I. Acceptance of Terms
IMPORTANT -- READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILIZING THE MACHINESHOP SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS
Welcome to the MachineShop service and web sites (the "Service"). Your use of the Service is subject to these terms and conditions (collectively, the “Terms of Service” or “Agreement”). These Terms of Service are a legal agreement between You and MachineShop, Inc. ("MachineShop"), a Delaware corporation, for use of the MachineShop service. "You" refers to any individual who creates an account on the Service, or, “You” refers to an entity in which an individual is authorized to agree to such terms on behalf of the entity. If You are accessing the Service on behalf of Your employer, You represent and warrant that You have the authority to agree to these Terms of Service on its behalf. If You do not agree with the terms of this Agreement, do not use the Service. The Agreement will also be applicable to the use of the Service on a trial basis. The website and any downloadable software associated with the Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
You may not use this service if You are a competitor of MachineShop or for the purposes of obtaining information to be shared with a competitor of MachineShop.
II. Description of Service
The Service includes, and is limited to, any and all APIs, documentation, tools, and other services provided by MachineShop in accordance with a MachineShop order form (“Customer Order Form”) authorized and executed by You and MachineShop or its authorized resellers and agents. Access to the service is strictly limited to the rights and privileges specified in the Customer Order Form. The Terms of Service are incorporated by reference with each Customer Order Form. If there is any conflict between this Agreement and the Customer Order Form, the Customer Order Form shall govern to the degree that there is conflict.
The Service contains APIs, information, data, text, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Service. Subject to these Terms of Service, MachineShop grants to You and each user of the Service a worldwide, non-exclusive, non-sub-licensable and non-transferable license to use solely for purposes of using the Service. Use, reproduction, modification, distribution or storage of any content for other than purposes of using the Service is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right. You shall not reproduce, duplicate, copy, sell, resell the Service. You also shall not decompile, reverse engineer, attempt to reduce to human readable form, or attempt to misappropriate any part of the Service or the software associated therewith.
Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new APIs, tools and other resources, shall be subject to the Agreement. You also understand and agree that the service may include certain communications from MachineShop, such as service announcements, administrative messages, etc., and that these communications are considered part of the Service and You will not be able to opt out of receiving them. You agree not to access the Service by any means other than through the interfaces that are provided by MachineShop, its authorized resellers and agents for use in accessing the Service. MachineShop will provide the Service in accordance with this Agreement. MachineShop may at its sole discretion modify the features of the Service from time to time without prior notice.
Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems.
III. Registration, Billing and Payment
In order to use the Service, You must have a valid Account which can and will be created after execution of a Customer Order Form. Further, an account is deemed active once MachineShop has provided You an email with login credentials and password to access the Service. To acquire an Account for the Service, You must provide MachineShop with an email address and other required information ("Registration Data"). You are responsible for maintaining the confidentiality of the access data for Your Account, and are fully responsible for all activities that occur under Your Account. You agree to immediately notify MachineShop of any unauthorized use of Your Account or any other breach of security. MachineShop cannot and will not be liable for any loss or damage arising from Your failure to comply with this Agreement. In consideration of use of the Service, You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the Service's registration fields, and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. MachineShop assumes no duty to verify such information as further detailed in the Content section of these Terms of Service. If You provide any information that is untrue, inaccurate, not current or incomplete, or MachineShop has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MachineShop has the right to suspend or terminate Your Account and refuse any and all current or future use of the Service (or any portion thereof). By using the Service (and registering an Account on the Service), You represent and warrant that You are at least eighteen (18) years of age. No one under the age of 18 may use the Service. MachineShop may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.
You will pay all fees specified in this Agreement or in a “Customer Order Form. Fees will be pro-rated based on the date that Your account becomes active. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant subscription term.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth herein. Such charges shall be made in advance, either annually or in accordance with any billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Invoiced charges are due net thirty (30) calendar days from the invoice date. Unless otherwise specified, all payments will be made in US Dollars.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified herein and/or MachineShop may suspend service if any invoiced amount is overdue for a period of thirty (30) days. We will give You at least 7 days’ prior notice that Your account is overdue before suspending services to You. We will not exercise Our rights with respect to overdue charges or suspension of service if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
IV. Termination, Breach, and Cancellation
Notwithstanding any other rights in this agreement, MachineShop may terminate the Service (i) for non-payment and failure to resolve past-due accounts, (ii) breach by You and failure to cure within 30 days’ notice from MachineShop, or (iii) upon ten (10) days notice from MachineShop if We are threatened with a credible claim for infringement of intellectual property relating to Our Service that we cannot resolve through commercially reasonable efforts to secure a license or modify relevant aspects of our Services.
Your account will be active, and this Agreement in effect, during the term specified by the Customer Order Form. You may terminate your account upon sixty (60) days written notice to MachineShop, subject to acceleration of all remaining fees in accordance with the Customer Order Form. Once Your account has been terminated, your applications will no longer have access to the MachineShop service, you will no longer have access to account data, tools or other artifacts.
