1.1    Services. Upon Subscriber’s payment of the Annual Fee (defined herein) and subject to the terms of this Agreement, Transparency-One will provide Subscriber the Services.

1.2    Support. Subject to the terms hereof, Transparency-One will provide Subscriber with technical support services in accordance with its standard practice.

1.3    Platform Modifications. Transparency-One is free to modify, upgrade, or otherwise change the technical prerequisites of the Platform during the term of this Agreement in accordance with business decisions and good industry practice. This may include, but is not limited to, changes made as part of periodic improvements to the Platform.

1.4    Security. Transparency-One shall take commercially reasonable measures to protect Subscriber Data against, theft, misappropriation, damage, or disclosure during the term of this Agreement and to implement good industry practices in compliance with applicable laws. 

2.1    License Grant to the Platform. Transparency-One hereby grants to Subscriber a non-exclusive, nontransferable, non-sublicensable license during the term of this Agreement to use the Platform. Any rights not expressly granted by Transparency-One to Subscriber under this Agreement are excluded. 

2.2    Restrictions. Subscriber will not, directly or indirectly, (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Platform, documentation, or related data; (ii) modify, translate, or create derivative works based on the Platform (except to the extent expressly permitted by Transparency-One or authorized within the Platform); (iii) use the Platform to offer services to third parties, including but not limited to timesharing, facilities management, or outsourcing; (iv) use the Platform for the benefit of a third party; or (v) remove any proprietary notices. 

2.3    Subscriber Use. Subscriber represents, warrants, and covenants that Subscriber and its employees and Users will comply with the terms and conditions set out in this Agreement, Transparency-One’s standard published policies then in effect, and all applicable laws and regulations. 

2.4    Subscriber Responsibilities. 
(a)    Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform and Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers. Subscriber shall also be responsible for maintaining the security of its equipment, accounts, passwords (including but not limited to administrative and User passwords), and files. 

(b)    Transparency-One may need Subscriber’s assistance with getting its suppliers subscribed to the Platform and paying all applicable fees. As part of the implementation process, Subscriber may provide Transparency-One with contact information for Subscriber’s suppliers (“Supplier Contact Information”) so that Transparency-One or its agents may assist Subscriber with alerting those suppliers about the need to subscribe to the Platform and pay all applicable fees. By providing Supplier Contact Information to Transparency-One, Subscriber is instructing Transparency-One to use that Supplier Contact Information to contact Subscriber’s suppliers on Subscriber’s behalf to inform them about the need to sign up for the Platform and provide them with information about setting up their Platform accounts.

(c)    Subscriber is responsible for ensuring only authorized Users access Subscriber’s Platform account and for all activities conducted through its Platform account. Subscriber shall implement appropriate technical and procedural methods to prevent access to or use of the Platform other than as explicitly authorized under this Agreement. 

2.5    Data Responsibilities. Subscriber agrees that Transparency-One is not responsible for any inaccurate records or reports generated or disclosed through the Platform resulting in any way from the inaccuracy of any Supplier Data, Subscriber Data, or other data provided to Transparency-One by Subscriber or third parties. Transparency-One is committed to helping Subscriber use the Platform as part of its supply chain management and mapping processes, but Subscriber alone has the ultimate responsibility for determining which Suppliers to use and for managing those Suppliers in the course of their performance of services for Subscriber. 

3.1    Fees. Subscriber shall pay an annual subscription fee (the “Annual Fee”) and a one-time account set-up fee (the “Set-Up Fee”) for the Services and access to the Platform (collectively, the “Platform Subscription”). The Annual Fee and the Set-Up Fee are subject to change on an annual basis. 

3.2    Taxes. Fees invoiced hereunder do not and will not include any taxes levied by or due to any duly authorized taxing authority. Subscriber will pay all applicable taxes and other government charges, if any, however designated, derived from or imposed on the transactions contemplated hereby, including sales, value-added, use, transfer, withholding, privilege, excise, and other taxes and duties, except for taxes based on Transparency-One’s income.
 

4.1    Term. The term of each Platform Subscription is one year. If Subscriber is a first-time Platform subscriber, Subscriber will activate its Platform Subscription by paying the initial Annual Fee and the Set-Up Fee for the first subscription year, and Subscriber’s Platform Subscription will begin on the day Transparency-One receives payment (the “Activation Date”). The parties have the option to renew or not renew the Platform Subscription on an annual basis. Subscriber may renew its Platform Subscription for additional one-year terms by paying the then-current Annual Fee on or before the anniversary of the Activation Date. 

