Software Subscription Agreement

Effective as of August 20, 2020

Our Software Subscription Agreement (“SSA”) is a contract between you (the Customer) and us (MachEye) describing the services we will provide to you, how we will work together, and other aspects of our business relationship. It consists of the following documents:

Master Terms: These contain the core legal and commercial terms that apply to your subscription

Product Specific Terms: These include any additional terms that apply to your use of each of our product offerings, our consulting and other services and third party services.

Acceptable Use Policy: This is the definitive rulebook setting out what you can and can’t do while using our products and services.

Product Privacy Policy: This policy describes how we collect, receive, use, store, share, transfer, and process your Personal Data in connection with your use of the Subscription Service. It also describes your choices regarding use, as well as your rights of access to and correction of your Personal Data.

Your Order Form: This is the MachEye-approved form created following your purchase of one of our products or services through our online payment process or via in-app purchase. It contains all of the details about your purchase, including your subscription term, products purchased and your fees. You’ll find your Order Form(s) in the Documents section of your MachEye portal.

By accessing or using all or part of the MachEye subscription service, you are accepting all the terms & conditions articulated in this Agreement. If you do not agree to ALL of the terms & conditions of this Agreement, do not use access or use the subscription service. You represent and warrant that you have the right and the authority to sign and bind the entity to use the subscription service as an employee, contractor or an agent of a corporation, partnership, or similar entity.

These are legal documents so some of the language is necessarily “legalese”, but we have tried to make them as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms. We periodically update these terms. If you have an active MachEye subscription, we will let you know when we do via an email or in-app notification.

Master Terms

  1. Definitions
  2. Subscription
  3. License Rights
  4. Embedded Software Rights
  5. Invoicing and Payments
  6. Customer Data and Protection
  7. Confidentiality
  8. Warranties
  9. Limitations of Liability
  10. Publicity
  11. Indemnification
  12. Term & Termination
  13. Miscellaneous

1. DEFINITIONS

  1. “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to MachEye or in the business of developing and offering products or technologies that are substantially similar to the Services.
  2. “Data”, and “Customer Data” means all data uploaded by you (customer), your contractor(s), or your employee(s) in the Subscription Service. Customer Data does not include MachEye Content.
  3. “Subscription Service” means MachEye’s software-as-a service offering ordered / purchased by you
  4. “Support” means technical support offered for the subscription service as per the MachEye support guide
  5. “Activation Data” means the date on which Customer is provided access to the Subscription
  6. “Subscription Term” means the period of authorized access to and use of the Subscription Service
  7. “Order Form” means the document that describes the nature of products and professional services agreed upon and signed by your representative and MachEye
  8. “Professional Services” means Services such as implementation, integration, data management, configuration, customization, and training offered by MachEye as part of implementing the software product subscription services
  9. “Intellectual Property” means all intellectual property or rights worldwide including patents, copyright, trade secret, software, know-how and any other intellectual and intangible property owned or contributed by either party including applications, renewals, and extensions of the foregoing whether registered or unregistered
  10. “Effective Date” or “Activation Date” means the date on which Customer is provided access to the Subscription Service
  11. “Authorized User / Administrator” means the number of employees or consultants of Customer identified on an Order Form who are given password-protected access to the Subscription Service or have an authority on behalf of Customer to administer named users within the Subscription Service and who may contact MachEye support directly as per the support services guidelines
  12. “Consultant” means an individual or entity providing services or other assistance to Customer or MachEye in connection with each party’s respective obligations under this Agreement, as applicable
  13. “Authorized Partner” means a third-party reseller or partner authorized by MachEye to sell access to the Subscription Service and related consulting or professional services
  14. “Scope of Use” means reasonable usage of MachEye software through MachEye built interfaces such as MachEye’s web interface or natural language query interface.
  15. “Deployment Attributes” means the methods in which MachEye is deployed for the Customer. This can include on-premises installation on the Customer’s in-house servers or Cloud environment or MachEye’s managed servers. This is specified on the Order Form.
  16. "Subscription Fee" means the amount you pay for the Subscription Service.
  17. "Subscription Service" means all of our web-based inbound marketing and sales applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via www.macheye.com or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
  18. "Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
  19. "Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-MachEye apps available from, for example, the following: our integrations products page, partner directory, template marketplace, links made available through the Subscription Service and non-MachEye services listed on services.MachEye.com.
  20. "Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications Services.
  21. “Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your MachEye accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
  22. "Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
  23. "MachEye", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
  24. "You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.

