TransientAccess Terms and Conditions
Updated as of January 2021
These terms and conditions govern your access to and use of the TransientX Services. In addition, please read TransientX’s Service Description and EULA for information about our services, and our policies and procedures regarding the collection, use and disclosure of information we receive from users. Such documents, available at https://transientx.com/about/legal form part of our Agreement with you.
By accessing or using TransientX’s Services, websites, and its related mobile and desktop apps:
THE SERVICE IS OWNED AND OPERATED BY TRANSIENTX. THESE TERM AND CONDITIONS ARE A BINDING LEGAL AGREEMENT BETWEEN YOU AND TRANSIENTX REGARDING YOUR USE OF THE TRANSIENTX SERVICE. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE TRANSIENTX SERVICE. BY USING THE TRANSIENTX SERVICE, YOU HEREBY AGREE TO ABIDE BY THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND THAT ENTERING INTO THIS AGREEMENT WILL NOT VIOLATE ANY AGREEMENT THAT YOU HAVE WITH ANY THIRD PARTY.
In this document:
- “TransientX”, “we”, “our” and “us” refer to TransientX, Inc. and its Affiliates;
- “Customer”, “you” and “your” refer to the customer named in the Order Form or a customer authorized to use the TransientX Service by a Partner;
- “Affiliate” in relation to either party means an entity controlling, controlled by or under common control with that party;
- “Agreement” means the Order Form together with these terms;
- “Order Form” means the agreement between the parties to which these Terms are attached, which includes order and pricing details;
- “Initial Term” means the period specified in the Order Form, which shall commence on the provisioning of the Services;
- “Services” means the secure zero trust access services as operated by us from time to time and more particularly described in the Service Description. The specific services to be provided to you will be determined in accordance with the Order Form;
- “Service Description” means the service description in force from time to time, the current version of which is set out on our website;
- “Partner” means a channel partner that has established a commercial relationship with TransientX and has been authorized to transact TransientX Services with end user Customers on behalf of us.
- “End User Agreement” means the agreement between TransientX and an end user of the Services, the current version of which is set out on our website.
2. Orders, pricing, invoicing and payment
- You or a TransientX Partner, as applicable, shall, upon and subject to credit approval by TransientX, purchase the Services by issuing a purchase order specifying the relevant number of users and contract duration (“Purchase Order”). Each Purchase Order must be signed, if requested by TransientX, or (in the case of electronic transmission) sent, by an authorized representative, indicating the specific Service, quantity, price, total purchase price, bill-to address, tax exempt certifications, if applicable, contract reference if any, and any other special instructions. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by you to TransientX, and any such additional or conflicting terms are deemed rejected by TransientX.
- The price for the Services shall be (i) as specified in TransientX’s then-current price list for the applicable country, or (ii) as specified in a written price quotation submitted by TransientX.
- Payment terms shall be net 30 days from the date of invoice. Any sum not paid by you directly or through a TransientX Partner when due shall bear interest from the due date until paid at a rate of (a) 10 per cent per annum, or (b) the maximum rate permitted by law, whichever is less.
- Fees shall be invoiced annually in advance unless otherwise specified on the Order Form. Fees for the Service shall be payable from the date on which TransientX notifies you that the Service is available for use.
- All stated prices are exclusive of any taxes, fees and duties or other similar amounts. You shall pay any taxes relating to the Services you purchase or present an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible. TransientX reserves the right to gross up any Service fee if a withholding prevents TransientX from receiving the amount specified in the Purchase Order.
- The term for the performance of the Services shall be specified on the Purchase Order, and the terms and conditions of this Agreement shall automatically renew for a further 12-month period unless cancelled by providing no less than 60 days’ notice of cancellation prior to the expiry of the existing Term as specified on the Purchase Order.
3. Registration and user account
- When you register for the Services, we will ask you to provide us with certain contact and personal details. Please note that incorrect or outdated information may prevent you from registering and impair our ability to provide you with the Services.
