TERMS OF USE

These Terms of Use (the “Terms”) govern your access to and use of websites, applications, and services (the “Services”) that are provided by Maxx Innovations, LLC d/b/a Transend (“Transend” or “us” or “we”) and linked to these Terms.  IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SERVICES.

These Terms govern use of the Services

1.             Use of Services.  These Terms, which incorporate our Privacy Policy, constitute a legally-binding agreement between Transend and you. By using the Services you agree to be bound by and comply with these Terms.  You may only use the Services in compliance with these Terms.  The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are at least 18 years old.

2.             Organizations.  If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you” and “your” will refer to both you as an individual and to that organization.

3.             Services Ownership.  The Services and all associated content (including any derivatives of or enhancements to the same), and all intellectual property rights to the same (including trademarks, service marks, trade names, trade dress), that appear in connection with the Services, are owned by or licensed to Transend.

4.             License.  Transend grants you a revocable right to use the Services solely in accordance with these Terms.  The Services are being licensed, not sold, to you by Transend only for use under the Terms. You do not acquire any right, title or interest in or to the Services or any associated content other than the limited license granted to you by these Terms. Any rights not expressly granted to you in these Terms are expressly reserved.

5.             Pricing; Availability.  Prices and availability of products are subject to change without notice.  Pricing is not guaranteed until you complete the process of purchasing any particular product.  The inclusion of any products on the Services does not imply or warrant that these products will be available.

6.             Risk of Loss.  All items purchased from Transend are made pursuant to a shipment contract.  This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.

7.             Transactions.  If you attempt to purchase a product using the Services (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction, including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.  YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD OR OTHER PAYMENT METHOD UTILIZED IN CONNECTION WITH ANY TRANSACTION.  By submitting such information to Transend, you grant Transend the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf.  Verification of information may be required prior to the acknowledgement or completion of any Transaction.

8.             Privacy Policy.  Any information you provide to us is subject to our Privacy Policy, which is incorporated in these Terms and governs our collection and use of your information. By using the Services you consent to the collection and use of this information as provided by our Privacy Policy.

9.             Account Information.  You agree to provide true, accurate and complete registration information, and you will promptly provide an update if any of this information changes.  You are solely responsible for safeguarding and maintaining the confidentiality of your login ID and password.  You may not resell, assign, distribute, transfer or otherwise provide your subscription, your login ID and/or password to any third party.  You are responsible for any activity conducted under your account.  You must immediately notify Transend of any unauthorized use of your account.

10.          Prohibited Conduct.  You must not transmit or otherwise provide any harmful or objectionable content using the Services, including content that (i) violates or infringes in any way upon the rights of others, such as any copyright, trademark, patent, trade secret, moral right, or other proprietary right of any person or entity, (ii) impersonates another or is fraudulent, unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, abusive, or otherwise reasonably objectionable, or (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.  You also will not upload spyware or any other malicious software to the Services.  You will not use the Services in a manner harmful to Transend or any third party.

11.          Copyright Violation

a.     If you believe that your copyright in any material has been infringed by material available on the Service, please provide us with all of the following information in the form prescribed by Section 512 of Title 17, United States Code:

                                          i.    a description of the copyrighted work you claim has been infringed,

                                         ii.    a description of the material that you claim is infringing, identified with sufficient detail for us to identify it,

                                        iii.    your address, telephone number and email address,

                                        iv.     a statement by you that you have a good faith belief that the disputed use is not authorized,

                                         v.     a physical or electronic signature of the person authorized to act on behalf of the copyright owner's interest, and

                                        vi.     a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the copyrighted work that is claimed to be infringed.

b.     You understand and agree that: (1) Transend assumes no liability or responsibility for any third party content or material of any kind that is submitted to or posted on the Services by you or by any other users or third parties, and (2) Transend is merely a transmitter of any such content, and is acting solely as an Internet Service Provider as such term is defined in the Digital Millennium Copyright Act (DMCA).

c.     We will promptly address any alleged infringement.  Please direct all such notifications to:  privacy@transmaxx.com and insert “Re: Copyright Violation” in the subject line header of the email.

12.          User Content. 

a.     We may now or in the future permit users to post, upload, transmit through, or otherwise make available on the Services (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials (“User Content”).  Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content.  We do not guarantee any confidentiality with respect to User Content even if it is not published on the Services.  It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.

b.     You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.  You will not submit any User Content that is illegal, offensive, or inappropriate.

c.     By submitting User Content to us, simultaneously with such posting, you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, and publish the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation, (i) in connection with our business; and (ii) in connection with the businesses of our successors, parents, subsidiaries, affiliates and their related companies.  We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content.

13.          Third-Party Websites.  Links to third-party websites are provided for your convenience and reference only. We have no control of these sites, and we are not responsible for their content. We do not endorse, and are not responsible in any way for, any content on these sites and we expressly disclaim any endorsement or responsibility for such content.  When you travel from the Services to another website, whether through links provided on the Service or otherwise, you will be subject to the privacy policies (or lack thereof) of these sites. We caution you to use good judgment and to assess the privacy policy of these sites before you provide any personal information.

