Last Updated: August 2024
These terms of use (“Terms of Use“) are entered into by and between you (“You” or “Customer”) and Transfr, Inc., a Delaware corporation (“Transfr“, “We” or “Us“), together with any Service Orders (as hereinafter defined) or other documents which expressly incorporate these Terms of Use by reference, govern your access to and use of the Services (as hereinafter defined). Customer and Transfr may be individually referred to as a “Party”, and collectively as the “Parties”.
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them. We will provide You with notice in the event of any material changes to these Terms of Use. However, any changes to the dispute resolution provisions set out in the Governing Law and Jurisdiction sections will not apply to any disputes for which the Parties have actual notice on or before the date the change is posted on this website (“Site”).
For information concerning our accessibility options, please see our Accessibility Statement or contact accessibility@transfr.com. If You would like to learn more about how We treat the information You share when using this Site or our services, please review our Privacy Policy.
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1.1. Software Services; Use. 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”) for use by the Customer’s designated “Participants” as defined in Section 1.4.3 herein, and related services as set forth in an individual service order executed between the Customer and Transfr (each, a “Service Order”). Implementation Training and Technical Support services are included for the term of the contract.
1.2. Hardware Services. In connection with the Software Services provided, Transfr may provide to Customer certain virtual reality equipment (“Equipment”) as required and requested by Customer. For the avoidance of doubt, all capitalized references in this Agreement to “Equipment” shall refer exclusively to equipment provided to the Customer by Transfr. In the event Customer receives Equipment, Transfr shall provide maintenance and repair services for such Equipment (the “Hardware Services”; and together with the Software Services, the “Services”). The type and total amount of Equipment to be provided to Customer, if any shall be noted on the applicable Service Order.
1.3. Additional Related Services. In addition to the Software Services, Transfr may provide supplemental programmatic services.
1.4. Technical Requirements For The Use of Software Services and Equipment:
1.4.1. WIFI Access Required: Use of the Equipment, and the Software Services requires that Customer provide access to a WIFI network properly configured for this use for all its Participants.
1.4.2. Other Maintenance Actions That Require WIFI Access: Occasionally, Transfr may need to update the Software Services, and Equipment software, over the WIFI network, which may include, but is not limited to, bug fixes or patches, the addition of new features, and plug-ins.
1.4.3. Network Access and Network Hardware Costs Not Included in Service: Transfr does not provide network services or network hardware as a part of the Services or otherwise in connection with the Agreement. It is the sole responsibility of the Customer to ensure that WIFI access is both established and of sufficient bandwidth for the Customer’s designated users of the Software Services and/or Equipment (such users hereinafter, “Participants”) to properly access and engage the Software Services. Headsets require WiFi Internet Access – standard training sessions require a WIFI speed of approximately 50 mbps. Failure to provide sufficient WIFI access and networking shall result in the Software Services and Equipment being unavailable and/or non-functional and Customer acknowledges and agrees that Transfr shall not be liable for any such unavailability and/or non-functionality.
1.4.4. Additional Technical Specifications: Additional Technical Specifications can be accessed here: https://transfrinc.com/tech-specifications/(the “Technical Specifications”). If Customer’s systems, hardware, and networking are insufficient pursuant to the Technical Specifications, Customer acknowledges and agrees that the Equipment and/or Software Services may be unavailable and/or nonfunctional and that Transfr shall not be liable for any such unavailability and/or non-functionality.
1.5. Service Orders. Each Service Order will incorporate this Agreement by reference and shall constitute a unique agreement and shall stand alone with respect to any other Service Order entered under this Agreement. To the extent that terms and/or provisions of a Service Order conflict with the terms and/or provisions of this Agreement, the terms and/or provisions of this Agreement shall control unless the Service Order expressly states otherwise. Transfr and the Customer agree that the Service 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.
1.6. Payment for Services; Refunds.
1.6.1. Payment for Services. In consideration for Transfr performing the Services, the Customer shall pay the amounts as set out, and in accordance with the timeline set forth, as set out and in accordance with the payment set forth in the applicable Service Order.
