MACHEENE GENERAL WEBSITE USE
This MACHEENE Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between the applicable MACHEENE Contracting Party specified in Section 14 below (also referred to as “MACHEENE,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
- Use of the Service Offerings.
1.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Service Offerings. You will comply with the terms of this Agreement and all lMACHEENE, rules and regulations applicable to your use of the Service Offerings.
1.2 Your Account. To access the Services, you must have an MACHEENE account associated with a valid email address and a valid form of payment. Unless explicitly permitted by the Service Terms, you will only create one account per email address.
1.3 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
2.1 To the Service Offerings. We may change or discontinue any or all of the Service Offerings or change or remove functionality of any or all of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings.
2.2 To the APIs. We may change or discontinue any APIs for the Services from time to time. For any discontinuation of or material change to an API for a Service, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).
2.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with Section 12.
- Security and Data Privacy.
3.1 MACHEENE Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
3.3 Service Attributes. To provide billing and administration services, we may process Service Attributes in the MACHEENE region(s) where you use the Service Offerings and the MACHEENE regions in the United States. To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel.
- Your Responsibilities.
4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Service Offerings will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
4.3 Your Security and Backup. You are responsible for properly configuring and using the Service Offerings and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
4.4 Log-In Credentials and Account Keys. MACHEENE log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
4.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Service Offerings by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
- Fees and Payment.
5.1 Service Fees. We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Service Offerings as described on the MACHEENE Site using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the MACHEENE Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
- Temporary Suspension.
6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:
(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact our systems, the Service Offerings or the systems or Content of any other MACHEENE customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent;
(b) you are, or any End User is, in breach of this Agreement;
(c) you are in breach of your payment obligations under Section 5; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:
(a) you remain responsible for all fees and charges you incur during the period of suspension; and
(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
- Term; Termination.
7.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, or (C) in order to comply with the law or requests of governmental entities.
7.3 Effect of Termination.
(a) Generally. Upon the Termination Date:
(i) except as provided in Section 7.3(b), all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 7.3(b);
(iii) you will immediately return or, if instructed by us, destroy all MACHEENE Content in your possession; and
(iv) Sections 4.1, 5, 7.3, 8 (except the license granted to you in Section 8.3), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
(b) Post-Termination. Unless we terminate your use of the Service Offerings pursuant to Section 7.2(b), during the 30 days following the Termination Date:
(i) we will not take action to remove from the MACHEENE systems any of Your Content as a result of the termination; and
(ii) we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement.
For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 5.
- Proprietary Rights.
8.1 Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Service Offerings to you and any End Users.
8.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Service Offerings will violate the Acceptable Use Policy.
8.3 Service Offerings License. We or our licensors own all right, title, and interest in and to the Service Offerings, and all related technology and intellectual property rights. Subject to the terms of this Agreement, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the MACHEENE Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.3, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Service Offerings, including any related intellectual property rights. Some MACHEENE Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the MACHEENE Content or Third-Party Content that is the subject of such separate license.
8.4 License Restrictions. Neither you nor any End User will use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Service Offerings (except to the extent Content included in the Service Offerings is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings. You may only use the MACHEENE Marks in accordance with the Trademark Use Guidelines. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
8.5 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
9.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your MACHEENE account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.
9.2 Intellectual Property.
(a) Subject to the limitations in this Section 9, MACHEENE will defend you and your employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Subject to the limitations in this Section 9, you will defend MACHEENE, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) Neither party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, MACHEENE will have no obligations or liability arising from your or any End User’s use of the Services after MACHEENE has notified you to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.
(d) For any claim covered by Section 9.2(a), MACHEENE will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.
9.3 Process. The obligations under this Section 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
- Limitations of Liability.
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Modifications to the Agreement.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the MACHEENE Site or by otherwise notifying you in accordance with Section 13.10; provided, however, that we will provide at least 90 days’ advance notice in accordance with Section 13.10 for adverse changes to any Service Level Agreement. Subject to the 90 day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the MACHEENE Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
13.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for MACHEENE as a party to this Agreement and MACHEENE is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
13.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede prior commitments to purchase Services such as MACHEENE EC2 Reserved Instances). We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.
