Terms and Conditions

• 1.1 Access Protocols means the passwords, access codes, technical specifications, connectivity standards, or procedures that allow Customer or Authorized Users to access MachGen Products & Services.
• 1.2 Authorized User means Customer's employees, agents, and independent contractors authorized to access MachGen Products & Services.
• 1.3 MachGen Products & Services means MachGen's platform and offerings for accessing, deploying, and operating machine learning models with optimized inference, including the MachGen Serverless and MachGen Platform offerings, as identified in any Order.
• 1.4 Customer Content means any content and information provided by Customer, Authorized Users, or End Users for use with the Services, including Customer Models, Customer Model Output, source code, files, software, data, text, and media.
• 1.5 Customer Model means Customer's machine learning model(s) deployed through or accessed via MachGen Products & Services.
• 1.6 Customer Model Output means the output of any query received by the Customer Model through MachGen Products & Services.
• 1.7 Documentation means the technical materials provided by MachGen describing the use and operation of MachGen Products & Services.
• 1.8 DPA means the Data Processing Addendum referenced in Annex II.
• 1.9 Effective Date means the date You accept this Agreement.
• 1.10 End User means any third party accessing or using the Customer Model deployed through MachGen Products & Services.
• 1.11 Error means a reproducible failure of MachGen Products & Services to substantially conform to the Documentation.
• 1.12 Hosting Party means the party responsible for hosting a particular MachGen Product & Service.
• 1.13 Intellectual Property Rights means all rights now known or hereafter recognized associated with works of authorship, trademark and service mark rights, trade secret rights, patents, industrial property rights, layout design rights, design rights, and registrations and applications thereof in any jurisdiction.
• 1.14 Order means an online order page or document by which Customer orders Services from MachGen.
• 1.15 Professional Services means the professional services provided by MachGen as described in any Order or statement of work.
• 1.16 Services means any services provided by MachGen under this Agreement, including MachGen Products & Services and Professional Services.
• 1.17 Supported Environment means the minimum hardware, software, and connectivity configuration required for use of MachGen Products & Services, as specified in the Documentation.

2.1 Access. Subject to payment of applicable Fees, MachGen will provide Customer with access to MachGen Products & Services. On or shortly after the Effective Date, MachGen will provide the necessary passwords, security protocols, network links, and Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access and will promptly notify MachGen of any unauthorized access of which Customer becomes aware.

2.2 Support Services. MachGen will use commercially reasonable efforts to provide support and keep the Services operational in accordance with its standard policies and any applicable service level agreement. Customer's sole remedy for breach of any service level agreement is as specified therein.

2.3 Hosting. The Hosting Party will provide hosting of the applicable MachGen Products & Services at its own expense. MachGen has no responsibility for the telecommunications or computer network hardware required by Customer to access the Services from the Internet.

2.4 Security Measures. MachGen will implement and maintain technical and organizational measures to protect Customer Content against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access, as described in Annex I. MachGen may update its Security Measures if the updated measures do not materially decrease the overall level of protection. Where Customer is the Hosting Party, Customer is solely responsible for implementing the measures and egress necessary for MachGen to provide the Services.

2.5 Personal Data. To the extent MachGen Processes Customer Personal Data as part of the Services, the parties will comply with the obligations of the DPA, which is incorporated herein by reference.

3.1 MachGen License Grant. Subject to the terms of this Agreement, MachGen grants Customer a non-exclusive, non-transferable license during the Term to: (a) access and use MachGen Products & Services for Customer's internal business purposes and make Customer Models available to End Users as contemplated by the Documentation and Order limitations; (b) use and reproduce a reasonable number of copies of the Documentation to support Customer's use of the Services; and (c) if Customer is the Hosting Party, host the applicable MachGen Products & Services in Customer's Supported Environment in accordance with the Documentation. Authorized Users may access and use features as contemplated by this Agreement.

