Software License Agreement for MachiningCloud App
Effective as of January 11, 2017
Please read this Software License Agreement for the Machining Cloud App (“License Agreement”) carefully before installing and, or using the Machining Cloud App computer software, its documentation and, or data (“Software”). By installing and, or using the Software you are agreeing to be bound by the terms of this License Agreement. If you do not agree to the terms of this License Agreement, do not install or use the Software, and return the Software to your point of purchase for a refund.
This License Agreement is a legal agreement between you, either an individual or an entity, (“You”) and MachiningCloud Inc., a California corporation with its principal place of business at 1130 Avenida Acaso, Camarillo, CA 93012, (“MCS”) relating to the Software and its revisions from time to time.
1. Grant of License
MCS grants You a nonexclusive, nonsublicensable, nontransferable limited right to use the Software (“License”) in accordance with the terms of this License Agreement. Your use of the software shall be limited to the Software components and to the usage restrictions for the License Type you have purchased and paid the applicable Licensing Fees.
(a) You may install the Software on one (1) computer and one (1) person at a time may use the Software on the installed computer.
(b) You may make backup copies of the Software for the purposes of disaster recovery.
2. Responsibility for Selection and Use
You are responsible for the supervision, management and control of the use of the Software, and output of the Software, including, but not limited to: (1) selection of the Software to achieve your intended results; (2) determining the appropriate uses of the Software and the output of the Software for your business; (3) establishing adequate independent procedures for testing the accuracy of the Software and any output; and (4) establishing adequate backup to prevent the loss of data in the event of a Software malfunction.
The Software is a tool that is intended to be used only by trained professionals. It is not to be a substitute for professional judgment or independent testing of results or output. You are solely responsible for any results obtained from using the Software.
You are solely responsible to verify that the part programs output by the Software are correct, safe and suitable to run on Your machine tool without error. Failure to locate and correct errors may result in serious damage to equipment or injury or death of personnel in the proximity of the machine. Any and all such outcome is solely Your responsibility.
The Software includes data provided to MCS by third-parties. MCS provides this data as a courtesy to You and makes no claims to the accuracy of the data. It is Your responsibility to validate the data before cutting any parts. MCS shall not be liable to You or any third party for any losses and/or damage as a result of the use of data.
CAUTION: YOU MUST VERIFY THE RESULT OF THE OUTPUT OF THE SOFTWARE PRIOR TO USING THE OUTPUT ON ANY EQUIPMENT OR IN ANY MANUFACTURING PROCESS.
3. Rights and Interest
The Software is licensed to you and not sold to you. MCS and its licensors shall retain all copyright, trademark, trade secret, intellectual property, proprietary and other rights and interests in and to the Software. You shall not acquire any rights in or related to the Software, or any component thereof, other than those rights expressly provided to You under this License Agreement. You may not remove from the Software any copyright or other proprietary rights notices or any disclaimers or any splash screens, and you shall reproduce on all copies of the Software made in accordance with this Agreement, all such notices and disclaimers. THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND OTHER INTELLECTUAL PROPERTY LAWS.
You shall not provide access to, loan, rent, lease, sublicense, sell or otherwise move or transfer the Software or the License, either on a temporary or permanent basis to any third party. Transfers of the Software or a License between subsidiaries or facilities of a common parent company may be approved by MCS, on a case-by-case basis in its sole discretion, but only will be considered if: (i) the subsidiaries or facilities are within the same country in which the License was originally registered; and (ii) the Software is covered under an active software maintenance contract at the time of the requested transfer; and (iii) You notify MCS in writing of the proposed transfer prior to any move; and (iv) MCS grants its approval to the transfer in writing.
You may not install or use the Software over the Internet, including, without limitation, use in connection with a Web hosting, cloud or similar service, or make the Software available to third parties via the Internet on your computer system or otherwise.
5. Software Versions
The rights granted by this License Agreement are for the current commercially available version of the Software at the time of the License purchase. This License Agreement does not grant any rights to future updates, upgrades or new versions of the Software. If You are provided with or download any such updates, upgrades or new versions, they shall be subject to the terms and conditions of this License Agreement and any additional, new or amended agreement which may accompany them.