4.2    Termination by Subscriber.  Subscriber may cancel its subscription and terminate this Agreement at any time by notifying Transparency-One in writing. However, any fees paid prior to cancellation will not be refunded.

4.3    Termination by Transparency-One. Transparency-One may, at its option, suspend or stop providing our Services to any User who violates or is suspected of violating this Agreement, uses our Services in an inappropriate manner, or engages in any actions that we believe are harmful to Transparency-One or any other Transparency-One subscriber.  Transparency-One may terminate this Agreement in the event of a material breach of this Agreement by Subscriber or any of Subscriber’s employees or Users. 

4.4    Effect of Termination. Upon any termination of this Agreement, Subscriber will immediately discontinue all use of the Platform and Services.

5.1    Ownership of the Platform. Transparency-One retains all right, title, and interest in and to the Platform, and Subscriber acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.

5.2    Ownership and Use of Subscriber’s Data. Subscriber retains all right, title, and interest in and to Subscriber Data, and Transparency-One acknowledges that it neither owns nor acquires any additional rights in and to Subscriber Data not expressly granted by this Agreement. Subject to the foregoing, Subscriber hereby grants to Transparency-One a non-exclusive, non-transferable right and license to use Subscriber Data for the purpose of performing the Services. As part of our Services, Transparency-One may disclose aggregate statistics and anonymized data derived from Subscriber Data for the purposes of benchmarking and providing comparative and other generalized analyses and reports (“Benchmarking”). By uploading, submitting, or entering Subscriber Data into the Platform Subscriber is giving Transparency-One permission to retain and use Subscriber Data for Benchmarking.

5.3    Subscriber Data Management. Subscriber acknowledges and agrees that: (a) Subscriber is solely responsible for any Subscriber Data and, (b) Transparency-One is under no obligation to monitor such Subscriber Data and cannot in any way be held responsible for such Subscriber Data. Subscriber represents and warrants that Subscriber Data will not be inaccurate or incomplete and will not infringe on the intellectual property rights of any third party. In the event that Transparency-One reasonably believes that Subscriber Data does or may infringe on any third-party’s rights, or if Subscriber uses the Platform for illegal purposes under applicable law, Transparency-One reserves the right, at its sole discretion, to delete such Subscriber Data and to deny access to such Subscriber Data and access to the Platform until such situation is resolved between the parties. 

5.4    Supplier Data. Through Transparency-One, Subscriber and its Users will have access to Supplier Data and data uploaded or entered into the Platform from third-party data sources, and, in certain instances, by Transparency-One (collectively, “TCY Content”). Using the Services does not give Subscriber or its Users ownership of any intellectual property rights in TCY Content. TCY Content is the sole responsibility of the entity that makes it available in the Platform, and Subscriber acknowledges and agrees that Transparency-One is not liable for any inaccurate or incomplete TCY Content submitted by third parties or any inaccuracies in reports or records generated through the Platform resulting from inaccurate or incomplete data provided to Transparency-One by third parties. TCY Content is made available to Subscriber and its Users solely for supply chain management and mapping purposes, and, without Transparency-One’s written permission and, if applicable, the permission of any other applicable parties, neither Subscriber or its Users may copy, reproduce, alter, modify, create derivative works of, disclose outside of Subscriber’s organization, or otherwise use any TCY Content.

5.5    Non-Disclosure. Subscriber shall keep in confidence and protect the Platform and TCY Content from disclosure to unauthorized parties and restrict access to and use as provided in this Agreement. Subscriber acknowledges that unauthorized disclosure of the Platform and TCY Content may cause irreparable harm and substantial economic loss to Transparency-One or its third-party providers. 

5.6    Feedback. Subscriber may provide Transparency-One with feedback, comments, and recommendations regarding the functionality and performance of the Platform, including, without limitation, identifying potential errors and improvements (collectively, the “Feedback”).

Transparency-One shall have the unrestricted right to use the Feedback provided by Subscriber in connection with the Platform, or this Agreement at its sole discretion, including for improvement or enhancement, and, accordingly, Transparency-One shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.