3.2 Restrictions. Customer shall not, and shall not permit Authorized Users, End Users, or any other party to: (a) allow any third party to access the Services or Documentation except as expressly allowed herein; (b) modify, adapt, alter, or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow use of the Services by any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive the source code or underlying ideas, algorithms, structure, or organization of the Services (except to the extent such restriction is prohibited by applicable law); (e) interfere with the operation of the Services or any hardware or network used to provide the Services; (f) modify, copy, or create derivative works of the Services; (g) access the Services in order to build a similar or competitive product; (h) access the Services through any unapproved interface; or (i) use the Services in a manner that exceeds the permitted scope or is inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges that the Services are not licensed for use in time-critical or mission-critical functions. Customer shall not remove, alter, or obscure any proprietary notices of MachGen or its licensors.

3.3 Ownership. MachGen Products & Services, the Documentation, and all worldwide Intellectual Property Rights therein are the exclusive property of MachGen. All rights not expressly granted are reserved by MachGen and its suppliers. No express or implied license or right is granted to Customer with respect to the Services, the Documentation, or any part thereof. Customer acknowledges that MachGen may compile deidentified, anonymized, and/or aggregated statistical data (“Statistical Data”) from usage and performance derived from Customer, Authorized Users, and End Users' use of the Services. MachGen owns all Statistical Data and may use it for any lawful business purpose, including improving the Services and other MachGen offerings.

3.4 Open Source Software. Certain software components made available by MachGen may be provided under “open source” or “free software” licenses that are not subject to Sections 3.1 or 10. Each such item is licensed under its accompanying end-user terms. Nothing herein limits Customer's rights under, or grants Customer rights that supersede, the terms of any applicable open source software license.

3.5 Feedback. Customer grants MachGen a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate any feedback, suggestions, enhancement requests, or recommendations relating to the Services. MachGen will not identify Customer as the source of any such feedback.

4.1 Fees. In consideration for the access rights and Services, Customer will pay the Fees to MachGen. Except as otherwise provided in an Order, all Fees are billed at the end of each month, due within thirty (30) days of the invoice date, and payable via ACH or wire transfer. For Orders paid by credit card exceeding $5,000, credit card processing fees may apply. MachGen will only reimburse expenses expressly provided for in an Order or statement of work or approved in advance in writing by Customer with the required documentation. MachGen reserves the right to suspend access and discontinue the Services if Fees are more than thirty (30) days overdue until full payment is received. Customer shall maintain complete, accurate, and up-to-date billing and contact information.

4.2 Taxes. Fees exclude all applicable sales, use, value-added, and other taxes, duties, tariffs, assessments, export and import fees, and similar charges. Customer is responsible for all such taxes (other than MachGen's income taxes), fees, duties, charges, and any related penalties and interest arising from the payment of Fees, the provision of the Services, or the license of the Services. Payments to MachGen will be made free and clear of any withholding taxes; Customer is solely responsible for any such taxes and will provide official receipts or evidence of payment as MachGen reasonably requests.

4.3 Interest. Unpaid amounts bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

5.1 License; Ownership. Customer is solely responsible for the accuracy, quality, and legality of Customer Content. Customer shall obtain all third-party licenses, consents, and permissions necessary for MachGen's use of Customer Content. Customer grants MachGen a non-exclusive, worldwide, royalty-free, fully paid license during the Term to: (a) host, store, transfer, display, perform, reproduce, modify for display formatting, use, and distribute Customer Content as necessary to provide the Services; and (b) use Customer's marks and logos (“Customer Marks”) as required to provide the Services. Customer is the exclusive owner of Customer Content and all worldwide Intellectual Property Rights therein.

