These Terms and Conditions (“Agreement”) govern the use of the services provided by Machine Research Corporation, an Oregon corporation, having offices at 11501 SW Amu Street, Tualatin, OR 97062, (“MRC”) to the subscriber identified on the applicable Order Form that references this Agreement (“Customer”).

 

This Agreement sets forth the terms under which MRC will provide Customer with access to and use of the MRC platform and software identified in the applicable Order Form (collectively the “Services”). The term “Order Form” shall mean any ordering document used to order the Services that references this Agreement and is either manually or by electronic or digital signature signed by Customer and either MRC or one of its authorized resellers.

 

This Agreement takes effect upon the earlier of (a) the date Customer executes an Order Form;(b) when Customer clicks an “Accept” button or check box presented with these terms or, (c) if earlier than (a) or (b), when Customer uses any of the Services (the “Effective Date”). Customer’s agent represents to MRC that they are at least 18 years of age and have the legal capacity, authority, and lawful right to enter into this Agreement on behalf of Customer in its jurisdiction. If Customer’s agent is entering into this Agreement for an entity, such as the company Customer works for, Customer represents to us that he/she has legal authority to bind that entity.

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Article I. LICENSE TO USE SERVICES

1.1. Access Rights.   MRC hereby grants Customer, during the Term, a limited, non-transferable, and non-exclusive license to use the Services in accordance with the use parameters described in the Order Form, solely for Customer’s internal business purposes and subject to the terms and conditions of this Agreement. Where expressly provided on the Order Form, the license to use the Services stated in the preceding sentence is granted to Customer’s employees and/or third party consultants (“Authorized Users”)

 

1.2. Customer Support.   MRC will issue to Customer one administrative login identifier and password (“Administrator’s Login”) for purposes of the Customer administrator accessing and using the Services. Using the Administrator’s Login, the administrator shall assign each of the Customer’s remaining Authorized Users a unique login identifier and password and assign and manage the business rules that control each such Authorized User’s access to the Services. Customer shall ensure that each Authorized User will: (a) periodically change their login password; (b) not disclose their login identifier to any person or entity; (c) not permit any other person or entity to use their login identifier and (d) use the Services solely in accordance with the terms and conditions of this Agreement.

 

1.3. Restrictions.  Customer and its Authorized Users shall be prohibited from and will not: (a) sell, lease, license or sublicense the Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the Services or any software included in the Services; (c) provide, disclose, divulge or make available to, or permit use of the Services by any third party (except as expressly provided herein); (d) copy or reproduce all or any part of the Services (except as expressly provided herein); (e) knowingly interfere, or attempt to interfere, with the Services in any way; (f) use the Services to engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the Services; (g) knowingly introduce into or transmit through the Services any virus, worm, trap door, back door; or (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Services.

 

1.4 Customer Representations; Indemnification Regarding User Identifiers and Passwords. Customer is solely responsible for maintaining the confidentiality of its Administrator’s Login and each of its Authorized User login identifiers and passwords and for any charges, damages, liabilities, or losses incurred or suffered as a result of its failure to do so. MRC is not liable for any harm caused by or related to the theft or Customer’s Authorized User identifiers and passwords, Customer’s disclosure of the same, or Customer’s authorization to allow another person to access or use the Services using any of its Authorized User identifiers or passwords. Customer agrees to immediately notify MRC of any unauthorized use of its account or any other breach of security of the Services known to Customer.

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Article II. CHANGES

2.1. To This Agreement.  MRC reserves the right to amend or modify this Agreement at any time, which may include limits on the number of Customer’s Users, limitations upon the amount of Customer Content/Data uploaded, and fees for the Services, but if MRC does, it will bring it to Customer’s attention by placing a notice on the Service, by sending Customer an email, or by some other means of communication. If Customer does not agree with the amended or modified Agreement, Customer is free to reject it; but Customer will no longer be able to use the Services. If Customer uses the Services in any way after a change to this Agreement is made by MRC in accordance with this Section, such use means that Customer has agreed to all of the changes. Except for changes to this Agreement made by MRC in accordance with this Section, no other amendment or modification to this Agreement will be effective unless in a writing that is signed by both Customer and MRC.

