Equipt Master Subscription Agreement
This Equipt Master Subscription Agreement (“MSA”) is between MachineWeb Inc., a Michigan corporation with a place of business at 659 Chesterfield Ave, Birmingham, MI 48009 (“MachineWeb Inc.”), and the individual or entity that creates, accesses, uses, or otherwise accepts an Equipt account (“Customer”) (each a “Party” and together the “Parties”).
Customer accepts this MSA when, after being presented with notice that the applicable action constitutes acceptance and a link to this MSA, Customer: (a) clicks “Create Account”; (b) first accesses or uses an account created for Customer by MachineWeb Inc.; or (c) otherwise affirmatively agrees to this MSA electronically or in writing. The date Customer first takes any such action is the “Effective Date.” An individual accepting this MSA for an entity represents that the individual has authority to bind that entity.
- Services
- Fees and Payment
- Term and Termination
- License and Use of the Services
- Confidentiality
- Data Practices
- Privacy Practices
- Intellectual Property Rights
- Representations, Warranties, and Disclaimers
- Indemnification
- Limitation of Liability
- Miscellaneous
Services
“Services” means the Equipt software platform and related services provided by MachineWeb Inc., whether Customer uses the platform directly or MachineWeb Inc. performs services on Customer’s behalf, including the authorized collection or import of item information from websites and other sources, creation and management of listings, and publication of listings through the Equipt marketplace and other Customer-approved channels, on a free, trial, or paid basis. Customer may receive Services without directly accessing or using the software. Services exclude products or services provided by third parties, even if Customer connects them to the Services. Subject to this MSA, MachineWeb Inc. will make the Services available during the Term in accordance with the plan, features, usage limits, fees, and billing terms shown at signup, checkout, or in Customer’s account, together with any separate discount or other special-pricing arrangement agreed by the Parties in writing, including by email or other electronic communication (collectively, the “Subscription Details”). If this MSA conflicts with the Subscription Details, the Subscription Details control only as to plan-specific commercial terms.
1.1. Changes to the Services.
MachineWeb Inc. may add, modify, replace, suspend, or discontinue features or functionality of the Services. When reasonably practicable, MachineWeb Inc. will provide at least thirty (30) days' advance notice of a change that materially reduces the core functionality of a paid subscription. Advance notice is not required for changes made to address legal requirements, security risks, abuse, or changes to third-party services. Customer may cancel its affected paid subscription before a notified material change becomes effective, which will be Customer's exclusive remedy for the change.
Fees and Payment
2.1. Fees.
Customer will pay the fees shown in the Subscription Details (the “Fees”).
2.2. Payment; Taxes.
Unless otherwise shown in the Subscription Details, MachineWeb Inc. or its payment processor may charge the payment method associated with Customer's account for recurring subscription Fees monthly in advance until Customer cancels or downgrades its paid subscription, and for any one-time, overage, seat, usage, or other variable Fees as incurred. Customer authorizes these recurring charges. MachineWeb Inc. will charge the applicable per-seat rates and other variable Fees included in the Subscription Details. By adding an Authorized User or using a billable feature, Customer authorizes the resulting charge. Invoices and billing statements may show aggregate Fees and are not required to identify seat counts, usage units, or individual calculation components. Upon request, MachineWeb Inc. will provide Customer with a reasonable itemization or explanation of the charges and the applicable rates used to calculate the total. Customer must notify MachineWeb Inc. of a disputed charge within thirty (30) days after the charge is made or the applicable invoice is issued. MachineWeb Inc. will investigate the dispute in good faith and correct any confirmed billing error. If MachineWeb Inc. issues an invoice instead, Customer will pay it upon receipt. Any invoice not paid when due may be charged a late fee of $25. Fees do not include any local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, all of which are the responsibility of Customer, excluding taxes based on MachineWeb Inc.'s net income, property, or employees.
2.3. Changes to Fees.
MachineWeb Inc. may change the Fees upon at least thirty (30) days' advance notice by email or through the Services. Any increase will take effect at the beginning of Customer's next Subscription Term that begins after the notice period. Customer may cancel or downgrade its paid subscription before the increase takes effect. Continued use of the applicable paid Services after the effective date constitutes acceptance of the new Fees.