- To log in, you must use your email address and password you entered during the registration process. We may also establish and require from time to time additional or different means of identification and authentication for logging in and accessing your account, or for accessing other services of TransientX (for example, security questions, memorable phrases etc.).
- You agree to maintain your password in absolute confidentiality and not to disclose it to anyone else. We recommend that you change your password frequently and at least once every six months. You are responsible for any outcome resulting from your failure to provide accurate and complete registration details, and for any use or misuse of your account as a result of sharing your details with anyone else.
4. TransientX responsibilities
- Subject to your compliance with this Agreement and your end users’ compliance with the End User Agreement, TransientX grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the executable form of the TransientX software (the “Software”) and to make the Software available to your end users.
- As long as you have paid all applicable fees, TransientX will:
- provide the Services as ordered by you.
- provide all updates commercially released by TransientX; and
- use its reasonable commercial endeavors to resolve technical problems identified with the Service. TransientX does not provide technical support for any third-party hardware or software.
5. Your responsibilities
- You recognize that information sent to and from your end users will pass through TransientX’s systems and accordingly you undertake to comply (and ensure that your end users comply) with all relevant legislation applicable to use of the Internet.
- TransientX reserves the right, but shall have no obligation, to investigate your use of the Services in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
- You agree to defend, indemnify, and hold TransientX, its Affiliates and their respective officers, directors, employees, consultants, and agents harmless from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right.
- It is your responsibility to notify your end users that their device-originated traffic may be monitored and advise them of your acceptable usage policy. You are responsible for obtaining all necessary consents from any end users of the Services.
- TransientX reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with TransientX’s defense of such claim.
6. Ownership of intellectual property
- TransientX and its licensors retain all right, title, and interest in and to the Software, including all intellectual property rights therein. The Software is protected by United States and other laws and international treaties. You may not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
- You acknowledge and agree that portions of the Software, including without limitation the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of TransientX and its licensors.
- TransientX alone shall own all rights, title and interest evidenced by, embodied in, and/or related to the Services, including without limitation all related Intellectual Property Rights in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to the Service. For these purposes “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world and any goodwill associated therewith.
- TransientX’s name, trademarks, service marks, logos, and the product names associated with the Services are owned by TransientX or third parties who have licensed their rights to TransientX, and no right or license is granted hereunder to use them. TransientX acknowledges that your name, trademarks, service marks and logos, are owned by you or third parties who have licensed their rights to you, and no right or license is granted hereunder to use them.
- Neither party may adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to any of the other party’s trademarks, service marks and logos.
- From time to time, TransientX performs scheduled maintenance to update the servers and software that are used to provide the Services. TransientX will make all reasonable attempts to notify you at least five business days in advance of any planned downtime or scheduled maintenance. Notwithstanding the foregoing, you acknowledge that TransientX may, in certain situations, need to perform emergency maintenance without any advance notice.
- TransientX reserves the right to make changes to the scope and content of the Services. Such changes will only become effective upon your renewal of the Services. If you do not agree to such change, then you may terminate the Services upon expiration of the then-current order term.
- TransientX reserves the right to modify and update the features and functionality of the Services. These updates may include any subsequent release or version of the Services containing functional enhancements, extensions, error corrections or fixes which are generally made available at no additional cost to customers who have contracted for the appropriate level of Services. Updates shall not include any release, option, or future product which TransientX licenses separately or which is not included under the applicable level of support. TransientX will give you prior written notice of any material modification or update and will ensure that any modifications or updates do not materially affect the performance or use of the Services.
8. Third party content
- In using the Services, you may access content, products and services provided by third parties. TransientX does not control these third parties or their links, and TransientX is not responsible for the content, products, materials, or practices of any third party. You acknowledge that by using the Services you may be exposed to content that you find offensive, indecent, or otherwise objectionable. You agree that TransientX is not responsible or liable for:
- the availability of such third-party websites or resources;
- the content, quality, nature, reliability, advertising, products, or services on or available from such websites or resources as accessible through use of the Services; or
- any opinions, advice, offers or other information on or available from such websites or resources.