 

2.2. To the Services.  MRC may change, discontinue, or deprecate any of the Services or change or remove features or functionality of the Services from time to time. MRC will notify Customer of any material change to or discontinuation of the Services.

 

2.3. To the APIs.   MRC may change, discontinue, or deprecate any application programming interfaces (“APIs”) to the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if doing so, in MRC’s sole discretion, (a) would pose a security or intellectual property issue or compromise Confidential Information, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).

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Article III. FEES; SERVICE COMMITMENT AND EARLY TERMINATION FEE

3.1 Application and Use Fee.  Unless otherwise agreed by MRC, in consideration of the license rights to the Services granted in Section 1.1. Customer shall pay the service fees specified in the Order Form by credit card.

 

3.2. Termination by Customer. Per Section 11.3 below, Customer has the right to terminate this Agreement at any time with prior notice by cancelling through their billing interface.

 

3.3. Customer’s Service Commitment and Refund Policy. Customer’s Service Commitment begins on the day MRC activates its Administrator’s Login access to the MRC Services (the “Activation Date”) and may be for thirty (30) days or such longer period as specified in the Order Form. Customer acknowledges it has received certain benefits from MRC (including but not limited to a discount to MRC’s standard monthly service charge for commitments in excess of thirty (30) days) in exchange for Customer’s Service Commitment. If MRC terminates Customer’s service for nonpayment or other default before the end of the Customer Service Commitment, or if Customer terminates its service for any reason before the end of its Customer Service Commitment other than (a) due to MRC’s breach of this Agreement; or (b) pursuant to a change of terms, conditions, or rates agreed between Customer and MRC, Customer agrees that the following shall apply with respect to any Customer refund from MRC.

 

a. If Customer’s Service Commitment is for a term of only thirty (30) days and Customer cancels or terminates its Agreement with MRC before its Customer Service Commitment expiration date, Customer shall not be entitled to any refund of the monthly fee paid.

 

b. If Customer’s Service Commitment is for a term in excess of thirty (30) days and Customer cancels or terminates its Agreement with MRC before its Customer Service Commitment expiration date MRC will refund to Customer the balance of any fees pre-paid by Customer for the remaining months of the Customer Service Commitment less the fees due and payable to MRC for Customer’s use of the Services prior to termination billed at MRC’s standard non-discounted monthly rate.

 

3.4. Taxes. All fees quoted or specified on the Order Form do not include any applicable sales tax, use tax, and value added taxes (VAT) or other taxes that are levied or imposed by reason of the performance by MRC under this Agreement, excluding income taxes, and Customer will pay or reimburse MRC (or its authorized reseller identified on any applicable Order Form) for any such applicable taxes.

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Article IV. LIMITED WARRANTIESS

4.1. Customer Warranty.  Customer represents, warrants, and covenants to MRC that: (a) it has the authority to enter into this Agreement and perform its obligations hereunder; and (b) it and its Authorized Users will only use the Services for lawful purposes and will not use the Services to violate any law of any country or the intellectual property rights of any third party.

 

4.2. MRC Warranty.   MRC warrants that: (a) MRC has the authority to enter into this Agreement; (b) the Services will substantially operate and conform to the Documentation. “Documentation” shall mean the reference, administrative, and user manuals provided by MRC to Customer in association with the Services. Documentation shall not include marketing materials.

 