Term and Termination
3.1. Term.
This MSA commences on the Effective Date and continues until terminated in accordance with this Section 3 (the “Term”). Each paid subscription will continue for the monthly, annual, or other subscription period shown in the Subscription Details (each, a “Subscription Term”). Unless otherwise shown in the Subscription Details, the Subscription Term is month-to-month and each Subscription Term automatically renews for successive periods of the same length until canceled.
3.2. Termination for Cause.
Either Party may terminate this MSA or the affected subscription upon written notice if the other Party: (a) materially breaches this MSA or the Subscription Details and fails to cure such breach within thirty (30) days after receiving written notice of the breach; (b) becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition in bankruptcy or similar proceeding, or ceases to do business in the ordinary course; or (c) engages in unlawful conduct or conduct that materially harms the terminating Party’s business, operations, or reputation.
3.3. Cancellation.
Customer may cancel or downgrade a paid subscription at any time by written notice or through any account-cancellation functionality made available by MachineWeb Inc. For a month-to-month subscription, cancellation or downgrade will be effective at the end of the then-current monthly billing period. For a prepaid annual or other fixed-term subscription, cancellation will prevent renewal and will be effective at the end of the then-current Subscription Term. Customer may request an earlier discontinuation or downgrade, but Customer remains responsible for all Fees for the current Subscription Term and will not receive a refund or credit for any unused portion, discount, waived onboarding fee, or other promotional benefit, except as required by law. MachineWeb Inc. may otherwise terminate this MSA or an affected subscription for convenience upon thirty (30) days’ written notice. If MachineWeb Inc. terminates a prepaid Subscription Term for convenience, MachineWeb Inc. will refund the prepaid Fees allocable to the unused portion of the terminated Subscription Term, less any amounts then due from Customer. No refund is required if MachineWeb Inc. terminates for cause or suspends or restricts Services under this MSA.
3.4. Effect of Termination and Survival.
Upon termination or cancellation of this MSA or an affected subscription: (a) Customer’s right to access and use the Services covered by the terminated MSA or subscription will cease as of the effective date of termination; (b) Customer will remain responsible for all Fees and charges accrued or otherwise payable under Section 3.3, including any nonrefundable Fees for the then-current Subscription Term; (c) each Party will return or destroy the other Party’s Confidential Information as required under this MSA; and (d) upon Customer’s verified written request, MachineWeb Inc. will delete or de-identify the requested Service Data within ninety (90) days, except copies required by law or maintained in ordinary-course backups, which will remain protected and be deleted under MachineWeb Inc.’s normal backup-retention schedule. Before deletion, MachineWeb Inc. will make Service Data reasonably available for export in a commonly used format if Customer also requests an export. Otherwise, MachineWeb Inc. will retain Service Data in accordance with its Privacy Policy. For clarity, a downgrade or cancellation of a paid subscription that results in Customer continuing on an active free plan does not terminate this MSA, does not trigger subsections (a) or (c) above, and does not require deletion of Service Data. MachineWeb Inc. may retain and process Service Data while Customer maintains an active account as necessary to provide the Services unless Customer requests deletion under subsection (d). Termination of this MSA will not relieve either Party of obligations that accrued before the effective date of termination. Any provisions that by their nature should survive termination or expiration, including provisions relating to payment obligations, confidentiality, intellectual property, disclaimers, limitations of liability, indemnification, and dispute resolution, will survive.
License and Use of the Services
4.1. License.
Subject to the terms and conditions of this MSA and the Subscription Details, MachineWeb Inc. grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Term to permit its Authorized Users to access and use the Services for Customer’s business purposes, including publicly displaying and distributing listings through the Services and other channels authorized by Customer.
4.2. Authorized Users.
Customer may designate and provide access to the Services to its (or its corporate affiliates’) employees, independent contractors, or other agents as authorized users (each, an “Authorized User”). The first Authorized User is included in the base subscription fee. Customer may add or remove additional Authorized Users at any time, with each additional Authorized User constituting a billable seat. Fees will automatically increase or decrease based on the number of billable seats and the applicable per-seat rates included in the Subscription Details. An increase applies when an additional Authorized User is added. A decrease resulting from removal of an Authorized User takes effect at the beginning of the next billing period and does not result in a retroactive credit. Each Authorized User must use a separate account. Customer is responsible for all use of the Services through its Authorized User accounts and for compliance with this MSA by its Authorized Users, and references to Customer in this MSA will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify MachineWeb Inc. of any unauthorized access to or use of the Services of which Customer becomes aware.