2. SUBSCRIPTION

2.1 Usage. Upon execution of an Order Form by both parties, MachEye will provide Customer with access to an Instance to access the Subscription Service during the Subscription Term stated in the Order Form solely for use by your Authorized Users for your internal business purposes. Customer understands and agrees that: (1) that each User constitutes one individual and log-on credentials for each User may not be shared; (2) the Subscription Services are limited by the Scope of Use, Deployment Attributes, and other agreed upon restrictions described on the applicable Order Form.

2.2 Use by Affiliates. Customer’s Affiliates may, upon executing a new and separate Order Form and agreeing to be bound by the provisions of this Agreement, use the Subscription Services subject to Customer’s Scope of Use and Deployment Attributes or purchase Subscription Services for their own defined Scope of Use and related Deployment Attributes. Upon execution of an Order Form by MachEye and the Affiliate(s), the Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto.

2.3 Customer Responsibilities. Customer shall: (a) use the Subscription Services in accordance with this Agreement and all Documentation; (b) be responsible for its Authorized Users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized use or access to the Subscription Services, any account or password, or any copying of the Subscription Service, and notify MachEye immediately of any such unauthorized use, access or copying; and (d) be solely responsible for: (i) the accuracy and legality of Customer Data, the means by which it acquires and uses such Customer Data, including compliance with any regulations and laws applicable to the Customer Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Data necessary to permit MachEye’s compliance with its obligations under this Agreement and (ii) any acquisition, implementation, support or maintenance of third-party products or services purchased by Customer that may interoperate with the Services.

2.4 Restrictions. Customer shall not, and shall not allow others to: (a) cause or permit the reverse engineering, disassembly, or recompilation of any portion of the Subscription Service; (b) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Subscription Service; (c) use or modify the Subscription Service in any way that would subject the Subscription Service, in whole or in part, to a Copyleft License (as defined below); (d) use the Subscription Service or Services, or permit it to be used, for purposes of evaluation benchmarking, performance tests or other comparative analysis intended for publication or disclosure to third parties; (e) except as permitted by this Agreement, directly or indirectly: distribute, sell, sublicense, rent, lease, market, use or commercialize the Subscription Service (or any portion thereof); (f) provide the Subscription Service on a time sharing, hosting, service provider or other similar basis; (g) copy any features, functions or graphics of the Subscription Service for any purpose other than what is expressly authorized under this Agreement; (h) send, store, access or authorize a third party to send, store or access spam, unlawful, infringing, obscene or libelous material, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (i) interfere with or disrupt the integrity or performance of the Subscription Service; or (j) perform operations that adversely impact MachEye’s delivery of the services; (k) use the Subscription Service to develop a product that is competitive with the Subscription Service or any other MachEye product licensed to Customer pursuant to an Order Form (provided, however, that Customer is free to engage in independent development without using the Subscription Service); (l) Modify Subscription Service (modification by you or any other person authorized by you other than MachEye or a person acting at MachEye’s direction) or use Your Data in such a manner that it infringes any patent, copyright or trademark, misappropriates any third-party trade secret or violates any third party privacy rights. “Copyleft License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software.

2.5 Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Subscriptions, these limits may also be designated only from within the product itself. For further information on the limits that apply to your subscription, please refer to the Product Specific Terms.

You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.

2.6 Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.

The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained herein shall limit the usage restrictions specific to Sensitive Information under the Agreement.

2.7 No Sensitive Information. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.

2.8 Free Trial. If you register for a free trial, we will make the applicable Subscription Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.