4.3. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 4.2 ABOVE, MRC DOES NOT MAKE AND HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES OR ANY DOCUMENTATION PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. MRC MAKES NO WARRANTY THAT: (A) USE OF THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR VIRUS-FREE, (B) THE SERVICES WILL OPERATE PROPERLY AS INTEGRATED WITH ANY CUSTOMER PROGRAMS, (C) THE SERVICES OR THE DOCUMENTATION WILL MEET THE SPECIFIC NEEDS OF CUSTOMER, LICENSEE’S SUBDISTRIBUTORS, OR ITS AUTHORIZED USERS, (D) SPECIFIC RESULTS WILL BE ACHIEVED WITH THE SERVICES OR THE DOCUMENTATION, OR (E) ALL ERRORS OR FAILURES WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES EXCEPT AS PROVIDED IN SECTION 4.2. MRC DOES NOT REPRESENT OR WARRANT THAT ANY CAD FILE TRANSLATION REQUESTED OR PROVIDED TO CUSTOMER WILL ALWAYS BE SUITABLE FOR USE IN MANUFACTURING AND RECOMMENDS THAT CUSTOMERS REVERT TO THEIR ORIGINAL CAD FILE TYPE WHERE MANUFACTURING REQUIRES THIS. FURTHER, OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT, MRC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND ON BEHALF OF ITS LICENSORS.

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Article V. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR PERFORMANCE OR NONPERFORMANCE HEREUNDER, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MRC’S LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE OF ALL FEES PAID OR PAYABLE BY CUSTOMER TO MRC UNDER THIS AGREEMENT.

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Article VI. CONFIDENTIALITY

“Confidential Information” means any information that Customer and its Authorized Users upload in their usage of the Services hereunder (“Customer Content/Data”), the terms of this Agreement, the Services, any software provided by MRC under this Agreement, the login identifiers and passwords provided to Customer and its Authorized Users, the fees charged under this Agreement, any other materials marked confidential by Customer or MRC, and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) Confidential Information may constitute valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party’s prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (a) publicly available; (b) already in the other party’s possession and not subject to a confidentiality obligation; (c) independently developed by the other party without use or reference to the disclosing party’s Confidential Information; or (d) required to be disclosed by order of a court or other governmental agency; provided no less than 5 business days notice is given to the party owning such Confidential Information so that such party may have an opportunity to seek to obtain a protective order or other equitable relief.

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Article VII. SECURITY; SERVICES AVAILABILITY AND SUPPORT

7.1. MRC Security. Without limiting MRC’s disclaimers in Section 4 or Customer’s obligations under Section 8, MRC will implement reasonable and appropriate measures designed to secure Customer Content/Data against accidental or unlawful loss, access, or disclosure.

 

7.2. Customer Content/Data Privacy.   MRC treats all Customer Content/Data and any Registration Data (defined below) as Confidential Information in accordance with the terms and conditions of this Agreement and MRC’s Privacy Policy. Customer consents to MRC’s collection, use, processing, aggregation, and analysis of Customer Content/Data and other information associated with the Services for MRC’s internal business purposes and statistical analysis and for improving and enhancing its website, the Services, and other MRC products and services in accordance with this Agreement and MRC’s Privacy Policy.

 

7.3. Application Availability and Support

 

a. Services Availability.  MRC will make commercially reasonable efforts to keep the Services available 24 hours a day/7 days a week except for (i) planned downtime (of which MRC will use commercially reasonable efforts to provide at least 48 hours prior notice, but in no event fewer than 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond MRC’s control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, war, strikes or other labor problems or internet service provider failures or delays.

 

b. General Customer Support. Support will consist of: (i) telephone support; (ii) correction of errors to keep the Services in conformance with user Documentation included in the Services; and (ii) any standard release updated versions of the Services provided by MRC to its general customer base of subscribers at no additional charge. Unless otherwise provided in the applicable Order Form, Support will not include: (i) set up, installation, or configuration of hardware and software required for the Customer to access the Service; or (ii) consultation, error correction, or research with respect to Customer-created documents, data, or information.

 

c. Customer Representative.
The Customer Representative designated in the Order Form will be Customer’s contact for communicating with MRC concerning Support, making any other request, or providing any notice. Customer may change its Customer Representative upon written notice to MRC or through the Service’s administration tool.

 

d. Technical Support.  Customer will have access to MRC’s technical support personnel (“Technical Support”) as follows:

•       Hours: Monday-Friday, 9:01am to 5:00pm Pacific Standard Time (excluding US holidays).

•       Phone: Toll Free – (800) 930 – 0289

•       Email: support@machineresearch.com

•       Web Support: www.machineresearch.com/contact-us

•       Communications with Technical Support may be via telephone or email. MRC provides a single point of contact that routes requests and problems to the appropriate Technical Support.