4.3. Prohibited Uses.
Customer and its Authorized Users will not: (a) frame, distribute, resell, or permit access to the Services by any third party except as expressly permitted under this MSA or the Subscription Details; (b) use the Services other than in compliance with applicable federal, state, and local laws; (c) interfere with the Services or disrupt any other user’s access to the Services; (d) reverse engineer, attempt to gain unauthorized access to the Services, attempt to discover the underlying source code or structure of the Services, or otherwise copy or attempt to copy the Services, except to the extent such restriction is prohibited by applicable law; (e) knowingly transfer to the Services any content or data that is defamatory, harassing, discriminatory, infringing of third-party intellectual property rights, or otherwise unlawful; (f) transfer to the Services or otherwise use on the Services any routine, device, code, exploit, or other undisclosed feature that is designed to delete, disable, deactivate, interfere with, or otherwise harm any software, program, data, device, system, or service, or that is intended to provide unauthorized access or produce unauthorized modifications; or (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services, except through MachineWeb Inc.’s documented APIs or as otherwise expressly authorized by MachineWeb Inc.
4.4. Payment Integrations.
If Customer enables a third-party payment integration made available through the Services, Authorized Users may use the Services to initiate and view payments processed through Customer’s connected account with the applicable payment processor (the “Connected Account”). Customer authorizes MachineWeb Inc. to transmit Customer’s payment instructions and related transaction data to the payment processor and to display transaction information returned by it. The payment processor, not MachineWeb Inc., provides the payment processing services under Customer’s agreements with that provider. Customer is the merchant of record for transactions processed through its Connected Account and is solely responsible for its products and services, customers, transaction terms, taxes, receipts, refunds, disputes, chargebacks, fraud, negative balances, processing fees, and compliance with the payment processor’s terms and applicable law. MachineWeb Inc. does not receive or hold transaction funds and is not a bank, money transmitter, payment processor, or party to transactions between Customer and a payer. Payment processing services may be unavailable, suspended, or changed, and MachineWeb Inc. does not guarantee them. If information displayed in the Services conflicts with the payment processor’s records, the payment processor’s records control.
4.5. Suspension; Listings and Imports.
MachineWeb Inc. may suspend or restrict access to all or part of the Services, reject or stop any website collection or import, or reject, disable, remove, or unpublish any listing if MachineWeb Inc. reasonably believes the action is necessary to: (a) protect the Services, Customer, other users, or third parties; (b) address a compromised account, fraud, abuse, spam, unlawful or infringing activity, or a violation of this MSA; (c) comply with applicable law or a third-party platform or service-provider requirement; or (d) avoid material legal, security, operational, or reputational risk. MachineWeb Inc. may request reasonable evidence that Customer has the necessary rights or authority for a source, import, or listing. MachineWeb Inc. may take these actions immediately and without prior notice. MachineWeb Inc. will provide any notice required by applicable law. Otherwise, MachineWeb Inc. may provide notice after the action when reasonably practicable, but may withhold or limit notice if it could compromise security, fraud prevention, an investigation, legal compliance, or the protection of MachineWeb Inc., its users, or third parties. For ordinary nonpayment, MachineWeb Inc. may suspend paid features if the amount remains unpaid ten (10) days after notice, but may act immediately in cases of suspected fraud or payment abuse. Suspension does not waive accrued Fees.
Confidentiality
As used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, business, or other information of the Disclosing Party that is designated as confidential at the time of disclosure or that the receiving Party (the “Receiving Party”) reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes the terms and conditions of this MSA. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer, or otherwise make available the Disclosing Party’s Confidential Information in any form to any person or entity without the Disclosing Party’s prior written consent, except to its employees, contractors, professional advisors, and affiliates who have a need to know such Confidential Information for purposes of this MSA and who are bound by confidentiality obligations at least as protective as those set forth herein. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations or exercise its rights under this MSA, such obligations including, in the case of MachineWeb Inc., to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure, if such notice is not prohibited by applicable law; (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such information without breach of any obligation owed to the Disclosing Party.