6. Security Mechanisms
MCS takes steps to assure that all Licenses of the Software are legally obtained and used within the restrictions of this License Agreement. The Software contains security programs, license files, trusted storage files, time locks and may include hardware security modules or dongles (“Security System”). It is a violation of this License Agreement to tamper with, modify, alter, by-pass or otherwise disable this Security System. You shall operate the Security System as designed by MCS at all times while the Software is in use. Failure to do so is a violation of this License Agreement, MCS’s copyrights, and is contrary to U.S. and international laws and treaties.
7. Whole Product
You shall not use any portion, component, program or element of the Software on a stand-alone basis, or separately from, or independently of the Software. At all times you shall install and use the Software as provided by MCS as one product. You may not modify or make derivative works of the Software or make compilations or collective works that include the Software, and you may not analyze for purposes competitive to MCS, reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as permitted under applicable law, as it contains trade secrets of MCS and its licensors, such as the Software’s structure, organization and code.
You acknowledge and agree that the Software was developed at considerable time and expense to MCS and is confidential, proprietary and contains trade secrets of MCS. You shall maintain the Software in strict confidence and You shall use Your best efforts to protect it from unauthorized disclosure or use and agree not to disclose or provide access thereto to any person, except to Your employees with a need to exercise the rights granted by this License Agreement.
9. Third Party Software
The Software contains third-party software or portions of software owned by other companies which has been licensed by MCS for inclusion within this Software. Such third-party software is the property of its respective owners, but also carries restrictions which are incorporated by reference into this License Agreement. MCS disclaims any warranties, expressed or implied, and does not grant any license or any other rights including intellectual property rights, with respect to any third party software included within the Software.
10. Disclaimer of Warranty
THE SOFTWARE IS PROVIDED TO YOU ON AN “AS IS” BASIS. MCS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MCS SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR BE ERROR-FREE, OR WILL MEET ANY END USER REQUIREMENT, OR THAT ANY DATA SENT BY YOU OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE PERIOD OF TIME, OR THAT THE FUNCTIONS PERFORMED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED BY YOU OR THAT THE SOFTWARE WILL ACHIEVE THE RESULTS DESIRED BY YOU. YOU ACKNOWLEDGE THAT THE USE OF THE SOFTWARE ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO WORK.
CAUTION: YOU MUST VERIFY THE RESULT OF THE OUTPUT OF THE SOFTWARE PRIOR TO USING THE OUTPUT ON ANY EQUIPMENT OR IN ANY MANUFACTURING PROCESS.
11. LIMITATION OF LIABILITY:
THE PROVISIONS OF THIS PARAGRAPH 12 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR ANY PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE. MCS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT, AND UNDER NO CIRCUMSTANCES, SHALL MCS BE LIABLE TO YOU OR TO ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF ANY NATURE OR TYPE EVEN IF THE PARTY TO BE CHARGED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE CAUTIONED THAT YOU MUST VERIFY THAT THE PART PROGRAMS OUTPUT BY THE SOFTWARE ARE CORRECT, SAFE AND SUITABLE TO RUN ON YOUR MACHINE TOOL WITHOUT ERROR. YOU MUST LOCATE AND CORRECT ERRORS BECAUSE SUCH ERRORS MAY RESULT IN SERIOUS DAMAGE TO EQUIPMENT OR INJURY OR DEATH OF PERSONNEL IN THE PROXIMITY OF YOUR MACHINE. ERRORS MAY RESULT IN THE OUTPUT NOT BEING AS INTENDED OR CONTEMPLATED. IT IS YOUR RESPONSIBILITY TO VERIFY ALL OUTPUT AT ALL STAGES.