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Article VIII. CUSTOMER RESPONSIBILITIES

8.1. Ownership of Customer Content/Data.

Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Content/Data. Any text, data, images, or other digital information input or posted on the Services by an Authorized User shall belong to the Customer (or its Licensors as applicable). For example, Customer is solely responsible for:

 

a. the technical operation of Customer Content/Data, including ensuring that calls Customer makes to the Services are compatible with the then-current APIs for the Services;

 

b. compliance of Customer Content/Data with the terms of use of this Agreement, any other use policies posted by MRC, and all applicable law;

 

c. any claims relating to Customer Content/Data; and

 

d. proper handling and processing notices sent to Customer (or any of Customer affiliates) by any person claiming that Customer Content/Data violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

 

 

8.2. Services Implementation, Registration.

 

a. Customer agrees to use the Services only through its website and software application that it owns or controls (the “Site”) and MRC reserves approval authority as to the implementation and use of the Services on the Site. MRC may suspend or rate limit the Services in the event MRC finds any implementation issues with the Site. Such suspension or limitation shall remain in effect until Customer corrects any issues specified by MRC, and a suspension or rate limitation shall not relieve Customer of its payment obligations under this Agreement.

 

b. Customer agrees to provide MRC with current, complete, and accurate registration information as prompted by the Services registration processes and to maintain and properly update such information (“Registration Data”). Customer further agrees that, in providing MRC the Registration Data, it will not knowingly omit or misrepresent any material facts or information and that it will promptly enter corrected or updated Registration Data via the Services, or otherwise advise MRC promptly in writing of any such changes or updates. Customer further consents to MRC’s verification of its Registration Data as required for its use of and access to the Services.

 

8.3. Other Security and Backup. Customer is responsible for properly configuring and using the Services and taking Customer’s own steps to maintain appropriate security, protection, and backup of Customer Content/Data, which may include the use of encryption technology to protect Customer Content/Data from unauthorized access and routine archiving. Customer Content/Data, MRC login credentials, and any private keys generated by the Services are for Customer’s internal use only, and Customer may not sell, transfer, or sublicense them to any other entity or person, except that Customer may disclose any private keys to Authorized Users.

 

8.4. Authorized User Violations.  Customer will be deemed to have taken any action that Customer permits, assists, or facilitates any person or entity to take related to this Agreement, Customer Content/Data, or use of the Services. Customer is responsible for Authorized Users’ of Customer Content/Data and the Services. Customer will ensure that all Authorized Users comply with Customer’s obligations under this Agreement. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by an Authorized User, Customer will immediately terminate such Authorized User’s access to Customer Content/Data and the Services.

 

8.5. Customer Representations Regarding Use of the Services.

a. Customer will not use any automated collection mechanism (for example, any robot, spider, or other automatic device) to monitor or copy any MRC web pages comprising the MRC website or the Services without the prior written permission of MRC. Without limiting the foregoing Customer acknowledges and agrees that MRC prohibits crawling, scraping, caching, or otherwise accessing the MRC website or the Services via automated means, including, but not limited to user profiles and any user submissions (except as may be the result of a recognized commercially available search engine.)

b. Customer will not: (a) use the Services in any way that violates any applicable federal, state, local, or international law or regulation (including without limitation, any laws regarding the export of technical data or software to and from the US or other countries); (b) post or use the Services to generate unsolicited email or advertisements, SMS, or spam messages; (c) impersonate any person or entity or otherwise misrepresent its affiliation with a person or entity; (d) use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services; (e) upload or transmit any worm, virus, Trojan horse, or other malicious or technologically harmful code; (f) attempt to gain access to secured portions of the Services to which it does not have access rights; or (g) unless otherwise agreed to by MRC, post Confidential Information via the Services.

 

c.  Services Providing Quotes. Some Services may provide automated and machine learning derived estimates of any type to include material cost estimates, coating costs, machine run times, programming times, machine set up times, material sizes and any other form of estimate used in the quoting process as part of their output (“Estimates”).  While MRC strives to make such Estimates as relevant and accurate as possible, Customer is responsible for ensuring it reviews any generated Estimates for applicability, reasonableness, and accuracy, and MRC shall have no liability, and Customer assumes all responsibility and liability, for Customer’s use of such Estimates.