Data Practices
6.1. Definitions.
"Service Data" means electronic data, text, messages, communications, listings, content, and other materials submitted to and stored within the Services by or on behalf of Customer in connection with Customer's use of the Services. Service Data may include Personal Data. "Personal Data" means information relating to an identified or identifiable natural person. "Usage Data" means metrics, analytics, and technical data regarding Customer's and its Authorized Users' access to and use of the Services, excluding Service Data in identifiable form. "AI Output" means content generated for Customer through AI-assisted features from Customer's instructions or Service Data. AI Output will be treated as Service Data under this MSA.
6.2. Ownership.
As between the Parties and subject to Sections 6.3.6 and 8, Customer retains all right, title, and interest it has in and to Service Data, and MachineWeb Inc. retains all right, title, and interest in and to the Services and Usage Data.
6.3. MachineWeb Inc.’s Use of Data.
MachineWeb Inc. may access, use, process, and store Service Data only as necessary to provide, maintain, support, and secure the Services; to improve the Services as permitted under Section 6.3.3; to perform its obligations under this MSA; to prevent or address service, security, support, or technical issues; and as otherwise permitted by this MSA or required by applicable law.
6.3.1. Operating the Services.
MachineWeb Inc. may process Service Data as necessary to provision accounts, authenticate users, host data, provide customer support, process MachineWeb Inc.’s subscription fees, enable Customer-selected third-party payment integrations, receive and display transaction information returned by those integrations, troubleshoot, and otherwise operate the Services. MachineWeb Inc. is not the merchant of record or payment processor for transactions between Customer and third parties.
6.3.2. Communications.
MachineWeb Inc. may send Customer and Authorized Users service-related, administrative, billing, support, security, and product communications relating to the Services. MachineWeb Inc. may also send marketing communications as permitted by applicable law, and recipients may opt out of non-transactional marketing communications by following the unsubscribe instructions in such communications or by contacting [email protected].
6.3.3. Improving the Services.
MachineWeb Inc. may use Service Data to configure, troubleshoot, support, and improve the Services for Customer, including Customer-specific features, workflows, suggestions, and results. MachineWeb Inc. may use Usage Data and aggregated and de-identified information derived from Service Data to analyze, maintain, support, and improve the Services generally and to develop new features and functionality, provided that such information does not identify Customer, any Authorized User, or any other individual. Use of Service Data for generalized model training is governed by Section 6.3.6.
6.3.4. Connecting to Third-Party Services and Publishing.
If Customer connects a third-party service to the Services or requests or authorizes MachineWeb Inc. to access, collect, or import information from a website or third-party service, MachineWeb Inc. may do so as necessary to provide the functionality requested by Customer and in accordance with Customer’s authorization. Customer represents that it has authority to provide that authorization. When Customer requests or authorizes MachineWeb Inc. to enable a website, marketplace, marketing channel, listing, lead-routing, or similar feature, Customer instructs MachineWeb Inc. to process and disclose the applicable fields as necessary to provide that feature. MachineWeb Inc. will not intentionally publish unrelated private CRM, lead, contact, ownership, purchased-from, note, or internal commercial data unless Customer selects or submits that data for publication.
6.3.5. Third-Party Service Providers.
Customer agrees that MachineWeb Inc. may disclose Service Data to its authorized third-party service providers solely to the extent reasonably necessary to provide, host, maintain, support, or secure the Services, provided that such service providers are bound by written confidentiality and data protection obligations appropriate for the services they provide.
6.3.6. AI Features.
The Services may include AI-assisted features. Any AI provider that processes identifiable Service Data will be treated as a Sub-Processor under Section 7.4. MachineWeb Inc. and its AI providers will not use Service Data to train generalized models unless Customer expressly opts in. As between the Parties and to the extent permitted by law, Customer owns AI Output, excluding Equipt Materials, and MachineWeb Inc. assigns to Customer any rights MachineWeb Inc. may have in AI Output. "Equipt Materials" means any models, algorithms, system prompts, templates, schemas, taxonomies, field structures, workflows, formatting conventions, methods, and other reusable technology or components used to generate or organize AI Output. MachineWeb Inc. retains all right, title, and interest in and to the Equipt Materials. To the extent Equipt Materials are incorporated into AI Output, MachineWeb Inc. grants Customer a perpetual, worldwide, non-exclusive, royalty-free right to use, reproduce, modify, display, distribute, and commercialize those Equipt Materials solely as incorporated into or necessary to use the AI Output. AI Output may not be unique or eligible for intellectual-property protection, and similar output may be generated for other users. Customer is responsible for reviewing AI Output before relying on or publishing it.