- You should refer to the policies posted by other websites regarding privacy and other topics before you use them. If you choose to purchase any products or services from a third party, your relationship is directly with the third party. You agree that TransientX is not responsible or liable for any loss or damage whatsoever which you may incur from dealing with any third party.
- For the purposes of this Agreement “Confidential Information” means proprietary and confidential Information received by either party from the other party in connection with this Agreement. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party.
- The parties acknowledge that in connection with this Agreement and their relationship, they may obtain Confidential Information. The receiving party shall at all times keep in trust and confidence all such Confidential Information and shall not use such Confidential Information other than as expressly authorized by the disclosing party under this Agreement, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent. Notwithstanding the above, TransientX shall be authorized to disclose your Confidential Information to contractors or employees of a TransientX Affiliate who have a legitimate business need to have access to such information.
- The receiving party shall immediately return to the disclosing party all Confidential Information (including copies thereof) in the receiving party’s possession, custody, or control upon termination or expiration at any time and for any reason of this Agreement.
- The obligations of confidentiality in this Section shall not apply to information which
- has entered the public domain, except where such entry is the result of the receiving party’s breach of this Agreement;
- prior to disclosure hereunder was already rightfully in the receiving party’s possession; or
- subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party.
- The receiving party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that (where permitted to do so) the receiving party provides (i) prior written notice to the disclosing party of such obligation and (ii) the opportunity to oppose such disclosure.
10. Data privacy
- We will only process data (whether personal data or otherwise) supplied to us or otherwise obtained by us in connection with this Agreement (the “Contract Data”) to the extent and in such manner as is necessary for the provision of the Services under this Agreement or is required by law or any regulatory body. The parties acknowledge that TransientX will only process such data as a data processor on your behalf.
- We will employ appropriate organizational and technical measures against unauthorized or unlawful processing of the Contract Data and against accidental loss, or destruction of, or damage, alteration, or disclosure to the Contract Data. We will ensure a level of security appropriate to the harm that may result from such unauthorized or unlawful processing or accidental loss, destruction, damage, alteration, or disclosure.
- We will promptly assist you in responding to any subject information requests received by you in respect of any of the Contract Data.
- We shall ensure that our employees who have access to the Contract Data for the purpose of this Agreement have undergone appropriate training in the care and handling of personal data.
- We undertake to notify you as soon as reasonably practicable of any incidents of unauthorized and/or unlawful access or disclosure of Contract Data.
- We will indemnify you and keep you indemnified against any costs, charges, claims (including third party claims), damages, expenses, or losses which you may incur as a result of any breach of any of our obligations contained in this Section 10.
- Upon termination or expiry of this Agreement we will cease processing the Contract Data within 30 days of the expiry of this Agreement, and save as may be required for audit, regulatory purposes or to comply with any law, we will promptly and safely either return all Contract Data to you or destroy the Contract Data (whether held on electronic, paper, or other format).
- You agree to abide by all applicable local, state, national and foreign laws, treaties, and regulations in connection with your use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal data. You further agree to comply with any instructions concerning access to and/or use of the Services that TransientX may issue from time to time.
- TransientX acknowledges that you may be subject to laws or regulations applicable to your business relating to data privacy and information security (such as Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act, Health Information Technology for Economic and Clinical Health (HITECH) Act, Fair Credit Reporting Act, or Office of Controller of Currency guidelines) (hereinafter “Customer Regulations”). The parties do not expect that TransientX will use or have access to the types of information covered under the Customer Regulations in a way that would require TransientX to become subject to Customer Regulations. While TransientX may not itself be subject to Customer Regulations, TransientX will, upon request, provide you with commercially reasonable assistance and information necessary to enable you to comply with its own obligations under any applicable Customer Regulations. The parties acknowledge that TransientX is not agreeing to become subject to any Customer Regulations as a result of this Agreement (except where such regulations might already apply to TransientX as a result of TransientX’s own business).