V. Intellectual Property Rights
Unless otherwise specified, MachineShop and/or its suppliers, as applicable, retain ownership of all intellectual property rights in the Service and in all trade names, trademarks and service marks associated or displayed with the Service. You will not remove, deface or obscure any of MachineShop's or its suppliers' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the Service.
MachineShop is a Trademark of MachineShop Software, Inc.
VI. Proper Usage
You understand that the technical processing and transmission of the Service, including Your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in MachineShop's sole discretion as to what action should be taken. You agree that You will not:
(a) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a MachineShop official, forum leader, guide or host, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
(e) upload, post or otherwise transmit any User Content that You do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam", including but not limited to (a) sending mass email to recipients who haven't requested email from You or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting Your site by posting multiple submissions in public forums that are identical;
(h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(k) "stalk" or otherwise harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices.
(m) use the Account website as a redirecting/forwarding service to another website;
(n) exceed the scope of the Service that You have signed up for; for example, accessing and using the tools that You do not have a right to use, or having humans share User logins, or deleting, adding to, or otherwise changing other people's comments or User Content as an Account holder. If any user is reported to be in violation with the letter or spirit of these terms, MachineShop retains the right to terminate such account at any time without further warning.
VII. General Usage Practices
You agree that MachineShop has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content and other communications maintained by the Service. You acknowledge that MachineShop may establish general practices and limits concerning use of the Service and may modify such practices and limits from time to time. MachineShop retains the right to create limits on use and storage at our sole discretion.
You agree that You will not:
(a) upload, post, email, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on the Service (except for Your User Content), or create derivative works from our website (other than from Your User Content), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of MachineShop or any other third party, except with the prior written consent of MachineShop or the appropriate third party.
VIII. Content and Use of Data
(a) Content. MachineShop takes no responsibility for any third-party Content or User Content (including, without limitation, any viruses or other disabling features), nor does MachineShop have any obligation to monitor such third-party Content. MachineShop reserves the right at all times to remove or refuse to distribute any Content on the Service, such as Content which violates these Terms of Service. MachineShop also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce these Terms of Service, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of MachineShop, its users and the public. MachineShop will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
(b) Use of Data. As part of its Service, MachineShop may extract, interact with, process, transfer or use Your data. MachineShop does so only to the extent necessary to provide the Service under the terms of this Agreement and the Customer Order Form. MachineShop may expose or transfer this data to third parties as part of this Service and only as prescribed by You by using this Service. No personally identifiable information is intended to be processed through the Service
IX. Your Representations and Warranties
You represent and warrant that (a) all of the information provided by You to MachineShop to participate in the Service is correct and current; and (b) You have all necessary right, power and authority to enter into these Terms of Service and to perform the acts required of You hereunder.
X. MachineShop Warranties
MachineShop warrants that the MachineShop Service will operate in substantial conformity with documentation referenced in the Customer Order Form.
XI. Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED "AS IS" AND MACHINESHOP, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR BAILMENT OF YOUR DATA ON MACHINESHOP'S SERVERS. MachineShop, its affiliates, suppliers and Resellers make no warranty or representation regarding the results that may be obtained from the use of the Service, the security of the Service, or that the Service will meet any user's requirements. Use of the Service is at Your sole risk.
You agree to indemnify, defend and hold harmless MachineShop, its affiliates, officers, directors, employees, consultants, agents, suppliers and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees as and when incurred) arising from Your use of the Service, Your use of Your Account, Your violation of these Terms of Service or the infringement or violation by You or any other User of Your Account, of any intellectual property relating to the Service (including without limitation Your User Content) or other right of any person or entity.
XIII. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between You and MachineShop Software is intended or created by these Terms of Service.
XIV. Limitation of Liability
In no event will MachineShop or its affiliates, suppliers or Resellers be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, loss of goodwill, or any other pecuniary loss or damage) arising out of the use of or inability to use the Service, or the provision of or failure to provide technical or other support service, whether arising in tort (including negligence) contract or any other legal theory, even if MachineShop, its affiliates, suppliers or Resellers have been advised of the possibility of such damages. In any case, MachineShop's, its affiliates', suppliers' and Resellers' maximum cumulative liability and Your exclusive remedy for any claims arising out of or related to this Agreement will be limited to the amount actually paid by You for the Service (if any) in the previous twelve (12) months.
XV. Waiver and Severability
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
XVI. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising of or related to use of MachineShop services or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
XVII. Choice of Law and Venue
This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, USA,. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving the city of Boston, Massachusetts, USA.
XVIII. GENERAL PROVISIONS
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. MachineShop may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of MachineShop upon Your breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on MachineShop, and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to You may be made via either email or regular mail. The Service may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to You generally on the Service. All notices or other correspondence to MachineShop under this Agreement must be sent to the following electronic mail address for such purpose:
Sections III, V, VIII, XI, XII, XIV, XVI, and XVII shall survive termination or expiration of this Agreement.