6.4. Service Data Safeguards.
MachineWeb Inc. will not sell Service Data. MachineWeb Inc. will maintain a written information security program with commercially reasonable administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of Service Data, including controls for access, authentication, encryption in transit and at rest, logging and monitoring, vulnerability and change management, incident response, backup and recovery, and service-provider risk management.
6.5. Security Incidents.
For purposes of this MSA, a “Security Incident” means MachineWeb Inc.’s confirmation of unauthorized access to, or unauthorized acquisition, use, disclosure, alteration, or destruction of, Customer’s Service Data in systems controlled by MachineWeb Inc. A Security Incident does not include: (a) unsuccessful login attempts, probes, scans, pings, denial-of-service attacks, or other unsuccessful or blocked attacks that do not compromise Service Data; (b) events caused by Customer, an Authorized User, or their systems or credentials, except to the extent resulting from MachineWeb Inc.’s breach of this MSA; or (c) events affecting a third-party product or service connected by Customer that do not compromise Service Data in systems controlled by MachineWeb Inc. MachineWeb Inc. will maintain an incident response program and will notify Customer without undue delay after confirming a Security Incident when required by applicable law. MachineWeb Inc. will take reasonable steps to contain and remediate the Security Incident and reasonably cooperate with Customer’s legally required response.
Privacy Practices
7.1. Privacy Policy.
MachineWeb Inc. operates the Services and, as applicable, handles Personal Data in accordance with the privacy policy available at https://www.equipt.com/privacy-policy.
7.2. Customer as Controller.
To the extent Service Data includes Personal Data processed by MachineWeb Inc. on behalf of Customer in connection with providing the Services, the Parties acknowledge and agree that Customer determines the purposes and means of processing such Personal Data, and MachineWeb Inc. processes such Personal Data on behalf of Customer.
7.3. Hosting and Processing.
Unless otherwise specifically agreed by MachineWeb Inc. in writing, Service Data may be hosted by MachineWeb Inc. or its authorized third-party service providers in the United States or other jurisdictions in which MachineWeb Inc. or its authorized third-party service providers maintain operations.
7.4. Sub-Processors.
Customer acknowledges and agrees that MachineWeb Inc. may use third-party service providers to process Service Data on behalf of Customer in connection with providing the Services (“Sub-Processors”). Such Sub-Processors may access Service Data only to provide, host, maintain, support, or secure the Services. MachineWeb Inc. will remain responsible for the acts and omissions of its Sub-Processors to the same extent it would be responsible if it were performing the relevant services directly under this MSA. MachineWeb Inc. will maintain a commercially reasonable vendor-management program for its Sub-Processors, including risk-based review and written confidentiality and data-protection obligations appropriate to the services provided.
Intellectual Property Rights
Each Party retains all right, title, and interest in and to its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and other intellectual property and proprietary rights (“Intellectual Property Rights”). Without limiting the foregoing, MachineWeb Inc. retains all right, title, and interest in and to the Services and all software, features, functionality, enhancements, improvements, modifications, inventions, technology, know-how, and other product or service developments created or developed by or for MachineWeb Inc. (collectively, “Developments”), excluding Service Data and Customer’s pre-existing Intellectual Property Rights. MachineWeb Inc. exclusively owns all Developments regardless of whether they were conceived, planned, started, completed, or implemented before or after, independently of, in response to, or with knowledge of any suggestion, request, recommendation, idea, or feedback from Customer or any other person. Customer acquires no ownership rights in any Development by providing feedback or suggesting a similar idea. To the extent Customer obtains any right, title, or interest in a Development, Customer hereby irrevocably assigns it to MachineWeb Inc. Customer grants MachineWeb Inc. a perpetual, irrevocable, worldwide, transferable, sublicensable, royalty-free license to use, modify, commercialize, incorporate into the Services, and otherwise exploit any feedback without restriction. Customer grants MachineWeb Inc. a non-exclusive, worldwide, royalty-free license during the Term to host, copy, reproduce, format, display, distribute, and otherwise use Service Data, and to sublicense those rights to its service providers and Customer-approved channels, solely as necessary to provide the Services, including creating, managing, and publishing listings.