 

8.6. Intellectual Property Rights Infringement. MRC respects the intellectual property rights of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate a Customer account where MRC reasonably determines that the Customer has infringed a third party’s intellectual property rights. If Customer believes that its, or any other party’s, intellectual property rights have been violated, or that its or another party’s works have been copied in a way that constitutes copyright infringement, Customer should provide the following information to MRC’s copyright agent:

 

a.     An electronic or physical signature of the person authorized to act on behalf of the copyright or intellectual property right interest;

b.     A description of the copyrighted work or other intellectual property that is claimed to have been infringed or violated;

c.      Customer’s mailing address, telephone number, and email address;

d.     A statement by Customer that it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

e.     A statement by Customer, made under penalty of perjury, that the above information contained in the notice is accurate and that the complainant is the copyright or other intellectual property right owner or is authorized to act on the copyright or intellectual property right owner’s behalf.

 

MRC’s agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

i. By Mail.

Attn: Legal Department
Machine Research Corporation
11501 SW Amu Street
Tualatin, OR 97062

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ii. By Phone:

800 – 930 – 0289

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iii. By email:

support@machineresearch.com

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Article IX. PROPRIETARY RIGHTS; INDEMNITY

9.1. Proprietary Rights.  Except for the license granted in Section 1.1, no right, title, or interest in intellectual property or other proprietary right in or to the Services made available under this Agreement is transferred to Customer hereunder. MRC and its third party licensors retain all right, title, and interest, including, but not limited to, all copyrights, patent rights, and other proprietary rights in and to the Services and all modifications, enhancements and derivatives thereof. Customer will retain all right, title, and interest to Customer Content/Data created by Customer using the Services. Except for any rights to use Customer Confidential Information or other information related to the Services granted to MRC under this Agreement or the Privacy Policy, no right, title, or interest in intellectual property or other proprietary right in and to the Customer Confidential Information or other information associated with the Services is transferred to MRC.  Notwithstanding the foregoing, MRC shall fully own and retain all rights to anonymous usage data derived from Customer Content/Data (“Usage Data”) as aggregated with usage data from MRC’s other customers for its own business purposes such as, but not limited to, running machine learning algorithms against the aggregated, anonymized data. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular Authorized User.    

 

9.2. Indemnification by Customer. Customer will defend, indemnify, and hold harmless MRC, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys fees) arising out of or relating to any third party claim concerning: (a) Customer or any Authorized Users’ use of the Services (including any activities under Customer’s MRC account or use by Customer employees and personnel); (b) breach of this Agreement or violation of applicable laws (including without limitation the ITAR rules and restrictions set forth in Section 12.11) by Customer or any Authorized User; (c) Customer Content/Data or the combination of Customer Content/Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Content/Data or by the use, development, design, production, advertising, or marketing of Customer Content/Data; or (d) a dispute between Customer and any Authorized User. If MRC or its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process, Customer will also reimburse MRC for reasonable attorneys fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at the respective parties’ then-current hourly rates. MRC will promptly notify Customer of any claim subject to this Section but MRC’s failure to promptly notify Customer will only affect Customer obligations under this Section to the extent that such failure prejudices Customer’s ability to defend the claim. Customer may: (a) use counsel of Customer own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as Customer deems appropriate, provided that Customer obtains MRC’s prior written consent before entering into any settlement.

 

9.3. Indemnification by MRC.  MRC will indemnify, defend, and hold harmless Customer, the permitted users and their respective officers, directors, agents, and representatives (collectively the “Customer Indemnified Parties”) from and against any and all damages, losses, liabilities, judgments, awards, costs, and expenses of any nature whatsoever, including attorney’s fees and court costs, incurred by Customer or any of the other Indemnified Parties as a result of any claim that Customer’s or any Customer Indemnified Party’s use of the Services in a manner that is in full compliance with this Agreement misappropriates, infringes or otherwise violates any copyright, trademark, trade secret, patent or any other proprietary right of any kind. MRC’s obligation to indemnify under this Section is subject to: (a) Customer promptly providing to MRC written notice of the initial claim or action brought against it (b) MRC’s right to control the defense and settlement of the claim (provided that MRC may not settle the claim without Customer’s consent unless it unconditionally releases Customer from all liability) and (c) Customer providing reasonable assistance to MRC.