2.9 Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For further information on our modification rights that apply to your subscription, please refer to www.macheye.com

3. LICENSE RIGHTS

3.1 What MachEye Owns. The Subscription Service constitutes proprietary Intellectual Property of MachEye and its Affiliates and is protected by patents, trademark, copyright and other intellectual property laws. Except for the access and usage rights granted herein, MachEye retains all right, title and interest, including all intellectual property rights, in the Subscription Service (and any derivative works of or improvements to any of the foregoing created by or for MachEye) and Documentation. The term “purchase” in reference to the Subscription Service notwithstanding, it is expressly agreed by the parties that title to the Subscription Service does not pass to Customer and Customer’s rights with respect to the Subscription Service will only be access and use the product. The Subscription Service to which you are granted access to is not sold. Except as expressly provided herein, this Agreement does not grant Customer any rights under any of MachEye’s Intellectual Property rights. Customer agrees that any and all use of MachEye’s trademarks by Customer will inure to the benefit of MachEye and Customer shall have no trademark rights in MachEye’s trademarks.

3.2 What Customer Owns. All materials (tangible and intangible and including without limitation, any Customer trademarks) (and all the Intellectual Property rights therein) that are provided or made available to MachEye by Customer hereunder, including without limitation the Customer Data (collectively, “Customer Property”) shall remain the sole and exclusive property of Customer (or its licensors, as applicable). Customer hereby grants to MachEye a nonexclusive, non-transferable, revocable limited license (to the extent of Customer’s rights) to make such uses of Customer Property as are necessary for MachEye ’s performance of the Services hereunder solely for the benefit of Customer, and solely during the term of this Agreement. MachEye agrees to comply with any terms and conditions that are communicated by Customer to MachEye relating to any such Customer Property. MachEye will return all Customer Property to Customer upon the completion of the Services or upon Customer’s request (whichever is earlier). All rights not expressly granted by Customer hereunder are reserved by Customer. MachEye agrees that all Customer Property that is not publicly known is Customer Confidential Information. MachEye shall not, without Customer’s prior written consent, use any trademarks, service marks, trade names, logo or other commercial or product designations of the Customer, for any purpose.  MachEye may not use, and shall keep its employees, agents, representatives and subcontractors from using Customer as a reference in marketing any related product or services to any third party to entity without Customer’s prior written consent.

3.3 Feedback. Customer or Customer Users may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information to MachEye with respect to any of MachEye’s Services, Documentation, Professional Services, or operations (collectively, referred to hereafter as “Feedback”). Customer agrees that such Feedback is given voluntarily, and that MachEye may use, disclose, reproduce, modify, commercialize, license, distribute and exploit the Feedback (excluding any Customer Property) freely, in its sole discretion, without any restriction or obligation of any kind.

4. EMBEDDED SOFTWARE RIGHTS

For Customer’s electing “Embedded Software” on an Embedded Product Order Form, the Customer, at its own election and approved in writing by MachEye, can white label MachEye software to their end-users provided that any use of MachEye’s software contains “powered by MachEye” in the end-user interface.

4.1 Right to Bundle. Subject to the terms and conditions of this Agreement, MachEye hereby grants Customer a non-exclusive, non-transferable right, to use and/or distribute the Products specified on the applicable Order Form to End Customers, only as part of the Bundled Product and for use within the Business Scope, in the Territory and for the term and as otherwise specified in theOrder Form. The Order Form shall detail, among other things: (i) the scope of use of the Product included in the subscription (ii) the term of such subscription; (iii) the fees charged; (iv) the Bundled Product Configuration options (iv) the Customer Product; (v) the Business Scope; (vi) whether End Customer access is On Premise Access and/or SaaS Access.

4.2 Bundling Limitation. It is explicitly agreed that Customer may bundle or integrate the Product with the Customer Product only and in no way may the Product be bundled with or integrated in any other product whatsoever. Further, Customer shall not use the Product or authorize an End Customer to use the Product with any data sources other than the data sources identified in theOrder Form.