1.6.2. Refunds. Except for termination as outlined in section 3.2.2 herein, Transfr does not offer refunds for Services. In the event of a defect with the Software Services, Transfr will work to correct the same in accordance with Section 1.4.2; In the event of a defect with any Equipment provided by Transfr, that is not the result of Customer misuse or damage, Transfr shall replace the Equipment in accordance with Section
2.1. Use of Equipment. The Customer agrees to use any Equipment provided by Transfr 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 receiving, secure storage, use and deployment of the Equipment. Transfr 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 its Participantson the proper use of the Equipment in accordance with any Equipment use procedures. The Customershall be responsible for the proper storage, use, and deployment of the Equipment. When not in use, the Customer shall ensure that the Equipment is stored in a secure location. The Customer shall ensure that its Participants (or in the case of minors, legal representatives of such Participants) have read and agreed to Transfr’s disclaimers contained in the software, and, referenced in Section 13 herein.
2.2. Title to the Equipment. Except as otherwise provided in this Agreement, title to the Equipment shall remain with Transfr.
2.3. 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 shipped back to Transfr within seven (7) business days of the earlier of either the“End Date” identified on the applicable Service Order, or the date of termination or expiration of this Agreement. The Equipment shall be shipped via USPS, UPS, FEDEX or other major commercial carrier, with tracking. All Equipment shall be returned to Transfr in as good a condition as when received by the Company, except for reasonable wear and tear.
2.4. Maintenance and Repair. The Customer agrees that Transfr shall be the exclusive provider of maintenance and repair services for the Equipment.
2.5. Defective Equipment. Transfr will ensure that all Equipment we provide is up-to-date with regard to all specifications required to support the Software Services. If any Equipment is defective (excluding any misuse or damage done to the Equipment by Customer including its Participants), Customer shall return the defective unit(s) to Transfr and Customer will receive a replacement unit at no additional cost to Customer.
2.6. Replacement of Lost, Stolen, or Damaged Equipment. In the event that any Equipment, including any peripheral part(s) thereto, is lost, stolen, damaged due to misuse or use beyond normal wear and tear, or vandalism, or theft, (i) the Customer agrees to promptly notify Transfr upon discovery of damage or loss of the Equipment and return any damaged Equipment to Transfr; (ii) the Customer is responsible for the full cost of repair or replacement of the Equipment and peripheral parts, including shipping costs, and costs of setup; and (iii) the Customer assumes custody of the Equipment until it is returned to Transfr.
3.1. Term. This Agreement shall commence on the Start Date as set forth on the applicable Service Order, and expire on the End Date indicated in the Service Order, unless terminated earlier in accordance with Section 3.2 herein.
3.2. Termination. This Agreement or any and all associated Service Orders may be terminated before the End Date as follows:
3.2.1. by Transfr, if Customer fails to pay any amount when due hereunder and such failure continues for thirty (30) days after Transfr’s delivery to Customer of written notice of nonpayment;
3.2.2 by either Party, if the other Party breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within thirty (30) days after the non-breaching Party’s delivery to the other Party of written notice of such breach; or
3.2.3. by either Party, upon delivery of written notice effective immediately, if the other Party (i) ceases, or threatens to cease, to carry on business; (ii) becomes insolvent, is dissolved or liquidated, makes a general assignment for the benefit of its creditors, or 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.
3.3. Duties Upon Termination.
3.3.1. Cooperation. Upon termination of this Agreement or any Service Order, the Parties will wind down activities and associated costs prior to the performance of any additional tasks not otherwise addressed in such Service Order. The Parties will reasonably cooperate with each other to provide for an orderly cessation of Services.
3.3.2. Customer Return Obligation. The Customer shall return all Equipment to Transfr by mail as outlined in Section 2.3, within seven (7) days of the expiration or termination of this Agreement or the Service Order, as applicable.
3.3.3. Payment. The Customer will promptly 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.
4.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (iii) the execution of this Agreement by its representatives whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; (iv) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (v) it shall perform its obligations hereunder in compliance with all applicable laws; (vi) it has control (by ownership, license or otherwise) of the entire right, title, and interest in and to the Transfr Materials or Customer Materials, as applicable, and the other Party’s use of the Transfr Materials or Customer Materials, as applicable, will not infringe any intellectual property rights of any third-party.
4.2. Limitation of Warranties. Transfr warrants that the Services will be performed in a professional and workmanlike manner in accordance with applicable professional standards. THE PRECEDING IS TRANSFR’S ONLY WARRANTY CONCERNING THE SERVICES AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE. TRANSFR DOES NOT WARRANT THAT THE CONTENT IS ERROR-FREE, WILL RUN UNINTERRUPTED, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. TRANSFR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE EQUIPMENT OR THE “PRODUCT” (AS DEFINED IN SECTION 6 HEREIN).
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.
