These Machine Translation Terms (these “Additional Terms”) shall apply if Customer chooses to obtain Machine Translation Services in an Order or Statement of Work (both referred to as an “Order” in these Additional Terms). Machine Translation Services are provided pursuant to the Agreement, the applicable Order, and the Microsoft Azure Marketplace Terms available at: https://azure.microsoft.com/en-us/support/legal/marketplace-terms/ (the “Microsoft Service Agreement”) entered into by and between MotionPoint and Microsoft Corporation. Customer agrees to abide by all provisions of the Microsoft Service Agreement to the extent applicable to Customer’s use or receipt of the Machine Translation Services and not engage in any acts or omissions that would cause MotionPoint to be in violation of the Microsoft Service Agreement or applicable law. Should any provisions of the Agreement or the applicable Order conflict with the Microsoft Service Agreement, as applicable to either MotionPoint or Customer, in connection with Machine Translation Services, then the terms of the Microsoft Service Agreement shall prevail. Without limiting the generality of the foregoing, Customer agrees as follows:
I. Attribution and Use of Names. Customer will display the Microsoft marks identified on the http://www.aka.ms/TranslatorAttributionGuide on the same page as the results presented by the Machine Translation Services for the purpose of identifying that such results are “Translations by Microsoft Translator” (or any successor brand provided by Microsoft during the Term). Customer’s use of the Microsoft marks will be in accordance with Microsoft’s then current trademark usage guidelines as provided in http://www.aka.ms/TranslatorAttributionGuide. For use of Machine Translation Services in an interface other than a website, Customer will display the Microsoft mark in the “About” box in a manner that will be easily accessible to the user. Except as set forth in this section, Customer shall not use either Microsoft’s or MotionPoint’s name(s) or trademark(s), including in any advertisement, press release or publicity referencing this Agreement or the Machine Translation Services, without prior, written approval of Microsoft or MotionPoint, respectively.
II. Content. MotionPoint does not claim ownership of the content Customer or Customer’s customers submit on Machine Translated Areas. Such content remains Customer’s content. Neither Microsoft nor MotionPoint control, verify, or endorse such content. Customer hereby grants to Microsoft, MotionPoint and each of their affiliates the right to keep a copy of and use such content for the exclusive purpose of improving the API, the Microsoft Translator Services, and the Machine Translation Services, and Customer acknowledges that MotionPoint may share such content and related information with Microsoft. MotionPoint will not otherwise disclose such content and information to a nonaffiliated third party, except in presenting the results from the Microsoft Translator Services and Machine Translation Services on Machine Translated Areas and where required by law. Improving the API, the Microsoft Translator Services and the Machine Translation Services will include Microsoft and MotionPoint using Customer’s and Customer’s customer’s submissions to derive statistical and quantitative information about the text being translated, in order to help build and apply appropriate models to optimize the translation. Customer acknowledges and agrees that MotionPoint and Customer may be required by Microsoft to provide certain data related to Machine Translation Services to Microsoft.
III. Modifications and Cancellation. Customer agrees and acknowledges that Microsoft may change or delete features of the Microsoft Translator Service and API at any time and for any reason, and that Microsoft may cancel or suspend use of the Microsoft Translator Service at any time without notice and for any reason. As a result, the Machine Translation Services may be changed, canceled or suspended at any time, without notice and for any reason or no reason. Upon suspension, cancellation or termination of Machine Translation Services, all content created through Machine Translation Services may be permanently deleted or irretrievable from Microsoft’s and MotionPoint’s servers, and neither Microsoft nor MotionPoint have any obligation to return such content to Customer.
IV. Warranty Disclaimers. MotionPoint makes no representation, warranty or promise on behalf of Microsoft with respect to the API or its performance. Customer shall not make any, representation, warranty or promise on behalf of Microsoft or MotionPoint with respect to the API, the Machine Translation Services or their performance. To the maximum extent permitted by applicable law, the API, the Microsoft Translator Services, the Machine Translation Services and any additional information and materials provided or made available by Microsoft or MotionPoint in connection with the Machine Translation Services or the Microsoft Service Agreement (collectively, “Machine Translation”) are provided as is, with all faults, and as available. Both Microsoft and MotionPoint do not guarantee the suitability, reliability, availability, accuracy or timeliness of information available from Machine Translation; or that Machine Translation will be uninterrupted, secure, or error free; or that data loss will not occur. Neither Microsoft nor MotionPoint give any express warranties, guarantees, or conditions, and disclaim all warranties with regards to Machine Translation. Customer acknowledges that computer and telecommunications systems are not fault-free and occasional periods of downtime will occur.
V. Limitation on Liability. Customer can recover from Microsoft and MotionPoint for all successful claims only direct damages up to U.S. $5.00. Customer cannot recover any other damages, including consequential, special, indirect, incidental or punitive damages and lost profits. The limitation in this Section V applies to anything related to Machine Translation, including, for example: the Microsoft Translator Services, the API, the Machine Translation Services, loss of data, Customer’s content, third party content (including code), third party programs, or third party conduct, viruses or other disabling features that affect your access to or use of Machine Translation, incompatibility with other services, software, hardware or applications, delays or failures Customer may have in connection with Machine Translation, and claims for breach of contract, breach of warranty, guarantee, or condition, misrepresentation, strict liability, negligence or other tort. It also applies even if this remedy does not fully compensate Customer for any losses, fails of its essential purpose or Microsoft or MotionPoint know or should have known about the possibility of the damages. To the extent permitted by law, any claim related to Machine Translation must be brought within one year. The one-year period begins on the date when the claim first accrues. Any claim that is not filed within that time is permanently barred. This paragraph applies to Customer and Customer’s successors. It also applies to Microsoft and MotionPoint and each of their successors and assigns.
VI. Indemnity. Customer will indemnify and hold Microsoft and MotionPoint and each of their affiliates, agents and employees harmless from all loss, liability and expense (including reasonable attorneys’ fees) from any claims, proceedings or suits due to either Customer’s breach of this Agreement or the Machine Translated Areas that use the API or Machine Translation Services. Customer shall be solely responsible for defending all such claims but Microsoft and MotionPoint may participate with counsel each selects. If Microsoft or MotionPoint participate with their own counsel, Customer will reimburse Microsoft and MotionPoint for all reasonable costs and fees incurred. Customer will not agree to any settlement imposing any obligation or liability on Microsoft or MotionPoint without Microsoft’s or MotionPoint’s respective prior, written consent.
VII. Agreement. Customer acknowledges that Microsoft may update the Microsoft Service Agreement at any time by posting new terms and conditions. As a result, MotionPoint may update and amend terms applicable to Machine Translation at any time and from time to time, by providing written notice to Customer.
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