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Article X. TEMPORARY SUSPENSION

10.1. General. MRC may suspend Customer’s or any Authorized User’s right to access or use any portion or all of the Services immediately upon notice to Customer if MRC , in its sole discretion, determines:

 

a. Customer or an Authorized User’s use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems, content or other intellectual property rights of any other MRC customer or third party, (iii) may subject MRC, MRC’s affiliates, or any third party to liability, or (iv) may be fraudulent;

 

b. Customer or any Authorized User is in breach of this Agreement; or

 

c. Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

 

10.2. Effect of Suspension. If MRC suspends Customer’s access to or use of any portion or all of the Services:

 

a. Customer remains responsible for all fees and charges Customer has incurred through the date of suspension;

 

b. Customer remains responsible for any applicable fees and charges for any Services to which Customer continues to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and

 

c. MRC will not erase any Customer Content/Data as a result of the Customer suspension, except as specified elsewhere in this Agreement.

 

MRC’s right to suspend Customer’s or any Authorized User’s right to access or use the Services is in addition to any other of MRC’s rights to terminate as provided in this Agreement.

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Article XI. TERM AND TERMINATION

11.1. Term. The initial term of this Agreement shall be the term specified on Customer’s Order Form. After expiration of the initial term specified on the Order Form, Customer’s subscription to the Services shall automatically renew for successive terms of equal duration (the initial term and each renewal term, a “Term”) at MRC’s standard monthly service fee then in effect unless either party provides written notice to the other party of their intent to terminate prior to the expiration of the Term or, in Customer’s case, via Customer’s cancelling through their billing interface. Written notice of an increase in fees for any renewal term shall be provided to Customer at least 30 days prior to the commencement of the applicable renewal term.

 

11.2. Termination by MRC.   MRC shall have the right, upon written notice to Customer provided either manually, by email, or by other electronic or digital communication, to (a) suspend the Services or terminate this Agreement at any time upon providing Customer 30 days prior written notice, or (b) suspend the Services or terminate this Agreement immediately if any of the following occur: (1) Customer fails to pay MRC any amount due hereunder; (2) Customer materially breaches any term or condition of this Agreement; (3) MRC has reasonable cause to believe that Customer is using the MRC Services for an unlawful purpose or in a way that may adversely affect the Services, or (4) if Customer has provided inaccurate credit information or MRC reasonably believes its credit has deteriorated and Customer refuses to pay any requested advance payment or deposit or (5) Customer terminates or suspends its business activities, liquidates all or a substantial portion of its assets for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets.

 

11.3. Termination by Customer.   Customer has the right to terminate this Agreement at any time with or without cause with prior written notice by cancelling through their billing interface or if: (1) MRC materially breaches any term or condition of this Agreement, provided such breach is not cured by MRC within 30 days following Customer’s notice to MRC of such breach; or (2) MRC terminates or suspends its business activities; liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets.

 

11.4. Effect of Termination.

 

a.   Upon any termination of this Agreement:

 

i.  All Customer rights under this Agreement terminate at the end of the last paid up Customer billing cycle, unless MRC terminates pursuant to Section 11.2;

ii. Customer remains responsible for all fees and charges Customer has incurred through the date of termination, including but not limited to fees and charges for in-process tasks completed after the date of termination and any Early Termination Fees;

iii. Customer will immediately return or, if instructed by MRC, destroy all MRC Confidential Information in Customer’s possession; and

iv. Upon Customer’s written notice to MRC, MRC will promptly return, or if instructed by Customer, destroy all Customer Confidential Information in MRC’s possession.