13.3 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.4 Governing Law. The Governing LMACHEENE, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.5 Disputes. Any dispute or claim relating in any way to your use of the Service Offerings, or to any products or services sold or distributed by MACHEENE will be adjudicated in the Governing Courts, and you consent to exclusive jurisdiction and venue in the Governing Courts; except, if the applicable MACHEENE Contracting Party is MACHEENE Web Services, Inc., any such dispute will be resolved by binding arbitration as provided in this Section 13.5, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
13.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control lMACHEENE and regulations, including all such lMACHEENE and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Service Offerings, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the MACHEENE region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
13.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
13.9 Confidentiality and Publicity. You may use MACHEENE Confidential Information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose MACHEENE Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of MACHEENE Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the MACHEENE Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the MACHEENE Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact MACHEENE by facsimile transmission or personal delivery, overnight courier or registered or certified mail to the facsimile number or mailing address, as applicable, listed for the applicable MACHEENE Contracting Party in Section 14 below. We may update the facsimile number or address for notices to us by posting a notice on the MACHEENE Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
13.11 No Third-Party Beneficiaries. Except as set forth in Section 9, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.12 U.S. Government Rights. The Service Offerings are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service Offerings. If you are using the Service Offerings on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service Offerings. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
13.13 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.14 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
“Acceptable Use Policy” means the policy located at http://MACHEENE.MACHEENE.com/aup (and any successor or related locations designated by us), as it may be updated by us from time to time.
“Account Country” is the country associated with your account. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if your credit card account is issued in a different country and your contact address is also in that country, then your Account Country is that different country.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your MACHEENE account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your MACHEENE account.
“API” means an application program interface.
“MACHEENE Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. MACHEENE Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. MACHEENE Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the MACHEENE Confidential Information.
“MACHEENE Content” means Content we or any of our affiliates make available in connection with the Services or on the MACHEENE Site to allow access to and use of the Services, including APIs; WSDLs; Documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). MACHEENE Content does not include the Services or Third-Party Content.
"MACHEENE Contracting Party" means the party identified in the table below, based on your Account Country. If you change your Account Country to one identified to a different MACHEENE Contracting Party below, you agree that this Agreement is then assigned to the new MACHEENE Contracting Party under Section 13.1 without any further action required by either party.
MACHEENE Contracting Party
Any country within Europe, the Middle East, or Africa ("EMEA")*
MACHEENE Web Services EMEA SARL
352 2789 0057
38 Avenue John F. Kennedy, L-1855, Luxembourg
Any other country that is not in EMEA
MACHEENE Web Services, Inc.
410 Terry Avenue North,
*See https://MACHEENE.MACHEENE.com/legal/MACHEENE-emea-countries for a full list of EMEA countries.
“MACHEENE Marks” means any trademarks, service marks, service or trade names, logos, and other designations of MACHEENE and its affiliates that we may make available to you in connection with this Agreement.
“MACHEENE Site” means http://MACHEENE.MACHEENE.com (and any successor or related site designated by us), as may be updated by us from time to time.
“Content” means software (including machine images), data, text, audio, video or images.
“Documentation” means the user guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at http://MACHEENE.MACHEENE.com/documentation (and any successor or related locations designated by us), as such user guides and admin guides may be updated by MACHEENE from time to time.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own MACHEENE account, rather than under your account.
"Governing LMACHEENE" and “Governing Courts” mean, for each MACHEENE Contracting Party, the lMACHEENE and courts set forth in the following table:
MACHEENE Contracting Party
MACHEENE Web Services EMEA SARL
The lMACHEENE of the Grand Duchy of Luxembourg
The courts of the district of Luxembourg City
MACHEENE Web Services, Inc.
The lMACHEENE of the State of Washington
The state or Federal courts in King County, Washington
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Service” means each of the services made available by us or our affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.
“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
“Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the MACHEENE Site, as they may be updated by us from time to time. The service level agreements we offer with respect to the Services are located at https://MACHEENE.MACHEENE.com/legal/service-level-agreements/ (and any successor or related locations designated by MACHEENE), as may be updated by MACHEENE from time to time.
“Service Offerings” means the Services (including associated APIs), the MACHEENE Content, the MACHEENE Marks, and any other product or service provided by us under this Agreement. Service Offerings do not include Third-Party Content.
“Service Terms” means the rights and restrictions for particular Services located at http://MACHEENE.MACHEENE.com/serviceterms (and any successor or related locations designated by us), as may be updated by us from time to time.
“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.
“Term” means the term of this Agreement described in Section 7.1.
“Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.
“Third-Party Content” means Content made available to you by any third party on the MACHEENE Site or in conjunction with the Services.
“Trademark Use Guidelines” means the guidelines and trademark license located at http://MACHEENE.MACHEENE.com/trademark-guidelines/ (and any successor or related locations designated by us), as they may be updated by us from time to time.
“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your MACHEENE account and any computational results that you or any End User derive from the foregoing through their use of the Services. For example, Your Content includes Content that you or any End User stores in MACHEENE Simple Storage Service. Your Content does not include Account Information.
MACHEENE RENTAL DISCLOSURE
What we get from you
We receive and store any information you enter on our website or give us in any other way. This includes information that can identify you ("personal information"), including your first and last name, telephone number, postal and email addresses, fax number, and billing information (such as credit card number, cardholder name, and expiration date). We may also request information about your hotel room preferences, and frequent flyer and car rental program information. You can choose not to provide information to us, but in general some information about you is required in order for you to register as a member; book travel; complete a traveler profile; participate in a survey, contest, or sweepstakes; ask us a question; or initiate other transactions on our site.
