    5. Title to the Equipment.  Subject to the terms of this Agreement and the applicable Purchase Order, title to the Equipment shall remain with Transfr.  

 

       
           3.Term and Termination

 

    1. Term. This Agreement shall commence on the Execution Date and expire on ____ (the “Term”).
    2. Termination. This Agreement or any and all associated Purchase Orders may be terminated as follows:
      1. Transfr may terminate this Agreement upon sixty (60) days’ written notice to the Customer. 
      2. Transfr may terminate any Purchase Order upon thirty (30) days’ written notice to the Customer.
      3. A party may terminate this Agreement and any Purchase Order on written notice effective immediately if the other party commits a Material Breach (as hereinafter defined) of this Agreement or a Purchase Order which cannot be cured, or for a Material Breach of this Agreement or a Purchase Order which is capable of cure but is not cured within thirty (30) days of receipt of written notice from the other party (“Material Breach” being defined herein as failure to substantially comply with any material provision of this Agreement or any Purchase Order, including without limitation failure by the Customer to pay any undisputed amount due pursuant to a Purchase Order within thirty (30) days of receipt of notice of an overdue payment);
      4. A party may terminate this Agreement and all Purchase Orders on written notice effective immediately if the other party (i) ceases, or threatens to cease, to carry on business or maintain itself as a going concern; (ii) becomes insolvent, is dissolved or liquidated, makes a general assignment for the benefit of its creditors, files or has filed against it, a petition in bankruptcy; or (iii) has a receiver appointed for a substantial part of its assets and is not discharged within thirty (30) days after the date of such appointment. 
    3. Duties Upon Termination.
      1. Cooperation. Upon termination of this Agreement or any Purchase Order, the parties will wind down activities and associated costs prior to the performance of any additional tasks not otherwise addressed in such Purchase Order. The Parties will reasonably cooperate with each other to provide for an orderly cessation of Services.
      2. Customer Return Obligation. The Customer is obligated to return by mail all Equipment in an undamaged condition, to Transfr within thirty (30) days of the expiration or termination of this Agreement or the Purchase Order, as applicable.
      3. Payment. The Customer will pay or reimburse Transfr for any amounts owed, but not yet paid, for Services performed or expenses incurred, if any, up to the effective date of termination.

 

            4.No Warranty; Limitation on Liability

 

    1. No Warranty. TRANSFR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE EQUIPMENT OR THE PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NON-INFRINGEMENT. TRANSFR DOES NOT WARRANT THAT THE CONTENT IS ERROR-FREE, WILL RUN UNINTERRUPTED, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED.
    2. Limitation of Liability. TRANSFR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. Damages. TRANSFR’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED: ANY FEES PAID BY THE CUSTOMER TO TRANSFR. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION. THE CUSTOMER ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED BY TRANSFR WOULD BE HIGHER.



         5.Indemnification

 

    1. Customer Obligations. Customer shall, to the extent authorized by applicable law, hold harmless Transfr, its officers, agents and employees from any and all claims filed by a third parties for damages, costs, actions, liabilities or expenses to the extent they result from or arise out of Customer’s use of the Product or the Equipment, including but not limited to claims by the Customer’s employees, users or clients, allegedly caused by use of the Product or the Equipment, and claims of infringement relating to any content used by the Customer through the Product or the Equipment.
    2. Indemnification of the Customer. The Customer shall give Transfr prompt notice of any claims brought against the Customer by a third party based on any allegation that the Customer’s use of the Product, or any part thereof, constitutes infringement of any United States third party intellectual property right, cooperates with Transfr in responding to such claims, and permit Transfr to control the defense or settlement of such claims. If the Product becomes or, in Transfr’s opinion is likely to become, the subject of an infringement claim or action, Transfr may, at its option: (a) procure, at no cost to the Customer, the right for the Customer to continue using the Product; (b) replace or modify the Product to render it non-infringing, provided there is no material loss of functionality; or (c) if, in Transfr’s reasonable opinion, neither (a) nor (b) above is commercially feasible, terminate this Agreement. The foregoing states Transfr’s sole obligation and the Customer’s exclusive remedy in the event any such claim or action is commenced or is likely to be commenced.