- TransientX warrants that the Services, when properly installed and properly used, will substantially conform to the Service Description. This warranty is made solely to the Customer and is not transferable to any end user or other third party. Your sole and exclusive remedy for breach of warranty shall be, at TransientX’s option, prompt correction of any error or nonconformity; or termination of this Agreement and return of the portion of the service fees paid to TransientX by you for such non-conforming Services.
- TransientX shall have no liability for breach of warranty under this Section or otherwise for breach of this Agreement if such breach arises directly or indirectly out of or in connection with: (i) any third-party hardware software, services, or system(s); (ii) any unauthorized modification or alteration of the Services or related software; (iii) any unauthorized or improper use or operation of the Services.
- Except as specified above, TransientX hereby disclaims and you hereby waive all representations, conditions, and warranties (whether express, implied, or statutory), including without limitation, any warranty or condition (i) of merchantability, fitness for a particular purpose, non-infringement, title, satisfactory quality, quiet enjoyment, accuracy, or (ii) arising from any course of dealing, course of performance, or usage in the industry.
- The warranties and related remedies in this Section are exclusive and in lieu of all other warranties or remedies, express, statutory, or implied. The disclaimers and exclusions in this Section shall apply even if the express warranties and limited remedies in this Section fail of their essential purpose.
- Because of the continuous evolution of the sophistication of network threats and infrastructure technologies, TransientX does not make, and it is acknowledged that TransientX cannot make any warranty or representation that any system attack or impacting incident will be detected or prevented.
- You acknowledge that the Services are not designed or intended by TransientX for use or resale in, or for incorporation into products or services used in high-risk activities. TransientX specifically disclaims any express or implied warranty of any kind with respect to the use of the Services in connection with any high-risk activity.
Email support is available 24 hours a day, 7 days a week (24 x 7). Phone support is available 5 days a week from 9AM to 5 PM (Eastern Time).
Our global Support teams are ready to assist with service requests, incidents or general queries that may arise during routine operation of the service. For data privacy reasons, technical support services can only be provided to administrators. All employees who will contact Support must therefore have been configured as administrators.
13. Patent and copyright infringement
- TransientX will defend any claim against you that the use of the Services hereunder infringes third party patents or copyrights (“Claim”) and will indemnify you against the final judgment entered by a court of competent jurisdiction or any settlements arising out of a Claim, provided that you:
- promptly notify TransientX in writing of the Claim; and
- cooperate with TransientX in the defense of the Claim, and grant TransientX full and exclusive control of the defense and settlement of the Claim and any subsequent appeal.
- If a Claim is made or appears likely, TransientX shall seek to procure for you the right to continue using the Services or replace or modify the Services in a way that is at least functionally equivalent. If TransientX determines that none of those alternatives is reasonably available, then the Services will be terminated and, if the Services was prepaid, TransientX will refund to you the remaining value of the Services calculated on a pro-rated basis for the remainder of the term.
- TransientX has no obligation for any Claim based on:
- compliance with any designs, specifications, or instructions provided by you or a third party on your behalf;
- modification of the Services by you or a third party;
- combination, operation, or use of the Services with non-TransientX products, software, or business processes.
- This Section states TransientX’s entire obligation and your exclusive remedy regarding any claims for intellectual property infringement.
14. Limitation of liability
- All liability of TransientX, its Affiliates and their respective officers, directors, employees, agents, and suppliers collectively for claims arising under this Agreement or otherwise howsoever arising shall be limited to the value of the Services under this Agreement during the 12-month period preceding the event or circumstances first giving rise to such liability. This limitation of liability is cumulative and not per incident (i.e. the existence of two or more claims will not enlarge this limit).
- In no event shall either party or its Affiliates or their respective officers, directors, employees, agents, or suppliers be liable for any special, incidental, indirect, or consequential damages, or lost revenue, lost profits, or lost or damaged data, whether arising in contract, tort (including negligence), or otherwise, even if such party has been informed of the possibility thereof. This subsection shall not apply in relation to damages resulting from your breach of the applicable license provisions.
- Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
15. Term and termination
- The term for the performance of the Services shall be specified on the Order Form, and the terms and conditions of this Agreement shall survive and apply to the Services until completion. Upon the expiration of the Initial Term, the Service may be renewed by your submitting a further Purchase Order.
- This Agreement and the Services may be terminated immediately by either party upon written notice:
- if the other party materially breaches any provision of this Agreement and the breach is not capable of being cured or if the breaching party fails to cure such breach within 30 days after being required to do so by the party not in breach; or
- the other party ceases to carry on business as a going concern; or
- the other party becomes or may become the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation; or
- a receiver or similar officer is appointed with respect to the whole or a substantial part of the other party’s assets; or
- an event similar to any of the foregoing occurs under applicable law with respect to the other party; or
- if so, directed by a court or competent authority.
- If any undisputed fee is not paid when due and payment has not been received within 10 days after notice of such past due payment, TransientX may withhold the provision of the Services until all amounts past due are paid in full, and/or terminate immediately this Agreement and the Services.
- Upon termination of the Agreement, you shall pay for the Services up to the effective date of termination.
- TransientX shall have the right to suspend or terminate the Services, and to take such defensive action as it considers necessary in the event of any attack upon the Services. An attack is a deliberate third-party action that significantly affects the Services, e.g., a Distributed Denial of Service (DDoS) attack.
- Neither party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld or delayed, provided that TransientX may, without your consent, assign the right to receive any amount due. Notwithstanding the foregoing, each party may assign this Agreement and any right or obligation under it to an Affiliate without the other party’s approval. Notwithstanding any assignment by you, you shall remain liable for the payment of all amounts due under this Agreement
- TransientX reserves the right to subcontract Services to a third party to provide the Services to you. Any such subcontract shall not relieve TransientX of any of its obligations under this Agreement.
- All notices required or permitted under this Agreement will be in writing and will be deemed given one day after deposit with a commercial express courier specifying next day delivery (or two days for international courier packages specifying two-day delivery), with written verification of receipt. All communications will be sent to the addresses specified on the Purchase Order or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph. Notwithstanding the above, notices regarding general changes in pricing, policies or programs may also be by posting on TransientX.com or by e-mail.
- This Agreement is the complete agreement between the parties concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties, except as agreed between the parties. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein. This Agreement may only be modified by a written document executed by both parties.
- TransientX reserves all rights not expressly granted to you under this Agreement.
- The waiver by either party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.
- If one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice with immediate effect to the other.
- In any suit or proceeding relating to this Agreement the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement and shall survive expiration or termination and shall not be merged into any such judgment.
- This Agreement does not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of this Agreement. Each party hereto is an independent contractor.
- This Agreement may be entered into, extended, renewed or amended by electronic means by accepting terms and conditions on-line and the provisions of any such extension, renewal or amendment shall for all purposes be legally enforceable and binding on the parties as if the Agreement were entered into, extended, renewed or amended in writing and signed by all parties. This Agreement shall be deemed signed and thus the terms hereof agreed to, if you click on the ‘Accept’ button and thereby accept this Agreement. All references to writing in this Agreement shall be deemed to include any on-line acceptance, and all references to signature shall include on-line acceptance. You waive any challenge to the validity or enforceability of this Agreement or any renewals, extensions or amendments to this Agreement or the terms of any of the foregoing on the grounds that the terms of any agreement, renewal, extension, or amendment were presented on-line or electronically or acceptance of such agreement renewal, extension or amendment was electronically transmitted or accepted.
- You agree that these terms are not intended to confer and do not confer any rights or remedies upon any person other than you and TransientX.
- These Terms shall be governed by and interpreted in accordance with the laws of the State of New Jersey excluding that body of law pertaining to conflict of laws. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the courts of New Jersey. Notwithstanding the foregoing, each party shall have the right at any time to institute an action in any court of proper jurisdiction for injunctive or other equitable relief.