14.          No Representations and Warranties.  AS WITH THE PURCHASE OF ANY PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.  YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR OWN RISK.  THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, FOR USE BY YOU AT YOUR OWN RISK WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.  WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, TRANSEND AND ITS OFFICERS, MEMBERS, MANAGERS, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “TRANSEND PARTIES”) DISCLAIM ANY AND ALL WARRANTIES (1) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE CERTAIN RESULTS; (2) CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR COMPLETENESS OF THE  SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES; (3) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THE SERVICES.  BY ACCEPTING THESE TERMS OF USE YOU ALSO AGREE THAT YOU HAVE REVIEWED AND ACCEPTED TRANSMAXX POLICIES REGARDING PRODUCT WARRANTY AND RETURNS AS PUBLISHED AT WWW.TRANSMAXX.COM.

15.          Waiver.  TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL TRANSEND OR THE TRANSEND PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT TRANSEND OR THE TRANSEND PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE SERVICES.  YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.

16.          Liability.  UNDER NO CIRCUMSTANCES SHALL TRANSEND OR THE TRANSEND PARTIES BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE ANY SERVICES.  THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES OF ANY KIND.  THE ALLOCATION OF RISK SET FORTH IN THESE TERMS IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TRANSEND.  YOU AGREE THAT YOU MAY ONLY COMMENCE A CAUSE OF ACTION RELATED TO THE SERVICES WITHIN ONE (1) YEAR OF SUCH ACTION ACCRUING, AND ANY ATTEMPT TO BRING SUCH AN ACTION AFTER SUCH ONE (1) YEAR PERIOD IS BARRED.  Some jurisdictions do not permit limitations of liability and in those jurisdictions some of the foregoing limitations may not apply to you. The limitations in these Terms shall apply to the fullest extent permitted by law.

17.          Indemnification.  You agree to indemnify and hold harmless Transend and the Transend Parties from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) brought by third-parties arising out of, related to, or that may arise in connection with any actual or alleged violation or breach of any of the representations, warranties, agreements or promises made by you in these Terms.

18.          Modification.  Transend may modify these Terms.  You should review the Terms regularly.  Transend will post notice of modifications to these Terms on the Services.  If you do not agree to the modified terms for the Services, you should discontinue your use of the Services.

19.          Arbitration

a.     You and Transend each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents or information and the proposed resolution. You agree to contact us with disputes by contacting us at 30305 Solon Road, Cleveland, Ohio 44139. We will contact you based on the contact information you have provided us.

b.     If you and Transend cannot resolve any dispute after 30 days, the party seeking to pursue a claim will submit the claim to arbitration consistent with this section. The parties understand that they would have had a right or opportunity to litigate disputes through a court and to have a judge or jury decide their case, but they choose to have any disputes resolved through arbitration.

c.     Any claim or dispute between you and Transend, and any claim by either against any agent, employee, successor, or assign of the other, including third parties, whether related to these Terms or otherwise, including past, present, and future claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, shall be resolved by binding arbitration administered by the JAMS under its rules and procedures in effect when the claim is filed. The rules and procedures and other information, including information on fees, may be obtained from JAMS' website (www.jamsadr.com) or by calling JAMS at 949-224-1810.

d.     Either You or Transend may bring applicable claims in small claims court. Also, you and Transend each agree that any arbitration will be solely between you and us, not as part of a classwide claim. If any court or arbitrator determines that this classwide restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the classwide dispute must be brought in court.

e.     Transend may pursue equitable relief in a court in connection with the Services without any obligation to pursue the claims in arbitration.

f.      Nothing in this Section 19 will limit Trasend’s ability to seek equitable relief in any court of competent jurisdiction.

20.          Class Action Waiver.  TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AND TRANSEND EACH WAIVE ANY RIGHT TO PURSUE A DISPUTE ON A CLASSWIDE BASIS, INCLUDING BY JOINING A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR PROCEEDING.

21.          Jury Trial Waiver.  TO THE EXTENT ALLOWED BY LAW, YOU AND TRANSEND EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.

22.          Governing Law; Venue.  These Terms and the use of the Services will be governed by Ohio law without regard for its conflict of laws principles.  For any claims not subject to the arbitration provisions of these Terms, all claims arising out of relating to these Terms or the Services must be litigated in the state or federal courts located in Cincinnati, Ohio and you and Transend consent to the personal jurisdiction of such courts.

23.          No Third-Party Beneficiaries.  These Terms do not create any third-party beneficiary rights.

24.          Complete Agreement.  These Terms constitute the entire and exclusive agreement between you and Transend with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services.  The headers for these Terms are for convenience only and will not affect the interpretation of these Terms.  If a provision of these Terms is found unenforceable the remaining provisions will remain in full force and effect, and an enforceable term will be substituted reflecting our intent as closely as possible.

25.          Assignment.  Transend may assign any of its rights under these Terms to an affiliate or to any successor in interest to the business of Transend.  You may not assign your rights under these Terms and any such purported assignment is void.

26.              Waiver of Terms.  The failure of Transend to enforce these Terms for any period of time does not constitute a waiver of its right to enforce these Terms.