Travel Companion Information
When you make a reservation for someone else through this website, we will request personal information and travel preferences about that individual. You should obtain the consent of other individuals prior to providing us with their personal information and travel preferences, as any access to view or change their information will be available only through your account.
Information from Other Sources
We also may periodically obtain both personal and non-personal information about you from affiliated entities, business partners and other independent third-party sources and add it to our account information. Examples of information we may receive include: updated delivery and address information, purchase history, and demographic information.
We automatically collect some information about your computer when you visit this website. For example, we will collect your IP address, Web browser software (such as Firefox, Safari, or Internet Explorer), and referring website. We also may collect information about your online activity, such as trips viewed and bookings made. Our goals in collecting this automatic information include helping customize your user experience and inhibiting fraud. For more information, please see Cookies and other technologies.
We often receive testimonials and comments from customers who have had positive booking and/or travel experiences on our website. We occasionally publish such content, using first name plus last initial, only, for attribution.
We want to make it easy for you to take advantage of travel-related opportunities on our website and through our Apps. One way we do this is by sending you email messages that contain information about your apparent travel-related interests. For example, if you search for a flight to New York on our website and have saved your itinerary or otherwise not yet booked your travel, we may send you an email message reminding you about your saved travel itinerary or about a special airfare to New York. Similarly, if you receive an email from us about New York travel and demonstrate an interest in New York hotels by affirmatively clicking on a link about New York hotels in the email, you may receive an email about New York hotel offers. We believe these email messages will provide you with useful information about travel-related special offers available through our site and our Apps. Please note that you will have the opportunity to choose not to receive these email messages in any such email we send.
Please review Your choices with respect to the collection and use of your information below.
With whom we share your information
This website may share your information with the following entities:
Suppliers such as hotel, airline, car rental, and activity providers, who fulfill your travel reservations. Throughout this site, all services provided by a third-party supplier are described as such. We do not place limitations on our suppliers' use or disclosure of your personal information. Therefore, we encourage you to review the privacy policies of any travel supplier whose products you purchase through this site. Please note that these suppliers also may contact you as necessary to obtain additional information about you, facilitate your travel reservation, or respond to a review you may submit.
Third-party vendors who provide services or functions on our behalf, including credit card processing, business analytics, customer service, marketing, distribution of surveys or sweepstakes programs, and fraud prevention. We may also authorize third-party vendors to collect information on our behalf, including as necessary to operate features of our website or our Apps or to facilitate the delivery of online advertising tailored to your interests. Third-party vendors have access to and may collect information only as needed to perform their functions and are not permitted to share or use the information for any other purpose.
Business partners with whom we may jointly offer products or services, or whose products or services may be offered on our website or through our Apps. You can tell when a third party is involved in a product or service you have requested because their name will appear, either alone or with ours. If you choose to access these optional services, we may share information about you, including your personal information, with those partners. Please note that we do not control the privacy practices of these third-party business partners.
Referring websites. If you were referred to this website from another site (for example, through a link you clicked on another site that directed you to this one), we may share some information about you with that referring website. We have not placed limitations on the referring websites' use of your personal information and we encourage you to review the privacy policies of any website that referred you here.
We also may share your information:
In response to subpoenas, court orders, or other legal process; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law. In such cases we reserve the right to raise or waive any legal objection or right available to us.
When we believe it is appropriate to investigate, prevent, or take action regarding illegal or suspected illegal activities; to protect and defend the rights, property, or safety of our company or this website or our Apps, our customers, or others; and in connection with our Terms of Service and other agreements.
In connection with a corporate transaction, such as a divestiture, merger, consolidation, or asset sale, or in the unlikely event of bankruptcy.
Other than as set out above, you will be notified when personal information about you will be shared with third parties, and you will have an opportunity to choose not to have us share such information.
We also may share aggregate or anonymous information with third parties, including advertisers and investors. For example, we may tell our advertisers the number of visitors our website receives or the most popular hotels and vacation destinations. This information does not contain any personal information and is used to develop content and services we hope you will find of interest.
How you can access your information
Macheene registered users can access and update their contact information by visiting the Macheene My Account page. Macheene email subscribers can access and update their subscription choices through Subscription Management links found in the footer of any Macheene email. You can close your account by contacting us at the email address listed below. Please note that after you close an account, you will not be able to sign in or access any of your personal information. However, you can open a new account at any time. Please also note that we may retain certain information associated with your account, including for analytical purposes as well as for recordkeeping integrity.