5.2 Customer Warranty. Customer represents and warrants that Customer Content will not: (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, or unlawful; (d) contain any viruses, worms, or other malicious code intended to damage MachGen's systems or data; or (e) violate any third-party rights. MachGen is not obligated to back up Customer Content; Customer is solely responsible for creating its own backups at its cost. If Customer processes third-party personal data through the Services, Customer is responsible for providing legally adequate privacy notices and obtaining all necessary consents for the processing, storage, use, and transfer of such data. Use of the Services in violation of these representations and warranties constitutes unauthorized and improper use.

5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users access Customer Content and are responsible for all changes to and/or deletions of Customer Content and for the security of all passwords and other Access Protocols. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining and maintaining any required Supported Environment.

Where the parties agree to MachGen's provision of Professional Services, the details will be set forth in an Order or mutually executed statement of work (“SOW”). The Order or SOW will include: (a) a description of the Professional Services; (b) a performance schedule; and (c) the applicable Fees. Each Order or SOW incorporates the terms and conditions of this Agreement. If any conflict arises between an Order or SOW and this Agreement, this Agreement governs, except where the Order or SOW expressly supersedes specific language of this Agreement.

7.1 Limited Warranty. MachGen represents and warrants that it will provide the Services and perform its obligations in a professional and workmanlike manner substantially consistent with general industry standards. If Customer notifies MachGen in writing of any breach within thirty (30) days following the defective performance, specifying the breach in reasonable detail, MachGen will, as Customer's sole and exclusive remedy, re-perform the defective Services or, at MachGen's option, refund the pre-paid Fees for the impacted Services. MachGen further warrants that MachGen Products & Services will operate free from Errors during the Term, provided that such warranty does not apply to failures arising from: (a) use not in accordance with this Agreement or the Documentation; (b) use in combination with other products, equipment, software, or data not supplied by MachGen; (c) modification by persons other than MachGen or its authorized agents; or (d) Customer Content.

7.2 Disclaimer. The limited warranty in Section 7.1 is for the benefit of Customer only. Except as expressly provided in Section 7, and to the maximum extent permitted by applicable law, the Services and Documentation are provided “AS IS,” and MachGen makes no (and disclaims all) other warranties, representations, or conditions, whether written, oral, express, implied, or statutory, including any implied warranties of satisfactory quality, course of dealing, trade usage or practice, system integration, data accuracy, merchantability, title, noninfringement, or fitness for a particular purpose. MachGen does not warrant that all errors can be corrected, or that operation of the Services will be uninterrupted or error-free.

8.1 Types of Damages. To the fullest extent permitted by applicable law, MachGen will not be liable to Customer for any incidental, indirect, special, consequential, or punitive damages, regardless of the nature of the claim, including lost profits, costs of delay, delivery failure, business interruption, lost or damaged data or documentation costs, or third-party liabilities arising from any source, even if MachGen was advised of the possibility of such damages.

8.2 Amount of Damages. To the fullest extent permitted by applicable law, MachGen's maximum aggregate liability arising out of or in connection with this Agreement will not exceed the Fees paid by Customer during the twelve (12) months preceding the act, omission, or occurrence giving rise to the liability. MachGen's suppliers have no liability under this Agreement.

8.3 Basis of the Bargain. The parties agree that the liability limitations in Section 8 survive and continue to apply despite any failure of consideration or failure of an exclusive remedy. The parties acknowledge that the prices were set and this Agreement was entered into in reliance on these liability limitations, which form an essential basis of the bargain.

9.1 Confidential Information. “Confidential Information” means any nonpublic information of a party, disclosed orally, in writing, or in digital media, that is identified as “confidential” at the time of disclosure or that the receiving party knows or should know is the disclosing party's confidential or proprietary information. The Services, the Documentation, and all enhancements and improvements thereto are considered MachGen Confidential Information.

9.2 Protection of Confidential Information. The receiving party will not use or disclose to third parties any of the disclosing party's Confidential Information except as expressly permitted herein. The receiving party will limit access to Confidential Information to Authorized Users (in the case of Customer) or to employees with a need to know, subject to confidentiality obligations no less restrictive than those herein. The receiving party will protect the disclosing party's Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.