4.3 Marketing Covenant. Customer agrees to contain the phrase “Powered by Macheye” on any end-user interface that contains MachEye software unless otherwise agreed to in writing.

4.4 End Customer Agreement for On-Premise Access.Customer shall ensure that each and every end Customer of the Bundled Product provided On-Premise Access has executed or is party to an End Customer Agreement prior to End Customer's use of the Bundled Product. The End Customer Agreement will include license terms which are materially the same as the End Customer Agreement minimum terms that are referenced in point vii) below.

4.5 End Customer Support Services.Customer shall be solely responsible to provide End Customers with support and maintenance. MachEye has no obligation to provide any Support Services to End Customers directly.

4.6 End Customer Relationship. Customer shall not make any representations or warranties, express or implied, suggesting that MachEye will provide support or maintenance to End Customers or that MachEye makes any representations or warranties to End Customers. Customer shall not make warranties or representations to End Customers regarding the performance of the Product, support or other services on behalf of MachEye or otherwise make commitments on behalf of MachEye that are inconsistent with the representations and warranties made by MachEye or that are not approved by MachEye and any such warranty or representation shall not be binding on MachEye.

4.7 End Customer Agreement Minimum Terms. Customer may distribute the Product as part of the Bundled Product to its End Customers for On-Premise Access pursuant to Customer's own End Customer Agreement, provided that the End Customer Agreement is consistent with, and includes terms that are substantially consistent with, the following:

  1. Only a non-exclusive, non-sublicensable, non-transferable, limited license is granted to the End Customer to use the Product, in machine-readable, object code form only, for End Customer's internal use only and not exceeding the scope of use of the Bundled Product permitted under, or otherwise inconsistent with the terms of, the Agreement.
  2. No ownership of, or title to the Intellectual Property in, the Product is transferred to the End Customer. MachEye or its licensors own and shall retain all rights, including Intellectual Property rights, in and to the Product;
  3. The End Customer must not reverse compile, reverse engineer, or disassemble any portion of the Product (except as is required to be permitted by applicable law);
  4. The End Customer must not derive, or attempt to derive, the source code of the Product;
  5. The End Customer must not modify or create adaptations or derivative works of the Product;
  6. The End Customer must not remove, alter or obscure any proprietary notice or identification, including copyright or trademark notices, contained in or on the Product;
  7. Suitable warranty disclaimers, including conspicuous disclaimers of warranties of merchantability, satisfactory quality and fitness for particular purpose, and a statement that MachEye and its licensors do not grant any warranty and shall not have any direct or indirect liability to the End Customer; and
  8. The End Customer is required, at the termination of its license to use the Bundled Product, to discontinue use and irrevocably erase the Product, Documentation and all archival or other copies of the Product.

5. INVOICING & PAYMENTS

5.1 Fees, Taxes and Payments. MachEye will provide the Subscription Service or Consulting / Implementation Services (“Professional Services”) identified in each Order Form executed by the parties, as per the terms of this Agreement. Upon execution by the parties, each Order Form is non-cancellable and non-refundable (except as otherwise provided in this SSA). Customer will pay MachEye in U.S. Dollars the fees specified in an applicable Order Form, in the amounts and at the times specified therein. Except as otherwise specified herein or in an Order Form, all undisputed fees are due 30 days from the date of MachEye’s invoice. Except in the event of MachEye’s breach, payment obligations are non-cancellable and all fees paid are non-refundable. Payment for a Renewal Term is due 30 days prior to the commencement of the Renewal Term, unless otherwise agreed to by the parties. Undisputed late payments will accrue interest at a rate of 1% per month. You will cure delinquency in payment of any undisputed amounts owed under this Agreement within 30 days from the date of delinquency notice from MachEye.