6.1    Confidential Information. For purposes of this Agreement, “Confidential Information” means all information Subscriber provides to Transparency-One that (i) Subscriber or any of its Users identifies as “confidential” or “proprietary” or (ii) based on all the circumstances, Transparency-One should reasonably understand to be confidential or proprietary information of Subscriber. Notwithstanding the above, “Confidential Information” does not include any information that (A) is or becomes public information other than because of Transparency-One’s unauthorized disclosure, (B) Transparency-One receives in good faith from a third party without knowledge of any breach of any confidentiality duties to Subscriber, (C) Transparency-One develops independently without using or referencing any Confidential Information, or (D) Subscriber Data to the extent that Subscriber elects to make visible through the Platform. 

6.2    Treatment of Confidential Information. Transparency-One acknowledges the highly sensitive and confidential nature of Subscriber’s Confidential Information. Transparency-One will not disclose any Confidential Information to any third parties other than as required by law, in accordance with Transparency-One’s privacy policies, or with the consent of Subscriber. Transparency-One will ensure that Transparency-One’s employees and independent contractors are bound by reasonable confidentiality obligations.

7.1    Review Services. Transparency-One offers certain review services for Supplier Data (“Review Services”). To the extent that Subscriber opts to use Review Services, Transparency-One will provide the Review Services using a commercially reasonable level of skill and care, but Transparency-One makes no warranty that the Review Services will be error free. The Review Services are not intended, and should not be relied upon, as a substitute for professional advice or independent due diligence. Subscriber retains ultimate liability and responsibility for determining the actual conformance of Suppliers with applicable Subscriber and regulatory requirements, and for managing, evaluating, and approving Suppliers to provide material to Subscriber. Subscriber acknowledges and agrees that Transparency-One is not liable for any inaccurate information or data submitted by third parties or Suppliers in connection with the Review Services, or any inaccuracies in reports or records generated through the Review Services resulting from such inaccurate information. 

THE REVIEW SERVICES AND THE INFORMATION AVAILABLE THROUGH OR IN CONNECTION WITH THE REVIEW SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TRANSPARENCY-ONE DISCLAIMS ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. TRANSPARENCY-ONE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, VALIDITY, ACCURACY, RELIABILITY OF, OR THE RESULTS OF THE REVIEW SERVICES OR THE INFORMATION AVAILABLE THROUGH OR IN CONNECTION WITH THE REVIEW SERVICES. TRANSPARENCY-ONE MAKES NO WARRANTY THAT: (I) THE REVIEW SERVICES WILL MEET THE REQUIREMENTS OF SUBSCRIBER, OR (II) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED THROUGH OR IN CONNECTION WITH THE REVIEW SERVICES WILL MEET THE EXPECTATIONS OF SUBSCRIBER.

8.1    General Warranty. Transparency-One will provide the Services using a commercially reasonable level of skill and care and shall conduct itself in a professional and workmanlike manner. 

8.2    Warranty Limitation. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, TRANSPARENCY-ONE DOES NOT MAKE ANY SPECIFIC PROMISES OR COMMITMENTS ABOUT THE SERVICES, THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET SUBSCRIBER’S NEEDS. TRANSPARENCY-ONE PROVIDES THE SERVICES “AS IS.” SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, SUCH AS THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, TRANSPARENCY-ONE EXCLUDES ALL WARRANTIES.

TO THE EXTENT PERMITTED BY LAW, TRANSPARENCY-ONE WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. IN ALL CASES, TRANSPARENCY-ONE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

TO THE EXTENT PERMITTED BY LAW, TRANSPARENCY-ONE’S TOTAL LIABILITY FOR ANY CLAIMS UNDER THIS AGREEMENT OR RELATING TO THIS AGREEMENT AND THE SERVICES, INCLUDING FOR BREACH OF THIS AGREEMENT OR ANY WARRANTY CLAIMS, IS LIMITED TO THE AMOUNT SUBSCRIBER PAID TRANSPARENCY-ONE TO USE THE SERVICES IN THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. 

10.1    Subscriber agrees to indemnify and hold harmless Transparency-One and its Affiliates, officers, agents, and employees from any claim, suit, action, costs, and damages (including reasonable attorney’s fees) by a third party arising from or related to a violation of this Agreement by Subscriber.

10.2    Transparency-One agrees to indemnify and hold harmless Subscriber and its Affiliates, officers, agents, and employees from any claim, suit, action, costs, and damages (including reasonable attorney’s fees) by a third party arising from or related to a violation of this Agreement by Transparency-One.

11.1    Transparency-One will process Subscriber Personal Data in accordance with the terms of the Personal Data Processing Addendum.