THE ONLY TYPE OF DAMAGE FOR WHICH MCS WILL BE RESPONSIBLE SHALL BE DIRECT DAMAGES IF YOU HAVE FULLY COMPLIED WITH ALL PROVISIONS OF THIS LICENSE AGREEMENT, WITHOUT LIMITATION, AND IN SUCH A CIRCUMSTANCE, THE TOTAL OF SUCH DAMAGES FOR WHICH MCS SHALL BE LIABLE SHALL IN NO EVENT EXCEED FOR ALL CAUSES OF ACTION ON ACCUMULATIVE BASIS, THE PAYMENTS ACTUALLY MADE BY YOU TO MCS UNDER THIS AGREEMENT FOR THE SOFTWARE. NOTWITHSTANDING THE FOREGOING, MCS SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY OTHER THIRD PARTY OR PERSON CLAIMING BY OR THROUGH YOU, FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SOFTWARE OR ANY MCS SERVICE.
IN NO EVENT WILL MCS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF BUSINESS INFORMATION OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SOFTWARE, DOWNTIME COSTS, LOSS OF THE USE OF ANY OF YOUR EQUIPMENT OR THE SOFTWARE, DAMAGED OR DEFECTIVE PRODUCTS MANUFACTURED USING THE SOFTWARE, COST OF SUBSTITUTE GOODS, FACILITIES, OR SERVICES, COSTS OF CAPITAL, DAMAGE TO COMPUTERS, COST TO COVER, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, WHETHER ALLEGED AS A BREACH OF CONTRACT, TORTUOUS CONDUCT, NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY OR MISREPRESENTATION, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD-PARTY SOFTWARE, EVEN IF MCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE LICENSE FEE SET FORTH HEREIN REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT MCS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT.
You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Software. You agree to hold harmless and indemnify MCS and its subsidiaries, affiliates, officers and employees from and against any and all claims, suits or actions arising from or in any way related to Your use of the Software or Your violation of this License Agreement.
13. U.S. Government Restricted Rights
The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-4 (JUN 1995).
In the event that you receive a request from any agency of the U.S. government to provide Software with rights beyond those set forth above, you will notify MCS of the scope of the request and MCS will have five (5) business days to, in its sole discretion, accept or reject such request.
14. Export Regulation
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law.
MCS may collect certain information about You during the download, installation, registration and activation process and during Your use of the Software. MCS may also query your computer during these processes to collect certain computer information, including but not limited to the characteristics of the hardware and operating systems on which You will operate the Software. This information is gathered to facilitate the provision of software, software updates, product support and other services to You. This information is collected directly by MCS and/or via MCS’s use of Google Analytics. Further information on how Google uses data when you use the Software is available at www.google.com/policies/privacy/partners/.
The License granted herein shall continue until it is terminated in accordance with this Article. MCS may terminate the License granted herein immediately upon written notice to You for justified cause, including, without limitation, breach of any provision of this License Agreement. Upon the termination of the License, you shall immediately cease use of the Software and destroy all copies of the Software.
17. General Provisions
This License Agreement is the complete and exclusive statement of your agreement with MCS relating to the Software and supersedes any other agreement, oral or written, or any other communications between You and MCS relating to the Software; provided, however, that this License Agreement shall not supersede the terms of any signed agreement between You and MCS relating to the Software. This License Agreement shall be governed by and construed and enforced in accordance with the substantive laws of the State of California without regard to the United Nations Convention on Contracts for the International Sale of Goods and will be deemed a contract under seal. This License Agreement shall be deemed entered into in the County of Ventura, State of California, USA. The jurisdiction for any and all disputes shall be the County of Ventura, State of California, USA. The English language version of this License Agreement shall be the authorized text for all purposes, despite translations or interpretations of this License Agreement into other languages. If for any reason a court of competent jurisdiction finds any provision of this License Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible and the remainder of this License Agreement shall remain in full force and effect.
If any part of this License Agreement is judged by any Court of competent jurisdiction to be invalid, that judgment shall not affect or nullify the remainder of this License Agreement, and the effect shall be confined to the part immediately involved in the controversy adjudged.
19. Entire Agreement
You acknowledge and agree that this License Agreement is complete and the exclusive statement of the mutual understandings of the parties, and that it supersedes and cancels all previously written and oral agreements and communications relating to the subject matter of this License Agreement. In the event of any conflict between this License Agreement and the terms and conditions of any purchase order or similar document pursuant to which you acquired the license granted by this License Agreement, the terms and conditions of this License Agreement shall control.