MachEye may suspend the Subscription Service or professional services during the period of delinquency without liability until the delinquency is paid in full. You will makepayments by check or wire transfer to the address or bank account provided MachEye. Customer is responsible for any sales, use, value added, excise, by property, withholding or similar tax (at federal, state, local and foreign level) and any related tariffs, duties, levies, value added taxes and similar charges, except taxes based on MachEye’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to MachEye hereunder. If an applicable tax authority requires MachEye to pay any taxes that should have been payable by Customer, MachEye will advise Customer in writing, and Customer will promptly reimburse MachEye for the amounts paid. Subscription commitment is continuous regardless of the invoice schedule and pricing is based on a purchase of the entire Subscription term. Professional Services performed on a fixed fee basis are invoiced at the time of the availability of the software and fees for professional services performed on a time and materials basis are invoiced monthly.

5.2 Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your MachEye account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a MachEye Solutions Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.

5.3 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.

5.4 Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

6. CUSTOMER DATA & PROTECTION

6.1 Data Responsibility.MachEye is not responsible for the Data accuracy and content. Customer is responsible for Data rights and privileges and you warrant to MachEye that you have sufficient rights and privileges to authorize MachEye to process, distribute and display your Data as needed to provide the Subscription Service and as required as per the terms of this Agreement. You also warrant that your use of the Subscription Service and your Data is at all times compliant with your privacy policies and also compliant to all applicable local, state, federal and international laws including without limitation those related to data privacy, international communications and the exportation of technical or personal data.

6.2 Health Information Data.You shall not upload to the Subscription Service any patient, medical or other protected health information regulated by Health Insurance Portability and Accountability Act (HIPAA) or any such federal or state laws, rules or regulations and acknowledge that MachEye is not a business associate as defined under HIPAA. MachEye will have no liability under this Agreement for Health Information.

6.3 Financial Payments / Credit Card Data. You will not upload to the Subscription Service any credit card / debit card or bank account data

6.4 Data Backup. The Subscription Service is not an alternative to your regular data stores. The Subscription Service does not eliminate your need to maintain regular data backups as required by your business continuity protocols. MachEye has no liability or obligation for any loss, destruction, damage or corruption of your Data

6.5 Data Protection. To the extent the parties execute a Data Protection Agreement (“DPA”) due to the processing of Personal Data (as defined in the DPA) which may be contained in Customer Data or Customer Confidential Information that is processed by MachEye in its provision of the Services, the terms of such DPA shall be incorporated into this Agreement by reference.

7. CONFIDENTIALITY

7.1 Confidential Information. The Parties acknowledge that after execution of this Agreement, they may be furnished with, receive, or otherwise have access to Confidential Information. The terms and conditions of this Agreement are considered Confidential Information.

7.2 Exclusion. Confidential Information excludes any information that the receiving Party can demonstrate: (a) at the time of disclosure, was in the public domain or in the possession of the receiving Party; (b) after disclosure, is published or otherwise becomes part of the public domain through no fault of the receiving Party; (c) was received after disclosure from a Third party who had a lawful right to disclose such information to the receiving Party without any obligation to restrict its further use or disclosure; or (d) was independently developed by the receiving Party without reference to Confidential Information of the disclosing Party.

7.3 Ongoing Obligation. Each Party's Confidential Information shall remain the property of that Party except as otherwise expressly provided in this Agreement. Each Party shall use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent unauthorized disclosure of Confidential Information as it employs to avoid unauthorized disclosure of its own Confidential Information of a similar nature.

7.4 Permitted Disclosures. The recipient of Confidential Information may disclose such Confidential Information, including the terms and conditions of this Agreement or any Order Form, to its directors, officers, employees, consultants, auditors, accountant, lawyers, subcontractors, agents, and any potential investor or acquirer of a substantial part of such recipient’s business, whose duties justify access to such Confidential Information, and who are bound by non-disclosure obligations consistent with and at least as protective as those set forth in this Agreement.

7.5 Remedial Measures. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing Party, the receiving Party shall promptly, and at its own expense, notify the disclosing Party in writing, and take such actions as may be necessary and cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.

7.6 Required Disclosures. A Party receiving a request to disclose Confidential Information to satisfy a legal requirement of a competent government body shall immediately upon receiving such request, and to the extent that it may legally do so, advise the disclosing Party promptly and prior to making such disclosure in order that the disclosing Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. The receiving party shall reasonably cooperate with the disclosing party in such regard.