Representations, Warranties, and Disclaimers
9.1. Authority.
Each Party represents and warrants that it has the full right, power, and authority to enter into this MSA, to perform its obligations under this MSA, and that this MSA has been duly authorized and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms. Customer further represents and warrants that it owns or has all rights and permissions necessary for MachineWeb Inc. to access the sources Customer designates and to collect, use, reproduce, format, display, distribute, and publish the applicable Service Data, including item descriptions, images, trademarks, and other listing materials, as contemplated by this MSA. This representation applies to all Service Data and materials Customer provides, submits, or authorizes MachineWeb Inc. to access, collect, or import. Customer is solely responsible for obtaining those rights and permissions. MachineWeb Inc. may rely on this representation and has no obligation to investigate or verify Customer’s ownership of or rights in any such source, Service Data, or material.
9.2. Limited Warranties.
Subject to changes permitted under Section 1.1, MachineWeb Inc. warrants that during the applicable Subscription Term: (a) the paid Services will perform in all material respects in accordance with the functionality expressly identified in Customer’s Subscription Details; and (b) MachineWeb Inc. will provide the paid Services in a professional and workmanlike manner consistent with generally accepted industry standards. Website content, demonstrations, roadmaps, forecasts, sales presentations, and other marketing materials are informational only and do not create warranties or commitments unless expressly incorporated into the Subscription Details. Customer must notify MachineWeb Inc. in writing of any alleged breach of the warranties in this Section 9 within thirty (30) days after Customer becomes aware of such breach. MachineWeb Inc.’s sole obligation, and Customer’s exclusive remedy, for any breach of the warranties in this Section 9 will be for MachineWeb Inc. to use commercially reasonable efforts to cure the non-conformity giving rise to the breach, and if MachineWeb Inc. does not cure such breach within thirty (30) days after receipt of written notice, Customer may terminate the affected subscription or this MSA in accordance with Section 3.
9.3. Disclaimers.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.2, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS TO THE FULLEST EXTENT PERMITTED BY LAW, AND MACHINEWEB INC. DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MACHINEWEB INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. MACHINEWEB INC. DOES NOT GUARANTEE ANY PARTICULAR BUSINESS RESULTS, SALES VOLUME, LEAD GENERATION, CUSTOMER ENGAGEMENT, MARKETPLACE ACTIVITY, SOFTWARE-RELATED OUTCOMES, OR OTHER RESULTS FROM CUSTOMER’S USE OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE A SOFTWARE AND MARKETPLACE PLATFORM ONLY AND THAT MACHINEWEB INC. IS NOT A PARTY TO TRANSACTIONS OR OTHER INTERACTIONS BETWEEN CUSTOMER AND ANY THIRD PARTY. MACHINEWEB INC. DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS, PRODUCTS, SERVICES, CONTENT, OR PERFORMANCE OF ANY THIRD PARTY, INCLUDING ANY PAYMENT PROCESSOR. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS LISTINGS, CONTENT, DATA, PRICING, COMMUNICATIONS, CONTRACTING, TRANSACTIONS, AND COMPLIANCE WITH APPLICABLE LAWS, RULES, AND REGULATIONS IN CONNECTION WITH ITS USE OF THE SERVICES. NO INFORMATION OR ADVICE PROVIDED BY MACHINEWEB INC. OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY SET FORTH IN THIS MSA.
Indemnification
10.1. Indemnification by MachineWeb Inc.
MachineWeb Inc. will defend Customer against any third-party claim alleging that Customer’s use of the Services, as expressly permitted under this MSA, directly infringes or misappropriates such third party’s valid U.S. patent, copyright, trademark, or trade secret (an “IP Claim”), and MachineWeb Inc. will indemnify Customer for any damages finally awarded against Customer by a court of competent jurisdiction, or agreed to in a settlement approved in writing by MachineWeb Inc., resulting from such IP Claim; provided that: (a) Customer promptly notifies MachineWeb Inc. in writing of the IP Claim; (b) MachineWeb Inc. has sole control of the defense and settlement of the IP Claim, except that MachineWeb Inc. may not settle any IP Claim in a manner that admits liability of or imposes obligations on Customer without Customer’s prior written consent, not to be unreasonably withheld, conditioned, or delayed; and (c) Customer reasonably cooperates with MachineWeb Inc., at MachineWeb Inc.’s expense.