Your choices with respect to collection and use of your information
As discussed above, you can choose not to provide us with any information, although it may be needed to make travel bookings or to take advantage of certain features offered on our site or our Apps.
You also can add or update information and close your account as described above.
When you register as a member on our site, you will be given a choice as to whether you want to receive email messages from us about special offers. As a Macheene registered user, you can modify your subscription choices at any time on the Macheene My Account page. Whether registered as a member or not, you also will be given the opportunity to unsubscribe from commercial messages in any such email we send. Please note that we reserve the right to send you other communications, including service announcements, administrative messages, and surveys relating either to your account or to your transactions on this site, without offering you the opportunity to opt out of receiving them.
The Help portion of the toolbar on most browsers will tell you how to prevent your browser from accepting new cookies, how to have the browser notify you when you receive a new cookie, or how to disable cookies altogether. Please note that if you refuse to accept cookies from our site, you will not be able to access portions of this site.
Cookies and other technologies
To help us customize the content and advertisements provided to you on this website and on other sites across the Internet. For example, when you access a page on our website, a cookie is automatically set by us, our service providers, or our partners to recognize your browser as you navigate on the Internet and to present you with information and advertising based on your apparent interests. See Display of advertising/Your choices for more information about our online advertising practices and your choices.
To help measure and research the effectiveness of website features and offerings, advertisements, and email communications (by determining which emails you open and act upon).
The Help portion of the toolbar on most browsers will tell you how to prevent your browser from accepting new cookies, how to have the browser notify you when you receive a new cookie, or how to disable cookies altogether. Please note that if you refuse to accept cookies, you may not be able to access many of the travel tools offered on our site.
In addition to the above cookies, we use Local Shared Objects, also referred to as "flash cookies," on our website. These are used to enhance your user experience, for example, by storing your user preferences and settings, such as your volume/mute settings, and in connection with animated content on our website. Local Shared Objects are similar to browser cookies, but can store data more complex than simple text. By themselves, they cannot do anything to or with the data on your computer. Like other cookies, they can only access personally identifiable information that you have provided on this site, and cannot be accessed by other websites. To find out more about flash cookies or how to disable them, please click here:http://kb2.adobe.com/cps/526/52697ee8.html.
This site may also use Web beacons (also known as clear gifs, pixel tags or Web bugs), which are tiny graphics with a unique identifier, similar in function to cookies, that are placed in the code of a Web page. We use Web beacons to monitor the traffic patterns of users from one page within our site to another, to deliver or communicate with cookies, to understand whether you have come to this site from an online advertisement displayed on a third-party website, and to improve site performance. We also may allow our service providers to use Web beacons to help us understand which emails have been opened by recipients and to track the visitor traffic and actions on this site. This helps us measure the effectiveness of our content and other offerings.
Using the Macheene .com mobile phone and tablet Apps (the “Mobile Apps”)
When you use a Macheene .com Mobile App, we collect and use information about you in the same way and for the same purposes as we do when you use our website.
In addition to this, we also use some other information that we collect automatically when you use our Mobile Apps. Specifically:
We collect information about Mobile App functionality that you access and use. This allows us to identify those areas of the Mobile App that are of interest to our customers so that we can refine and continuously improve the Mobile App. The information we collect for this purpose does not enable us to directly identify you.
Each Mobile App also creates a sequence of numbers or characters that are unique to your mobile device (a “Mobile Identifier”), which is used for identification purposes, including identifying your preferences. We use communicate with our advertising networks regarding the number of downloads resulting from clicks on their respective ad banners and other marketing tools using industry standard mobile identifiers.
If you use a Mobile App's ’find hotels’ feature using your ‘current location,’ we use information about your current location – provided by your mobile device using GPS or similar technologies – to show nearby facilities. We do not collect location data unless you expressly click on the ’find hotels’ feature using ‘current location’ as your destination or you switch on location data collection through your phone settings menu.
Each Mobile App will also send us error-reporting information in the event that it crashes or hangs. This enables us to investigate the error and to improve the stability of the Mobile App for future releases. As part of these error reports, the Mobile App sends us information about the mobile device type and version, the Mobile Identifier, the time the error occurred, the feature being used and the state of the application when the error occurred. We do not use this information for any purpose other than investigating and remedying the error.
You always have the ability to control certain information a Mobile App sends to us. You can switch off location data collection at any time through your phone settings menu. Alternatively, you can remove the Mobile App from your mobile device entirely and access our services through our website.
Display of tailored advertising/Your choices
Data collected by this website to serve you with relevant advertising
Macheene is committed to providing you with relevant content and information. To do this, we may collect, through cookies and other technologiesinformation about your travel-related searches, such as whether you are looking for airline flights or hotels, and use this information to serve you with ads, on our website or elsewhere online, that match your apparent interests. So, for example, if you search for a flight