7.7 No Implied Rights. Nothing contained in this Article shall be construed as obligating a Party to disclose its Confidential Information to the other, or as granting to or conferring on a Party any express or implied right or license to the Confidential Information of the other Party.

7.8 Obligations. The obligations contained in this Article shall survive the expiration or termination of this Agreement for a period of three (3) years or such longer period as required by regulation, law or court order (e.g., trade secret law, administrative rule, protective order, etc.).

7.9 Privacy Policy. Customer understands that in connection with providing the Service, MachEye collects limited personal information of the Users and gathers analytics regarding User’s use of the Services. Such collection and use are described in MachEye’s Privacy Policy (the “Privacy Policy”).

7.10 Processing of Customer Data. Customer grants MachEye the non-exclusive right to access and process the Customer Data for the sole purpose and only to the extent necessary to provide the Services. MachEye agrees not to use, access, disclose or process any Customer Data, except to: (i) perform the obligations permitted by Customer under this Agreement; and (ii) comply with applicable laws.

8. WARRANTIES

8.1 SUBSCRIPTION SERVICE. MachEye represents and warrants that (i) the Subscription Service will operate in conformance with all applicable Documentation; (ii) all Services shall be of professional quality, consistent with generally accepted industry standards and expectations for services of a similar nature, (iii) the Subscription Services do not contain any “computer viruses” or other malicious computer code, (iv) MachEye shall operate its facilities and the Subscription Service consistent with industry best practices regarding physical and electronic security to prevent unauthorized access (for example, hacking) and unauthorized access to or retrieval of any Customer Data, (v) MachEye has and shall maintain a disaster recovery and business continuation plan that shall enable MachEye to provide the Subscription Services in accordance with this Agreement, and (vi) the Subscription Service and the use by Customer thereof does not and will not misappropriate, infringe or violate any patent, copyright, trademark, service mark, trade secret, non-disclosure obligation, or other intellectual property or proprietary right of any other party.

8.2 NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION AND AS PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8.3 DISCLAIMER. MachEye DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-MachEye PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. MachEye SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).

9. LIMITATIONS OF LIABILITY

9.1 Limits on Liability. EXCEPT IN CONNECTION WITH MACHEYE’S INDEMNIFICATION OBLIGATIONS OR LIABILITY FOR BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3 (COLLECTIVELY, THE “EXCLUSIONS”) AND TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO MachEye DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM.

9.2 NO INDIRECT DAMAGES. SUBJECT TO THE EXCLUSIONS AND TO THE EXTENT PERMITTED BY LAW, NEITHER MACHEYE NOR YOU (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, LOST REVENUE, WORK STOPPAGE, LOST OF GOODWILL, OR INDIRECT / SPECIAL / COVER / PUNITIVE / INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Disclaimer of Warranties. WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, MACHEYE CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, MACHEYE CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

9.4 Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

9.5 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

10. PUBLICITY

You grant us the right to add your name and company logo to our customer list and website. To object to this use, please indicate so by filling out the form here.

11. INDEMNIFICATION

11.1 Indemnification by MachEye: MachEye will defend, indemnify and hold Customer harmless from and against any damages, costs and expenses (including, reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to any third party causes of action, suits or claims, (collectively “Claims”) arising out of or relating to any actual or alleged infringement or violation of any patent, trademark, copyright or other intellectual property or proprietary right or any unfair competition relating to the Subscription Service. If Customer’s use of the Subscription Service is enjoined, if required by settlement or if MachEye determines such actions are reasonably necessary to avoid material liability, MachEye may, in its sole discretion: 1) substitute products of substantially similar functionality; 2) procure for Customer the right to continue using the Subscription Service; or if 1) and 2) are not commercially practicable, 3) terminate this Agreement and refund to Customer the fees paid by Customer for the remaining portion of the Subscription Term. MachEye will have no obligation in this section for any claim or demand to the extent attributable to Customer’s use of the Subscription Service combined or integrated with other products, processes or material (including Customer Data) where the infringement would not have arisen but for such combination or integration.