9.3 Exceptions. The confidentiality obligations in Section 9.2 do not apply to information that: (a) is generally available to the public through no fault of the receiving party; (b) is lawfully provided to the receiving party by a third party free of any confidentiality duties; (c) was already known to the receiving party at the time of disclosure free of any confidentiality duties; or (d) the receiving party can demonstrate by clear and convincing evidence was independently developed by its employees and contractors with no access to the Confidential Information. The receiving party may disclose Confidential Information where necessary to enforce its rights under this Agreement or as required by law or court order, provided that (to the extent legally permissible) the receiving party promptly notifies the disclosing party in writing and cooperates if the disclosing party seeks a protective order.

10.1 By MachGen. MachGen will defend at its expense any suit against Customer and pay any settlement approved by MachGen or damages awarded insofar as the suit is based on a third-party claim that MachGen Products & Services infringe such third party's patents, copyrights, or trade secret rights under applicable U.S. laws. If any portion of the Services becomes or is likely to become the subject of an infringement claim, MachGen may, at its option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services that do not materially impair functionality; (c) modify the Services to be non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term, with Customer immediately ceasing all use of the Services and Documentation. MachGen has no obligation regarding infringement claims based upon: (i) use of the Services not in accordance with this Agreement or the Documentation; (ii) use of the Services combined with products, equipment, software, or data not supplied by MachGen; (iii) modification of the Services by persons other than MachGen or its authorized agents; or (iv) Customer Content (collectively, the “Exclusions”). This Section states Customer's sole and exclusive remedy and MachGen's entire liability for infringement claims.

10.2 By Customer. Customer will defend at its expense any suit against MachGen and pay any settlement approved by Customer or damages awarded insofar as the suit is based on a claim arising from or relating to: (a) an Exclusion; (b) Customer Marks; or (c) Customer's breach or alleged breach of Section 5.2.

10.3 Procedure. The indemnifying party's obligations are expressly conditioned upon: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party having sole control of the defense or settlement; and (c) the indemnified party cooperating to facilitate settlement or defense.

11.1 Term. This Agreement begins on the Effective Date and continues in full force as long as any Order remains in effect, unless earlier terminated as provided herein (the “Term”). Unless otherwise stated in an applicable Order, (a) the Order term begins on the Effective Date and continues for one (1) year, unless earlier terminated; and (b) the Order automatically renews for additional one (1)-year terms unless either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current term.

11.2 Termination for Breach. Either party may immediately terminate this Agreement upon notice if the other party materially breaches this Agreement and the breach remains uncured more than thirty (30) days after receipt of written notice of breach.

11.3 Effect of Termination. Upon termination or expiration for any reason: (a) all licenses granted hereunder immediately terminate and, if Customer is the Hosting Party, Customer will cease hosting MachGen Products & Services under this Agreement; (b) promptly after the effective date, each party will comply with the Confidential Information return obligations in Section 9; and (c) any amounts owed to MachGen will immediately become due and payable. Sections 1, 3.2, 3.3, 3.4, 3.5, 4, 5.2, 7.2, 8, 9, 10, 11.3, and 12 survive expiration or termination.

11.4 Data Extraction. For twenty (20) days after the end of the Term, MachGen will make Customer Content available to Customer through the Services on a limited basis solely for retrieval, unless Customer instructs deletion before the period expires. After such period, MachGen will discontinue all use of Customer Content and destroy all copies in its possession.

12.1 Governing Law and Venue. This Agreement is governed by and interpreted under the laws of the State of Delaware, without regard to conflicts-of-law principles. Customer expressly consents to the personal jurisdiction and venue of the state and federal courts in New Castle County, Delaware for any lawsuit filed by MachGen arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

12.2 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from MachGen or any products utilizing such data, in violation of U.S. export laws or regulations.