12.1    No Third-Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Transparency-One and Subscriber any rights, remedies, or other benefits under or by reason of this Agreement.

12.2    Assignment and Transfer. The Parties may not assign this Agreement without the other Party’s prior written approval, and any attempt to do so will be void. Notwithstanding the foregoing, each Party may assign this Agreement in its entirety to a surviving person or entity under a merger or acquisition, but only if such assignee agrees to be bound by all of the applicable provisions of this Agreement and the assignor will have no rights under this Agreement.

12.3    Equitable Relief. Either Party may enforce this Agreement and any of its provisions by injunction, specific performance, or any other equitable relief, without prejudice to any other rights and remedies that such Party may have. 

12.4    Attorneys Fees. Each Party will have the right to recover reasonable attorneys’ fees in any action in law or equity brought to enforce the terms of this Agreement.

12.5    Governing Law; Venue. The laws of the State of Delaware, USA, will govern this Agreement and the resolution of any disputes related to this Agreement; however, Subscriber is responsible for compliance with the laws of any country from which Subscriber or its Users access the Services. All claims arising out of or relating to this Agreement or the Services will be resolved exclusively in the federal or state courts of New Castle County, Delaware, USA, and Subscriber and Transparency-One consent to personal jurisdiction in those courts.

12.6    Notice. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), by first class mail (certified or registered), or by email. Notices will be deemed effective (i) three working days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by e-mail (so long as no “bounce-back”, system error message or other notification of non-delivery is received by the sender).  

 Transparency-One’s address shall be as follows:
      Transparency-One, Inc.
      3232 McKinney Ave. Suite 1500
      Dallas, Texas 75204 USA 
      Attn.: Legal Department    
      Email: info@transparency-one.com

Subscriber’s address shall be as set forth in the header herein unless otherwise subsequently modified by Subscriber in writing. 

12.7    No Exclusivity. Nothing in this Agreement shall be construed as providing any exclusivity from Transparency-One to Subscriber. 

12.8    Complete Understanding. This Agreement constitutes the full and complete understanding of the Parties and supersedes all prior or contemporaneous understandings and agreements, including, without limitation, any confidentiality or non-disclosure agreements. TRANSPARENCY-ONE DOES NOT AGREE TO STANDARD, BOILERPLATE, OR OTHER TERMS AND CONDITIONS IN ANY PURCHASE ORDERS OR ORDER FORMS FROM SUBSCRIBER. If Subscriber’s purchasing process requires the use of purchase orders, Subscriber agrees that no terms or conditions in any of Subscriber’s purchase orders will apply or modify this Agreement.

12.9    Amendment. Transparency-One reserves the right to amend this Agreement from time to time to account for new laws and technologies and changes to our Services, and for other purposes. In the event that Transparency-One amends this Agreement, Transparency-One will conspicuously post notice on the Transparency-One website.

12.10    Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, the remainder of this Agreement will continue in full force and effect. 

12.11    Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and together which shall constitute the same instrument.    

13.1    The following terms shall have the meanings as set forth below unless otherwise indicated:

“Affiliate” means, for a Party, any other entity that controls, is controlled by, or under common control with, the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other entity through more than fifty percent (50%) of the voting securities in the entity.

“Personal Data” means data that, alone or in combination with other information, can be used to identify a natural living person.

“Subscriber Data” means all data uploaded or entered into the Platform about Subscriber or its workers, whether done by or on behalf of Subscriber, by a third party, or through Subscriber’s account.

“Subscriber Personal Data” means any Personal Data concerning Subscriber’s employees that Transparency-One collects from Subscriber or its Users.  For purposes of clarity, “Subscriber Personal Data” does not include any Personal Data that a Supplier or another Transparency-One subscriber (other than Subscriber) provides to Transparency-One or enters into the Platform.

“Supplier” means an entity or individual with a supplier subscription to the Platform.

“Supplier Data” means information uploaded or entered into the Platform about Supplier or its workers, whether done by or on behalf of a Supplier, by a third party, or through a Supplier’s account.

“User” means an individual authorized to access the Platform and use the Services on Subscriber’s behalf. Each User must (i) be an individual who is an employee of Subscriber or is an independent contractor working for Subscriber for whose actions Subscriber is responsible, and (ii) use the Services on behalf of Subscriber for Subscriber’s supply chain management and mapping processes.  For purposes of this definition, “Subscriber” includes Subscriber’s Affiliates.