If the Services become, or in MachineWeb Inc.’s reasonable opinion are likely to become, subject to an IP Claim, MachineWeb Inc. may, at its option and expense: (i) procure for Customer the right to continue using the affected Services; (ii) replace or modify the affected Services so they are non-infringing without materially reducing their core functionality; or (iii) if neither of the foregoing is commercially reasonable, terminate Customer’s right to use the affected Services and refund any prepaid fees actually paid for the terminated Services covering the unused portion of the then-current Subscription Term.
MachineWeb Inc. will have no liability or obligation under this Section 10.1 to the extent any IP Claim arises out of or relates to: (x) Service Data, Customer content, Customer listings, or other materials provided by or on behalf of Customer; (y) MachineWeb Inc.’s compliance with designs, instructions, specifications, or requirements provided by or on behalf of Customer; (z) modification of the Services by any person other than MachineWeb Inc. or use of the Services other than in accordance with this MSA and any written instructions provided by MachineWeb Inc.; (aa) use of the Services in combination with any software, hardware, content, data, or other materials not provided by MachineWeb Inc., if the alleged infringement would not have occurred but for such combination; or (bb) Customer’s continued use of the allegedly infringing Services after receiving notice from MachineWeb Inc. to discontinue such use.
THIS SECTION 10.1 SETS FORTH MACHINEWEB INC.’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY IP CLAIM OR ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION BY THE SERVICES.
10.2. Indemnification by Customer.
Customer will defend, indemnify, and hold harmless MachineWeb Inc. and its affiliates, and its and their respective officers, directors, employees, contractors, agents, successors, and assigns, from and against any third-party claim, demand, action, suit, or proceeding, and any related damages, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees), arising out of or relating to: (a) Customer’s or any Authorized User’s use of the Services in breach of this MSA or applicable law; (b) Service Data, Customer content, listings, postings, communications, or other materials submitted to, posted on, transmitted through, or used in connection with the Services by or on behalf of Customer; (c) any transaction, interaction, dispute, or relationship between Customer and any third party, including any buyer, seller, vendor, lead, prospect, or customer, arising from or relating to Customer’s use of the Services; or (d) Customer’s products, services, representations, pricing, promotions, or business practices; except, in each case, to the extent caused by MachineWeb Inc.’s breach of this MSA or gross negligence or willful misconduct.
MachineWeb Inc. will promptly notify Customer in writing of any claim for which it seeks indemnification under this Section 10.2; provided that any delay in notice will relieve Customer of its obligations only to the extent Customer is materially prejudiced by such delay. Customer will have sole control of the defense and settlement of such claim, except that Customer may not settle any claim in a manner that admits liability of or imposes obligations on MachineWeb Inc. without MachineWeb Inc.’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. MachineWeb Inc. will reasonably cooperate in the defense of the claim at Customer’s expense.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ANY OF ITS AFFILIATES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) LOSS OF PROFITS, REVENUE, BUSINESS, OR SALES; (B) LOSS OF GOODWILL; (C) LOSS OF DATA, OR COST OF RECREATING OR RECOVERING DATA; (D) BUSINESS INTERRUPTION; (E) COST OF COVER OR REPLACEMENT SERVICES; OR (F) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, IN EACH CASE ARISING OUT OF OR RELATED TO THIS MSA OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR: (I) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; (II) CUSTOMER’S PAYMENT OBLIGATIONS; (III) A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) AND CUSTOMER’S BREACH OF SECTION 8 (INTELLECTUAL PROPERTY RIGHTS); AND (IV) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS MSA OR THE SERVICES WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO MACHINEWEB INC. UNDER THIS MSA DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) TWELVE (12) TIMES THE THEN-CURRENT MONTHLY EQUIVALENT OF CUSTOMER'S RECURRING FEES UNDER THIS MSA.