6. Intellectual Property.
6.1. 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 proprietary indicia, and the Software Services (collectively, “Transfr Intellectual Property”). 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) additional 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.
6.1.1. Feedback. If the Customer or any of its employees, contractors or Participants sends or transmits any communications or materials to Transfr by mail, email, telephone, or otherwise, suggesting or recommending changes to the Transfr Intellectual Property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Transfr is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. The Customer hereby assigns to Transfr on the Customer’s behalf, and on behalf of its employees, contractors, agents and Participants, and to the extent required, agrees to obtain on Transfr’s behalf all consents necessary to assign to Transfr, all right, title, and interest in, and Transfr is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Transfr is not required to use any Feedback. Transfr acknowledges that all Feedback is provided “as-is” without any representations or warranties from any providers of Feedback.
6.2. Grant of Intellectual Property Licenses.
6.2.1. 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.
6.2.2. For the duration of the Term of this Agreement, Transfr grants to the Customer a non-exclusive, non-revocable license to distribute the Product solely in the form provided by Transfr and exclusively for the use as set forth in Section 1.1.
7.1. Customer Obligations. To the extent permitted by applicable law, the Customer shall, indemnify and hold harmless Transfr, its officers, agents and employees from any and all claims filed by a third-party 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.
7.2. Transfr Obligations. 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, cooperate 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.
8.2. 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.
8.3. Damages. TRANSFR’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE CUMULATIVE SUM OF ALL FEES PAID BY THE CUSTOMER TO TRANSFR WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. 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.
9.1. FERPA Compliance. For our Customers in the Education Sector. By using Transfr’s Site and Services, Customer confirms that Customer does and shall continue to comply with all applicable federal and state privacy laws, including, the Family Educational Rights and Privacy Act (FERPA), including without limitation, 34 CFR §99.37, regarding disclosures of “Directory Information”.
9.2. COPPA Compliance; Notice to Educational Institutions. The following notice is for our Customers in the Education Sector with regards to students under the age of 13 (“Student(s)”) in compliance with the Children’s Online Privacy Protection Act (COPPA): Customer’s consent is required for the collection, use, or disclosure of all Student personal information. Transfr’s collection and use of personal information from Students is limited to an educational context, in which the collection is for the use and benefit of Customer and Customer’s Students and for no other commercial purpose. Transfr will not collect, use, or disclose any personal information from the Student without Customer’s consent.
9.2.1. Personal Information Collected. Customers who purchase our “Transfr Trek” application (the “App”) may be required to provide the first and last name, username and email address for each Student who uses the App. For details on how we use this information, please see our Privacy Policy.
10.1. During the Term of this Agreement and for a period of one (1) year following the later of, the expiration or termination of this Agreement, or, the completion or termination of the last Statement of Work under this Agreement, Customer shall not, and shall not permit any of its affiliates to, either directly or indirectly, on Customer’s own behalf or in the service or on behalf of others, solicit, recruit or attempt to persuade any employee or contractor of Transfr, to terminate such person’s employment or work with Transfr. However, Customer shall not be precluded from hiring any person: (i) who responds to any general solicitation or advertisement; (ii) who contacts Customer on his or her own initiative without any direct or indirect solicitation or encouragement from Customer other than any general solicitation or advertisement; (iii) whose employment or work with Transfr is terminated by Transfr; (iv) whose employment or service relationship has been terminated by the employee or contractor at least 180 days prior; or (v) with whom the Customer has not had any contact in connection with performance of the Services.
10.2 If Customer hires any employee or contractor of Transfr in violation of its non-solicitation obligations hereunder, then Transfr will bill Customer, and Customer agrees to pay to Transfr, a sum equal to six (6) months of the employee’s or contractor’s wages or fees, as applicable, as liquidated damages. Customer agrees and acknowledges that its non-solicitation obligations hereunder are essential to the protection of Transfr’s business. Furthermore, the Parties acknowledge and agree that harm caused to Transfr by Customer’s breach of its non-solicitation obligations hereunder would be impossible or very difficult to accurately estimate at the time of the breach and that the liquidated damages are a reasonable estimate of the anticipated or actual harm that might arise from such breach.
11.1. The Customer hereby grants Transfr a non-exclusive, non-transferable, non-sublicensable, license to use and publicly display the trademarks, service marks, logos, domain names or other designations of origin of the Customer (“Marks”) on Transfr’s websites for promotional purposes. Transfr may use and publicly display Marks without Customer’s prior written approval, but only in accordance with any other trademark guidelines provided to Transfr by Customer. In the event Customer reasonably objects to any use of its Marks by Transfr, Customer must notify Transfr in writing, and Transfr shall cease such use (or modify its use such that it is no longer objectionable) promptly after receipt of such Notice.