12.3 Severability. If any provision of this Agreement is held invalid or unenforceable, the other provisions remain enforceable and the invalid or unenforceable provision is deemed modified to be valid and enforceable to the maximum extent permitted by law.

12.4 Waiver. Any waiver or failure to enforce a provision on one occasion is not deemed a waiver of any other provision or of such provision on any other occasion.

12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement or its rights and obligations without the prior written consent of the other party; any attempted assignment in violation of this is null and void; provided that either party may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all assets without the other party's consent. This Agreement is binding upon the parties and their respective successors and permitted assigns.

12.6 Compliance with Law. Customer will at all times comply with all international and domestic applicable laws, ordinances, regulations, and statutes applicable to its license and use of the Services and Documentation.

12.7 Force Majeure. Any delay in performance by either party (except for payment of Fees) is not a breach of this Agreement if caused by labor disputes, material shortages, fire, earthquake, flood, or any other event beyond such party's control, provided such party uses reasonable efforts to notify the other party and resume performance as soon as possible.

12.8 Independent Contractors. Customer's relationship to MachGen is that of an independent contractor; neither party is the other party's agent or partner. Customer has no authority to act on MachGen's behalf and will not represent to third parties that such authority exists.

12.9 Notices. All notices required or permitted under this Agreement must be delivered in writing. If to MachGen, by emailing legal@machgen.ai or mailing to MachGen, 5201 Great America Parkway, Suite 320, Santa Clara, CA 95054. If to Customer, by emailing the email address then associated with Customer's account. Each party may change its email address or receipt address by giving notice of such change to the other party.

12.10 Counterparts. This Agreement may be executed in one or more counterparts, each deemed an original, all taken together and deemed one instrument.

12.11 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties regarding the subject matter hereof and supersedes and merges all prior discussions. No modification, amendment, or waiver of any rights under this Agreement is effective unless in writing and signed by authorized signatories of Customer and MachGen.

MachGen implements the following:

1. Organizational management and staff responsible for the development, implementation, and maintenance of MachGen's information security program.
2. Audit and risk assessment procedures for periodic review and risk assessment.
3. Data security controls, including logical segregation, restricted (role-based) access and monitoring, and commercially available industry-standard encryption for personal data transmitted over public networks, wirelessly, at rest, or on portable or removable media.
4. Logical access controls managing access to electronic data and system functionality based on authority levels and job functions on a need-to-know and least-privilege basis, with unique IDs and passwords, periodic access review, and timely revocation upon employment termination or role change.
5. Password controls managing password strength, expiration, and usage, prohibiting password sharing.
6. System audit or event logging and related monitoring procedures that proactively record user access and system activity.
7. Operational procedures and controls for configuration, monitoring, and maintenance of technology and information systems, including secure disposal that renders information or data undecipherable or unrecoverable.
8. Change management procedures and tracking mechanisms for testing, approving, and monitoring material changes to MachGen's technology and information assets.
9. Incident management procedures allowing MachGen to investigate, respond to, mitigate, and notify events related to its technology and information assets.
10. Network security controls providing enterprise firewalls, layered DMZ architectures, intrusion detection, and traffic and event correlation procedures.
11. Vulnerability assessment, patch management, and threat protection technologies, and scheduled monitoring procedures to identify, assess, mitigate, and protect against identified security threats, viruses, and malicious code.
12. Business resiliency, continuity, and disaster recovery procedures to maintain service and/or recover from foreseeable emergencies or disasters.

MachGen maintains a Data Processing Addendum (“DPA”) governing the processing of Customer Personal Data under this Agreement, including obligations relating to security, sub-processing, data subject requests, personal data breach notification, return and deletion of Customer Personal Data, audit rights, and (where applicable) GDPR-compliant standard contractual clauses for restricted transfers and CCPA service-provider terms.

The DPA is available upon written request to privacy@machgen.ai and, when executed, is incorporated into and forms part of this Agreement.