STANDARD TERMS OF SERVICES
These terms (“Terms”) set forth certain terms under which MachineMetrics, Inc. (“MM”) provides services (“Services”) and certain software (“Software”) to customers (“Customer”).
1. Provision of Services and Software. To the extent the use of the Service requires provision by MM of Software resident at a Customer location, MM hereby grants Customer a non- transferable and non- exclusive right and license to use the object code of such Software on the device to which it is provided in connection with such Customer’s use of the Service in order to use the Services in accordance with these terms, and conditional on compliance with the provisions under “Restrictions on Use of Software and Services”.
2. Restrictions on Use of Software and Services. Customer may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, distribute, rent, lease, loan, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software, unless otherwise provided for under these Terms. Customer agrees not to access (or attempt to access or authorize any other party to access) the servers providing the Services by any means other than through the interface(s) that are provided by MM, unless Customer has been speci cally allowed to do so in a separate written agreement executed by MM. Without limiting the generality of the foregoing, Customer speci cally agrees not to access (or attempt to access) the servers through any unauthorized automated means (including use of scripts or crawlers). Software provided through mobile device app stores or other distribution mechanisms (such as the iPhone App Store) may require compliance with additional provisions as required by the applicable distribution method.
3. Collected Information. The Service collects information concerning the operation of machinery from Customer’s premises and from the operation of the software used to provide the Service (“Collected Information”). Customer agrees that to the full extent permitted by applicable law: (a) For the purpose of improving the overall user experience of the software and machine tools being utilized, Customer authorizes MM to use Collected Information to provide the Service, and (b) Customer authorize MM to have the right at all times during and after the time Services are provided to use, sell, license, reproduce, distribute and disclose Collected Information to third parties in an a form that the Customer cannot be identi ed from such disclosure. As part of MM’s operations, it may sell, transfer or merge particular businesses and/or other assets to a third party. As part of such a transaction, the Collected Information may be made available to a third party under restrictions consistent with those in these Terms.
4. Ownership. All right, title and interest (including copyright) in and to the Service, including any inventions, creations and improvements whether or not patentable or copyrighted, conceived or made in connection with the performance of MM’s obligations hereunder, shall remain in MM. MM does not claim any ownership in any materials submitted by or on behalf of Customer (to the Service (including any Collected Information); provided, however, Customer grants MM the right to reproduce, copy, use and distribute any materials submitted by Customer to, stored on or distributed via, the Service to the extent needed to operate the Service, and warrants that it has agreements with its end users or other appropriate right such that MM is permitted to reproduce, copy, use and distribute any Collected Information stored on or distributed via the Service to the extent needed to operate the Service.
5. Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN A SEPARATE WRITTEN AGREEMENT, THE SERVICES AND THE SOFTWARE IS PROVIDED “AS IS”, “WHERE IS”, AND MM DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MM, ITS AGENTS OR EMPLOYEES SHALL CREATE ANY WARRANTY.
6. LIMITATIONS OF LIABILITY. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL MM OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THESE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICE EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL MM’S AGGREGATE LIABILITY ARISING OUT OF THE SUBJECT MATTER OF THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY RECEIVED BY MM FROM CUSTOMER.
7. Termination. MM will have the right to terminate Customer’s rights to receive Services and use the Software immediately by delivery of written notice if Customer is in material breach of any of the foregoing. In such situation, all rights granted to the Customer hereunder shall immediately cease and Customer shall, as MM directs, either return or destroy all Software. For avoidance of doubt, upon termination, MM’s obligation to provide the Service terminates. After the termination of these Terms, Customer shall have no right to access or otherwise download any data existing on MM’s servers, for any reason. Upon termination, all provisions of these Terms survive except the under the heading “Provision of Software and Software”. Termination does not relieve a party for breach occurring prior to termination.
8. General. These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. The parties agree to exclusive personal jurisdiction and venue of the United States District Court for the District of Massachusetts (and any Massachusetts State court within that District) for that purpose.