11.2. Transfr may publicly display any testimonials by the Customer detailing the Customer’s use of Transfr for the Services set forth in any Service Order or selection of Service Orders hereunder on Transfr’s websites for promotional purposes. Transfr may publicly display any testimonials without Customer’s prior written approval, but only in accordance with any other reasonable guidelines provided to Transfr by Customer. In the event Customer reasonably objects to any use of its testimonials by Transfr, Customer shall notify Transfr in writing, and Transfr shall cease such use (or modify its use such that it is no longer objectionable) promptly after receipt of such Notice.
11.3. Upon the successful completion of the Services set forth in any Service Order hereunder, Transfr may disseminate publicly a case study detailing Customer’s use of Transfr for the Services set forth in any Service Order or selection of Service Orders hereunder. The terms of the case study shall be as proposed by Transfr but subject to Customer’s reasonable approval, not to be unreasonably withheld or delayed. For the avoidance of doubt, nothing in this Section 11 affects Transfr’s obligation to protect Customer’s Confidential Information pursuant to the terms of this Agreement.
12.1. ManageXR MDM Customers. This Section only applies to Customers who purchase the ManageXR MDM platform (the “ManageXR Platform”) through Transfr.
12.1.1. Authorized Reseller. Customer acknowledges that Transfr is an authorized reseller of the ManageXR Platform.
12.1.2. No Resell or Redistribution. Customer shall use the ManageXR Platform solely for itself and will not permit or encourage any one else to, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit theManageXR Platform in any way.
12.1.3. Acceptance of Pass-Through Terms. Customer acknowledges and agrees that Customer’s use of the ManageXR Platform shall be governed by the Mighty Immersion Customer Agreement found at https://www.managexr.com/legal/terms-of-service/.
12.2. Virtual Health Clinic Customers. This Section only applies to Customers who purchase Virtual Health Clinic (“VHC”) licenses. Customer will also receive 12 months of access to the Health Science Career Exploration simulations (once each is released) or through the end of their current term (whichever is sooner) as a complimentary addition.
12.3. For Customers who purchase an Enhanced Services Package. This Section only applies to Customers who purchase an Enhanced Services Package. All Enhanced Service Packages are one-time services to be performed on a single day unless otherwise negotiated and agreed to in writing. All packages must be used by the end of the contract term, or within one year of the purchase date, for multi year agreements. Enhanced Service Packages purchased but not used within the timeframe noted above, will be forfeited. Transfr will provide customers with an outline of the day. Customer should expect approximately 1 hour of setup, 3 to 4 hours of active training, and 1 hour for tear down.
13.1. Assignment. The Customer may not assign its rights, liabilities or obligations under this Agreement without the prior written consent of Transfr. Any purported assignment by the Customer shall be null and void. Transfr may freely assign this Agreement in its entirety in connection with a merger, acquisition or similar transaction. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the Parties hereto and their respective successors and assigns.
13.2. Service and Software Accessibility Standards. Transfr designs hands-on simulation-based training to prepare trainees to perform physical tasks in the workplace. Transfr’s simulation training follows common industrial workplace standards.
13.3. Disclaimers: There are important health and safety warnings and instructions that you must read before using Transfr’s products, which can be accessed both in the headset prior to use, and at: https://transfrinc.com/transfr-inc-safety-precautions/. Customer agrees to inform all users and instructors to review the afore-mentioned warnings and instructions as well as the Disclaimers in this Section 13.3, inclusive of Sections 13.3.1 through 13.3.2, prior to using the headset(s).
13.3.1. By using Transfr’s products, you represent and warrant that you have read and understand these warnings and instructions. We may update or revise these warnings and instructions, so please review them periodically. If third-party content is accessed additional health and safety warnings and instructions may be provided by the developers of that content.
13.3.2. You expressly acknowledge and agree that your access to and use of the Transfr products is at your sole risk. To the maximum extent permitted by applicable law, Transfr’s products are provided on an “as is” and “as available” basis, and Transfr expressly disclaims all representations, warranties and conditions (express or implied, oral or written), including any implied warranties of merchantability, fitness for a particular purpose and non-infringement; In addition, Transfr does not represent or warrant that (a) the functions contained in Transfr’s products will be accurate or meet your requirements, (b) the operation of Transfr’s products will be secure, uninterrupted, error-free or virus-free, or (c) any defects in Transfr’s products will be able to be corrected. No oral or written information, guidelines or advice given by Transfr will create an express or implied warranty. Where the laws of some states or jurisdictions prohibit the disclaimer of implied warranties, the disclaimers provided in this Section 13.3.2 will not apply.
