1.1 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).
1.2 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 the Website.
2.1 Overview. TRANSFR is engaged in the business of developing, distributing and selling virtual reality training simulations which assists novices in acquiring skills through simulation-based training and meet the requirements for employment. The Customer is engaged in the business of providing quality workforce development resources. TRANSFR and the Customer desire to agree on these Terms of Use which will be applied to govern TRANSFR’s provision of certain services and equipment to the Customer.
2.2 Software Services. The parties agree that TRANSFR shall license virtual reality training simulation services to the Customer (the “Software Services”) as set forth in one or more orders executed by the Customer and TRANSFR (each, a “Service Order”).
2.3 Hardware Services. In connection with the Software Services provided, TRANSFR shall provide to the Customer certain virtual reality equipment (the “Equipment”) and provide maintenance and repair services for the Equipment (the “Hardware Services” and together with the Software Services the “Services”). Each piece of equipment shall be listed separately on the applicable software Service Order.
2.4 Service Orders. Each Service Order will incorporate these Terms of Use by reference and shall constitute a unique agreement and shall stand alone with respect to any other Service Order entered under these Terms of Use. To the extent that terms and/or provisions of a Service Order conflict with the terms and/or provisions of these Terms of Use, the terms and/or provisions of the Service Order 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.
2.5 Payment for Services. In consideration for TRANSFR performing the Services, the Customer shall make payments in the amounts and in the timeframes set out in the applicable Service Order. Unless otherwise stated in a Service Order, payments are due within 30 (thirty) days of the date on which an invoice is sent by TRANSFR to the Customer.
2.6 Payment of Taxes. Customer shall be responsible for payment of any sales taxes required by applicable laws and regulations for payments made under these Terms of Use or any Service Order. Customer is solely responsible for advising TRANSFR if it is tax-exempt. Customer shall be solely responsible for payment of any applicable sales taxes and shall release and hold harmless TRANSFR from such obligations.
3.1 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 ensure that users must be 13 years of age or older to use this application and equipment. The Customer shall be responsible for the proper 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 anyone using the Equipment on the proper use of the Equipment in accordance with any Equipment use procedures. The Customer’s TRANSFER-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.
3.2 Maintenance and Repair. The Customer agrees that TRANSFR shall be the exclusive provider of maintenance and repair services for the Equipment.
3.3 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 Service Order. If the Equipment is lost, stolen or damaged, the Customer agrees to promptly notify TRANSFR.
3.4 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 the end date of the Initial Term or Renewal Terms identified on the applicable Service Order or the termination of these Terms of Use. Equipment shall be returned to TRANSFR in as good a condition as when received by the Company, except for reasonable wear and tear.
3.5 Title to the Equipment. Subject to the terms of these Terms of Use and the applicable Service Order, title to the Equipment shall remain with TRANSFR.
4.1 Terms
These Terms of Use shall be effective as of the Effective Date (as set forth in a Service Order) and continue through the term stated on the Service Order (the “Initial Term”). Unless the parties terminate these Terms of Use or any Service Order as stated in these Terms of Use, then these Terms of Use will continue in effect so long as there is an active Service Order in effect between the parties and each Service Order will automatically renew for additional renewal terms (each a “Renewal Term”) as further stated on the applicable Service Order (the “Term”). If the Service Order does not specify the length of the Initial Term and each Renewal Term, the default length of each Initial Term is twelve (12) months from the Effective Date, and the default length of each Renewal Term is twelve (12) months.
4.2 Termination
These Terms of Use or any and all associated Service Orders may be terminated as follows:
4.2.1 TRANSFR may terminate these Terms of Use or any and all associated Service Orders upon sixty (60) days’ written notice to the Customer.
4.2.2 TRANSFR may terminate any Service Order upon thirty (30) days’ written notice to the Customer. A termination of one Service Order does not affect any other Service Orders unless these Terms of Use or any and all associated Service Orders are terminated.
4.2.3 A party may terminate these Terms of Use and any or all Service Orders on written notice effective immediately if the other party commits a Material Breach (as hereinafter defined) of these Terms of Use or a Service Order which cannot be cured, or for a Material Breach of these Terms of Use or a Service 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 these Terms of Use or any Service Order, including without limitation failure by the Customer to pay any undisputed amount due pursuant to a Service Order within thirty (30) days of receipt of notice of an overdue payment). For clarity, a party may terminate a Service Order while not terminating these Terms of Use, but a party may not terminate these Terms of Use without also terminating all Service Orders.
4.2.4 A party may terminate these Terms of Use and all Service 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 which is not discharged within thirty (30) days after filing;; or (iii) has a receiver appointed for a substantial part of its assets and the receiver is not discharged within thirty (30) days after the date of such appointment.
4.3 Duties Upon Termination.
4.3.1 Cooperation
Upon termination of these Terms of Use 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 the Service Order. The Parties will reasonably cooperate with each other to provide for an orderly cessation of Services.
4.3.2 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 these Terms of Use or the Service Order, as applicable.
4.3.3 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. Any pre-paid fees or costs will not be reimbursed, whether or not allocated to any Equipment or Services.
5.1 No Warranty
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NON-INFRINGEMENT, OR COMPLIANCE WITH LAWS OR REGULATIONS.
5.2 Limitation of Liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING UNDER ANY THEORY OF LAW, INCLUDING BUT NOT LIMITED TO TORT AND CONTRACT, AND INCLUDING WITHOUT LIMITATION, PERSONAL INJURY, 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.