 

b.   Absent other agreement between MRC and Customer MRC will destroy all Customer Confidential Information in the Service one year after a termination of Customer’s Agreement.

 

c.    Section 12.3 below shall apply with respect to the survival of any other terms and conditions of this Agreement.

 

d.     Any post-termination assistance other than expressly stated in this Section 11 is subject to mutual written agreement by Customer and MRC.

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Article XII. GENERAL

12.1. Governing Law, Complete Agreement; Modifications.  This Agreement is governed by the laws of the State of Oregon, and Customer further consents to jurisdiction by the state and federal courts sitting in the State of Oregon in the County of Multnomah. This Agreement and any accompanying schedules are the complete agreement between MRC and Customer regarding the Services and supersede any prior agreements between MRC and Customer relating to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with, or different from the terms and conditions of this Agreement will be of no force or effect.

 

12.2. Attorneys Fees.  If either MRC or Customer employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing Party will be entitled to recover reasonable attorneys fees.

 

12.3. Survival.  Section 1.1 through 1.3 will not survive termination of this Agreement. Any other provisions reasonably necessary (as determined by any arbitrator or judge, as the case may be) to interpret the respective rights and obligations of the parties hereunder shall survive any termination or expiration of this Agreement regardless of the cause of such termination or expiration.

 

12.4. Assignment and Binding Effect.  Neither Party may assign this Agreement or the license granted hereunder without the express written consent of the other Party, other than in connection with an acquisition of all or substantially all of such Party’s business, stock or assets by merger, sale or otherwise, and any attempt to do so will be void.

 

12.5. Notices.

 

a. To Customer. MRC may provide any notice to Customer under this Agreement by:

 

i. Posting a notice on the MRC website; or

 

ii. sending a message to the email address then associated with Customer account. Notices MRC provide by posting on the MRC website will be effective upon posting and notices MRC provides by email will be effective when MRC sends the email. It is Customer’s responsibility to keep Customer’s email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when MRC sends the email, whether or not Customer actually receives the email.

 

b.     To MRC. To give MRC notice under this Agreement, Customer must contact MRC as follows:

 

i.   by e-mail transmission to support@machineresearch.com, effective immediately with evidence of receipt or

ii.   by personal delivery, overnight courier, or registered or certified mail to Machine Research Corporation, 11501 SW Amu Street, Tualatin, OR 97062. MRC may update the address for notices to MRC by posting a notice on the MRC website. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Any notices provided by registered or certified mail will be effective three business days after they are sent.

 

c. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

 

12.6. Waiver and Severability.  The waiver of a breach or default under this Agreement by MRC will not constitute the waiver of any subsequent breach or default. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.

 

12.7. Independent Contractors.  The Parties will at all times be independent contractors and will so represent themselves to all third Parties. Neither Party has granted to the other the right to bind it in any manner whatsoever, and nothing herein will be deemed to constitute either Party the agent or legal representatives of the other nor to constitute the Parties as joint ventures.

 

12.8. Excusable Delays.  Excluding Customer’s payment obligations, neither Party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, and shortage of materials.

 

12.9. Government Use.  The Services is a “commercial item” as that term is defined in 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202.1 through 227.7202.4, all U.S. Government end users acquire the Services with only those rights set forth therein.

 

12.10. ITAR Restrictions.  MRC maintains a valid Directorate of Defense Trade Controls (DDTC) registration however this DDTC registration confers no DDTC registration or other certification on Customer. Customer acknowledges and agrees that it and any Authorized Users will at all times comply with any rules and restrictions promulgated under the International Traffic in Arms Regulations (“ITAR,” 22 CFR 120-130) with respect to Customer’s use of the Services and any Customer Content/Data or Confidential Information.

 

12.11. Injunctive Relief.  In the event of a breach of this Agreement, money or damages will not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, either Party will be entitled to seek an injunction or other equitable relief against such breach.

 

12.13. Entire Agreement. This Agreement (including the Privacy Policy, Order Form, and any separate ITAR commitments of Customer) constitutes the entire agreement between Customer and MRC and supersedes all previous agreements, whether written or oral, between Customer and MRC, including any previous versions of this Agreement.

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