13.4. ADA Compliance. Transfr provides hands-on simulation based training to prepare trainees to perform physical tasks in the workplace. Delivering effective and safe training requires that trainees be able to perform tasks to the standards of the workplace. The inability of a trainee to perform these tasks in simulation-based training may indicate that the trainee is unable to meet the standards of the workplace, and therefore may pose a risk of harm to themselves, coworkers, and/or the customer(s) in the workplace.
13.5. Governing Law; Venue – Arbitration. The Parties hereby agree that all claims arising out of or relating to this Agreement, shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of New York, without regard to the State of New York’s conflict of law provisions. Any dispute, controversy or claim (“Dispute”) arising out of or relating to this Agreement, including any question regarding its breach, existence, validity or termination or the legal relationships established by this agreement, or any non-contractual claims (whether in tort or otherwise), shall be referred to and determined by final and binding arbitration in accordance with the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “Rules”) then in effect, including the Rules permitting parties to seek and obtain injunctive relief through arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitral proceedings shall be presided over by a panel of three (3) impartial arbitrators to be appointed by the AAA in accordance with the Rules. The arbitrators shall have the authority to award any relief authorized by law in connection with the asserted Dispute, except that the arbitrators shall have no authority to award punitive damages, and each Party hereby waives any right to seek or recover punitive damages with respect to any Dispute resolved by arbitration. Each Party shall pay its own costs of arbitration, including its own attorneys’ fees. Nothing herein shall prevent the Parties from settling any Dispute by mutual agreement at any time.
13.6. Equal Opportunity Employer. Transfr is committed to providing equal opportunity to all, irrespective of age, survival disability, gender reassignment, marriage or civil partnership, pregnancy/maternity, race (including color, ethnicity or national origin), religion or belief, sex or sexual orientation, which are all protected characteristics in law.
13.7. Fees and Taxes. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees however designated.
13.8. Severability. If any provision of this Agreement or application thereof to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other provision or application of this Agreement that can be given effect without such invalid or unenforceable provision or application in any other jurisdiction. In the event any such provision is a material provision of this Agreement, the Parties agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.
13.9. Relationship of the Parties. For purposes of this Agreement and all Services to be provided hereunder, neither Party shall be or be considered a partner, co-venturer, agent, employee or representative of the other. Neither Party shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract, or otherwise to assume any expense, liability, obligation or responsibility in the name of, or on behalf of, the other Party.
13.10. Entire Agreement; Amendment. This Agreement, together with the applicable Service Order(s), and all related Exhibits (and Schedules, if any), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter. In the event of any inconsistency between the terms of this Agreement, the applicable Service Order(s), and the related Exhibits, Schedules, and/or purchase orders submitted by the Customer, the terms of this Agreement shall control. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement. 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 a duly authorized representative of each Party.
13.11 Counterparts. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, shall bear the signatures of all Parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
13.12. 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, global pandemic, third-party suppliers, labor disputes or governmental acts.
13.13. Survival. The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect beyond the expiration or termination date of the Agreement, shall survive such expiration or termination and shall remain enforceable in the event of a failure to perform or comply, including without limitation, Sections 3.3, 4, 5, 6, 7, 8, 9 10, 11, 12 and 13.
13.14. Notices. All notices and other communications required or permitted hereunder, including those required under Section 3, Term and Termination, shall be in writing and deemed to have been given or “delivered” when delivered by hand, mailed by certified, registered or overnight delivery service, or sent by email with delivery receipt, to the respective addresses set forth below (provided that notice of change of address shall be deemed given only when received):
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If to Transfr:
Mail: Transfr, Inc. 2196 Third Avenue PMB 20026 New York, NY 10035 Attn: “Legal Department” Email:legal@transfrvr.com |
If to Customer: To the address (including email address) provided by Customer on the applicable Service Order.
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Or to such other names or addresses as a Party shall designate by notice to the other Party entitled to receive notice, in a manner specified in this Section.
Questions: For any questions regarding these Terms of Use, please contact legal@transfrvr.com