5.3 Damages
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH, THESE TERMS OF USE SHALL IN NO EVENT EXCEED: ANY FEES PAID BY THE CUSTOMER TO TRANSFR DURING THE TERM OF THESE TERMS OF USE. THE PARTIES AGREE TO THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS OF LIABILITY CONTAINED HEREIN, THE FEES CHARGED BY TRANSFR WOULD BE HIGHER.
6.1 Customer Obligations
Customer shall, to the greatest extent permitted by applicable law, hold harmless TRANSFR, its officers, agents and employees from any and all claims filed by third parties for damages, costs, actions, liabilities or expenses to the extent they result from or arise out of Customer’s use of the Services or Equipment, including but not limited to claims by the “Customer’s” employees, contractors, users or clients, allegedly caused by use of the Product or the Equipment, and claims of infringement relating to or arising out of any content used by the Customer through the Services or Equipment.
6.2 Indemnification of the Customer
The Customer shall give TRANSFR prompt notice of any claims brought against the Customer by a third party that alleges that the Customer’s use of the Equipment or Services, or any part thereof, constitutes infringement of any United States third party intellectual property right. Customer shall cooperate with TRANSFR in responding to such claims, and permit TRANSFR to control the defense or settlement of such claims. If the Services or Equipment become or, in TRANSFR’s opinion are 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 Services or Equipment; (b) replace or modify all or a portion of the Services or Equipment to render them non-infringing, provided that there is no material loss of functionality; or (c) if, in TRANSFR’s sole discretion, neither (a) nor (b) above is commercially feasible, terminate this Terms of Use and any and all Service Orders. The foregoing states TRANSFR’s sole obligation and the Customer’s exclusive remedy in the event any claim or action is commenced or, in TRANSFR’s sole discretion, is likely to be commenced.
7.1 Both parties understand and agree that during the Term and thereafter, they may receive or become aware of confidential or otherwise sensitive information of the other party, which may include, without limitation, information such as analyses, projects, reports, technical/ financial/ budgetary information, proprietary concepts, internal processes, methodologies, and intellectual property (together, “Confidential Information”). The parties agree, for the Term of these Terms of Use and for a period of five (5) years thereafter, to keep such Confidential Information confidential using safeguards at least as stringent as they would use for their own confidential information, and they further agree to not communicate, divulge, disclose or otherwise use, directly or indirectly, such Confidential Information, except where: (a) required for the performance of their duties under these Terms of Use; (b) required by applicable laws; or (c) the information enters the public domain without the fault of the parties hereto.
8.1 Ownership of Intellectual Property
As between TRANSFR and the Customer, TRANSFR owns and shall retain all rights, title, and interest, including, without limitation, all intellectual property rights, in and to TRANSFR’s copyrights, trademarks, trade secrets, and proprietary indicia. The Customer shall have only those rights in and to such items as are expressly granted to the Customer under these Terms of Use. The parties agree that any (a) intellectual property, industrial property or proprietary rights (including patents, copyrights, trademarks, trade secrets, and know-how) and (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 these Terms of Use or any Service Order (collectively the “Product”) are owned solely by TRANSFR.
8.2 Grant of Intellectual Property Licenses
8.2.1 The Customer hereby grants TRANSFR a fully paid, perpetual, non-exclusive, sub-licensable, irrevocable worldwide 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 Equipment or Services or any improvement or derivative work thereof.
8.2.2 TRANSFR grants to the Customer a non-exclusive, irrevocable (except as set forth in the termination provisions herein) license to distribute the Equipment or Services in the form provided by TRANSFR exclusively in connection with the Services and for the use as set forth in Section 3.1.
9.1 Assignment
The Customer may not assign its rights under these Terms of Use or any Service Order without the prior written consent of TRANSFR. Any purported assignment by the Customer shall be null and void. TRANSFR may assign these Terms of Use or any Service Order in its entirety in connection with a merger, acquisition or similar transaction, effective on sending written notice to the Customer.
9.2 Governing Law and Arbitration
These Terms of Use and each Service Order shall be governed by and construed in accordance with the substantive and procedural laws of the State of Delaware without regard to its conflicts of laws provisions. Any disputes between the parties, whether or not arising out of these Terms of Use or Service Order or their performance, shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. All hearings will be conducted by audio conference and video conference. The language of the arbitration shall be English. The arbitrator’s award shall be final and binding on the parties and may be entered and enforced in any court or tribunal of competent jurisdiction.
9.3 Severability
All provisions of these Terms of Use shall be considered as separate terms and conditions, and in the event, anyone 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 these Terms of Use, in which case TRANSFR and the Customer agree to amend these Terms of Use with replacement provisions containing mutually acceptable terms and conditions.
9.4 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. These Terms of Use and any Service Orders are not intended to be nor shall it be construed as a joint venture, association, partnership, or other forms of a business organization or agency relationship.
9.5 Entire Agreement
These Terms of Use and the applicable Service 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. In the case of any conflict or ambiguity between or among the documents, the hierarchy of documents from greater control to lesser control will first be the Service Order and then the Terms of Use. If there are any conflicts between or among two or more Service Orders, a Service Order signed later shall control over a Service Order signed earlier.
9.6 Force Majeure
TRANSFR shall not be liable hereunder for any failure or delay in the performance of its obligations under these Terms of Use, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, government-imposed quarantines, in which event TRANSFR shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. TRANSFR shall use reasonable efforts to notify Customer of the occurrence of such an event within a reasonable period of time.
9.7 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 written notice to the other party. Notices shall be effective when delivered to the applicable address.
9.8 Survival
The provisions of Sections 3.3, 4, 6, 7, and 8 of these Terms of Use shall survive the expiration or termination of the Term for any reason.