11.2 Indemnification by Customer: Customer at its own expense shall defend or settle any third party claims, actions and demands brought by anyone other than a MachEye Related Party, against MachEye and its Related Parties (officers, directors and employees), to the extent based upon an express assertion by the third party bringing the claim of: (a) misappropriation, misuse or breach of applicable law related to Customer Data; (b) Customer’s breach of Section 2 of this Agreement; or (c) claims that Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement

11.3 Indemnification Procedure: The obligations of MachEye and you under this section are conditioned on the indemnified party: notifying the indemnifying party promptly of any actual or threatened claim; giving the indemnifying party sole control of the defense of such claim and any related settlement negotiations; and cooperating and at indemnifying party’s reasonable request and expense, assist in such defense. The indemnifying party will not stipulate, acknowledge, or admit fault or liability on the indemnified party’s behalf or publicize any settlement without the indemnified party’s prior written consent.

12. TERM & TERMINATION

12.1 Term of Agreement. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues until all Subscription Terms and Professional Services have expired or been terminated

12.2 Subscription Term.Except as specified otherwise in an Order Form a standard Subscription is for a one (1) year Subscription Term and: (a) Subscriptions will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either party notifies the other in writing at least thirty (30) days prior to expiration of the then-current Subscription Term, and (b) MachEye will invoice Customer for the Subscription fees prior to the Renewal Term at the list prices in effect at the time of renewal, unless the parties agree to different pricing in writing, sixty (60) days prior to commencement of the Renewal Term.

12.3 Termination Rights. Either party may terminate this Agreement (including all related Order Forms and SOWs) if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days).

12.4 Effect of Termination. Immediately upon termination of this Agreement, Customer shall cease all use of the Subscription Services. Within ten business days following the termination date, Customer shall, at MachEye’s option, return to MachEye or destroy (and certify to MachEye in writing as to such destruction) and any other materials embodying or reflecting the Services and MachEye Confidential Information, and MachEye shall return to Customer or destroy (and certify to Customer in writing as to such destruction) and any other materials embodying or reflecting the Customer Data and Customer Confidential Information. On termination or expiration of this Agreement, other than termination by Customer for MachEye’s uncured breach, Customer shall immediately pay MachEye the remaining balance (if any) identified on the Order Form for the remainder of the Subscription Term.

12.5 Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.

12.6 Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

12.7 Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

12.8 Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You will continue to be subject to this Agreement for as long as you have access to a MachEye account. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and MachEye Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

13. Miscellaneous

13.1 Entire Agreement; This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any non-disclosure or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in full force and effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any Customer purchase order or other business form (“Customer’s Form”). If accepted by MachEye in lieu of or in addition to MachEye’s Order Form, Customer’s Form shall be binding only as to the following terms: the Services ordered; and the appropriately calculated fees due. Other terms shall be void and unenforceable, irrespective of the representations, obligations and covenants contained therein.

13.2 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

13.3 Use Verification. MachEye may remotely review your use of Subscription Service and on MachEye’s written request, you will provide reasonable assistance to verify your compliance with this Agreement and access to and use of the Subscription Service.

13.4 Amendment. No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at our web site.

The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. If you would like to receive an email notification when we update the Customer Terms of Service, complete the form found at our website.

If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

13.5 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any MachEye affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

13.6 Notices. To MachEye: Notice will be sent to the contact address: 37010 Dusterberry Way, #7748, Fremont, CA 94537, United States.

To you: your address as provided in our MachEye Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

13.7 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

13.8 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, agency, fiduciary, or employment relationship between Customer and MachEye.

13.9 Actions Permitted.Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

13.10 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. Customer further warrants and represents that it has the authority to procure its Affiliates compliance with the terms of this Agreement.

13.11 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.

You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services.

You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.

13.12 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in the Northern District of California and Santa Clara County, California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.