CUSTOMER ACKNOWLEDGES THAT THE FEES CHARGED UNDER THIS MSA REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS MSA AND THAT MACHINEWEB INC. WOULD NOT ENTER INTO THIS MSA OR PROVIDE ACCESS TO THE SERVICES WITHOUT THESE LIMITATIONS ON LIABILITY.
Miscellaneous
12.1. Entire Agreement.
This MSA and the Subscription Details constitute the entire agreement between MachineWeb Inc. and Customer regarding the subject matter hereof and supersede all prior or contemporaneous agreements, proposals, and understandings, whether written or oral, relating to such subject matter.
12.2. Assignment.
Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or sale of all or substantially all of such Party’s assets, provided that the other Party is given prior notice of such assignment and any such successor agrees in writing to fulfill the assigning Party’s obligations under this MSA. Subject to the foregoing, this MSA will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
12.3. Severability.
If any provision of this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
12.4. Relationship of the Parties.
The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
12.5. Notices.
All notices under this MSA must be in writing and will be deemed given: (a) when delivered personally; (b) one (1) business day after being sent by nationally recognized overnight courier; or (c) when sent by email, provided no delivery failure notice is received. Notices to Customer may be sent to the contact mailing address or email address provided by Customer or associated with Customer’s account. Notices to MachineWeb Inc. may be sent to [email protected], or to such other notice address as MachineWeb Inc. may designate in writing from time to time. Routine operational communications and notices made available through the Services also satisfy any notice requirement under this MSA where expressly permitted in this MSA.
12.6. Governing Law, Jurisdiction, Venue.
This MSA will be governed by the laws of the State of Michigan, without reference to conflict of laws principles. Any dispute arising out of or relating to this MSA will be resolved exclusively in the state or federal courts located in Oakland County, Michigan, and each Party hereby consents to the personal jurisdiction and venue of such courts.
12.7. Export Compliance.
The Services and other software or components of the Services that MachineWeb Inc. may provide or make available to Customer are subject to U.S. export control and economic sanctions laws as administered and enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury and other applicable authorities. Customer agrees to comply with all such laws and regulations as they relate to access to and use of the Services. Customer will not access or use the Services if Customer or any Authorized Users are located in any jurisdiction in which the provision of the Services, software, or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”), and Customer will not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. Customer represents and warrants that: (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports or transacting with any U.S. person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not permit any individuals under its control to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the United States and the countries in which it and its Authorized Users are located.
12.8. Anti-Corruption.
Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of MachineWeb Inc.’s employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the foregoing restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify MachineWeb Inc.
12.9. Publicity and Marketing.
MachineWeb Inc. may use Customer’s name, logo, and trademarks solely to identify Customer as a client of MachineWeb Inc. on MachineWeb Inc.’s website and in other marketing materials, in each case in accordance with any trademark usage guidelines provided by Customer to MachineWeb Inc. MachineWeb Inc. may also share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes and to develop and promote the Services, provided that MachineWeb Inc. will not disclose such information in a manner that identifies Customer, any Authorized User, or any other individual.
12.10. Amendments; Waiver.
MachineWeb Inc. may modify this MSA by posting a revised version and providing notice of any material change by email or through the Services. Unless a change is required sooner to comply with law, address a security risk, prevent abuse, or protect the Services or third parties, a material change will become effective no earlier than thirty (30) days after notice. Non-material changes may become effective upon posting. Customer’s continued access to or use of the Services after a change becomes effective constitutes acceptance of the revised MSA. If Customer does not agree to a change, Customer must stop using the Services and may cancel its paid subscription before the change becomes effective, subject to Section 3. Changes to the Services and Fees are governed by Sections 1.1 and 2.3. Except as expressly permitted by this MSA, no purported amendment or waiver proposed by Customer will be effective unless MachineWeb Inc. agrees to it in writing. No failure or delay by either Party in exercising any right under this MSA will operate as a waiver of that right.
12.11. Force Majeure.
Neither Party will be liable for any delay or failure to perform, except for Customer's accrued payment obligations, caused by events beyond its reasonable control and occurring without its fault or negligence, including natural disasters, war, terrorism, civil unrest, governmental action, labor disputes, utility, telecommunications, or Internet failures, malicious cyberattacks despite reasonable safeguards, and outages or failures of cloud, hosting, payment, or other third-party service providers. The affected Party will use reasonable efforts to mitigate the event and resume performance.