 

           6.Confidentiality and Non-Disclosure

 

    1. Both parties understand and agree that during the Term of this Agreement and thereafter, they may receive or become aware of confidential or otherwise sensitive information of the other, which may include, without limitation, information such as analyses, projects, reports, technical/financial/budgetary information, proprietary concepts, internal processes, methodologies and intellectual property. The parties agree, for the Term of this Agreement and for a period of five (5) years thereafter, to keep such information confidential, and they further agree to not communicate, divulge, disclose or otherwise use, directly or indirectly, such information, except where: (a) required for the performance of their duties under this Agreement; (b) required by applicable laws; or (c) the information enters the public domain without the fault of the parties hereto.

           7.Intellectual Property

 

    1. Ownership of Intellectual Property. As between Transfr and the Customer, Transfr owns and shall retain all right, title, and interest, including, without limitation, all intellectual property rights, in and to Transfr’s trademarks and proprietary indicia. The Customer shall have only those rights in and to such items as are expressly granted to the Customer under this Agreement. The parties agree that any (a) intellectual property, industrial property or proprietary rights (including patents, copyrights and know-how) and/or (b) results, work product, content, reports or other deliverables in any form or media, in each case, that are created, invented, utilized or developed by Transfr or its designees in connection with this Agreement (collectively the “Product”) are owned solely by Transfr.
    2. Grant of Intellectual Property Licenses.
      1. The Customer hereby grants Transfr a fully paid, perpetual, non-exclusive, sub-licensable, non-revocable, license under and to all intellectual property rights owned or controlled by the Customer that are utilized by Transfr as far as strictly necessary for the development of the Product or any improvement or derivative thereof. 
      2. Transfr grants to the Customer a non-exclusive, non-revocable license to distribute the Product in the form provided by Transfr exclusively in connection with the Services and for the use as set forth in Section 2.1.
         
           8.Miscellaneous

 

    1. Assignment. The Customer may not assign its rights under this Agreement without the prior written consent of Transfr. Any purported assignment by the Customer shall be null and void. Transfr may assign this Agreement in its entirety in connection with a merger, acquisition or similar transaction.
    2. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of laws provisions.  The parties hereby agree to the exclusive jurisdiction of the state and federal courts located in the State of Delaware and hereby agree that such courts shall be the exclusive venue for any action or proceeding arising out of or related to this Agreement.
    3. Severability. All provisions of this Agreement shall be considered as separate terms and conditions, and in the event any one shall be held illegal, invalid or unenforceable, all the other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, unless the provision held illegal, invalid or unenforceable is a material provision of this Agreement, in which case Transfr and the Customer agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.
    4. Independent Contractors. The parties hereunder are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
    5. Entire Agreement. This Agreement and the applicable Purchase Orders constitute the entire Agreement between the Customer and Transfr with respect to the subject matter hereof, and no waiver, modification, alteration or amendment of any of the terms or conditions hereof shall be effective unless and until set forth in a writing duly signed by an authorized representative of Transfr and the Customer.
    6. Force Majeure. Transfr shall not be responsible for any failure or delay in the performance of any obligation hereunder, if such failure or delay is due to a cause beyond Transfr’s reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labor disputes or governmental acts.
    7. Notices. All notices to either party shall be in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by the Customer or Transfr or to such other address as either party shall give by notice to the other party. Notices shall be effective when delivered to the applicable address.
    8. Survival. The provisions of Sections 3.3, 4, 6, 7, and 8 of this Agreement shall survive the expiration or termination of this Agreement for any reason.



IN WITNESS WHEREOF, the parties hereto have executed this Master Service Agreement as of the date first written above.