Terms and Conditions of Appsembler

Please read these terms of use carefully before using the Services and associated Software. You may use the Services and Software only if you first accept these terms, which constitute a binding agreement between you (either an individual or an entity) and NodeRabbit, Inc. (“NodeRabbit”), the owner of Appsembler. By using the Services and Software you signify your agreement with these terms, including the Acceptable Use Policy. NodeRabbit may modify, alter or otherwise update these terms from time to time. You agree to periodically check back to this location to keep current on the Terms of Use and Acceptable Use Policy governing your use of the Services and Software. Any new or modified terms posted will take effect thirty (30) days after posting.

IF YOU DO NOT AGREE WITH THESE TERMS, OR ANY NEW OR MODIFIED TERMS, DO NOT IN ANY MANNER USE THE SERVICES OR SOFTWARE OR PARTICIPATE IN ANY OF THE FUNCTIONALITY OFFERED THEREIN.

Terms of Use

1. Introduction.

These Appsembler Terms of Use set forth the terms and conditions under which NodeRabbit will provide you with access to and use of its Appsembler Services offering, and associated Software, for the purpose of deployment and hosting for your web application as described herein.

2. Definitions.

All capitalized terms defined in this Agreement have the meanings set forth herein.

• “Acceptable Use Policy” means the Acceptable Use Policy set forth in Section 15 and any subsequent modification.
• “Affiliates” means entities that control, are controlled by, or are under common control with NodeRabbit;
• “Company User” means a person that participates in Appsembler as an employee or authorized independent contractor of a legal entity that participates in Appsembler.
• “Content” means all data, software and information including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, video, music, graphics, images, applets or servlets that you create, install, upload or transfer in connection with your use of the Services.
• “Individual User” means a person that participates in Appsembler in their individual capacity and not as a Company User or a Group User.
• “Services” means the Appsembler services offering.
• “Software” means the software and all associated documentation and other materials that may be provided to you by NodeRabbit and its Affiliates, including software that may be provided to you to facilitate access to and use of the Services.

3. Software License.

Subject to your compliance with these Terms of Use, NodeRabbit hereby grants you a revocable, non-exclusive, nontransferable license to remotely use the Software solely for the purpose of accessing and using the Services. Certain Software that forms part of the Service may be subject to additional terms and conditions which shall be presented to you at the time of access or download and which you must accept prior to accessing or downloading the applicable Software. In the event of a conflict between such additional terms and conditions and these Terms of Use, these Terms of Use shall prevail with respect to the Service and the additional terms and conditions shall prevail with respect to the Software.

4. Access to Services; Suspension and Cancellation.

Subject to your compliance with these Terms of Use and your payment of any applicable fees, NodeRabbit grants you a revocable, non-exclusive, nontransferable right to access and use the Services. If you are a U.S. Government user, you acknowledge that the Software and Services are commercial off-the-shelf products developed entirely at private expense and you acquire them only with those rights set forth in this Agreement. NodeRabbit reserves the right to modify, suspend or discontinue the Software or Services, or any part thereof, (or otherwise modify or terminate these Terms of Use or any other NodeRabbit policies) at any time without notice. NodeRabbit may, at any time, revoke your access to the Services or delete your Content for any reason in its sole discretion, including, but not limited to, if NodeRabbit believes that you are in breach of these Terms of Use or the Acceptable Use Policy. Upon any cancellation of this Agreement, your access and other rights to the Services will be cancelled and cease. In such event you must cease any further use of the Services and destroy any copies of the associated Software that may be within your possession or control. All fees paid for the Services are non-refundable unless otherwise stated.

5. Ownership of Software, Services, and Marks.

The Software and Services are licensed, not sold, solely for use under the terms of this Agreement. Except as specifically set forth herein, NodeRabbit and its Affiliates, or their licensors, retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Software and Services, including without limitation all technology, software, and copies relating to the Software and Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Software and Services are the trademarks of NodeRabbit, its Affiliates or their licensors. You are prohibited from using any Marks without the prior written permission of NodeRabbit or the owners thereof. NodeRabbit reserves all rights not expressly granted in this Agreement.

6. Payment.

You will pay NodeRabbit for use of the Services as agreed in the applicable purchase order between you and NodeRabbit, if any.

7. Ideas Submitted to NodeRabbit.

NodeRabbit is pleased to hear from you and welcomes your comments about the Software or Services. In the event that you submit ideas or suggestions for the Software or Services (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of NodeRabbit. None of the Service Comments will be subject to any obligation of confidence on the part of NodeRabbit, and NodeRabbit will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, NodeRabbit will be entitled to unrestricted use of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.

8. Restrictions.

You agree not to copy, reverse assemble, reverse compile, decompile, or otherwise translate the Software or Service, except as expressly permitted by law without possibility of contractual waiver. Unless expressly permitted in another written agreement between you and NodeRabbit or its Affiliates, you may not: (1) use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services; or (2) you may not remove, deface, cover, alter or obscure any copyright or trademark notices and/or legends or other proprietary notices associated with the Services unless expressly permitted under another written agreement between you and NodeRabbit or its Affiliates. You warrant and agree that your use of the Software or Services will be consistent with these terms and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties. The Services and associated Software are to be used by individuals and entities located within the United States only and only as permitted under these Terms of Use, Acceptable Use Policy and other written agreements between you and NodeRabbit or its Affiliates related to the Services or Software, if any. Use of Appsembler is limited to Content created by you using standard coding and programming techniques. NodeRabbit reserves the right (but is not obligated) to monitor use of the Software or Services in order to ensure that users comply with these terms and applicable law.

9. Scheduled Downtime; No Training or Technical Support.

The Services may have periods of unavailability for scheduled maintenance and non-scheduled downtimes. NodeRabbit has no obligation under the terms of this Agreement to provide support or maintenance services in connection with the Software or Services (“Technical Support”). NodeRabbit may elect to provide you with Technical Support at its sole discretion. Any enhancements, updates and other materials provided by NodeRabbit as part of any such Technical Support are considered to be part of the Services or Software, as applicable, and therefore governed by these Terms of Use.

10. Updates; Applicable Terms and Authorization for Auto Updates.

NodeRabbit may, in its sole discretion, provide, and these Terms of Use shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, “Updates”) that NodeRabbit may provide or make available generally to its customers after the date that Services commence, subject to any additional terms and conditions provided by NodeRabbit applicable to such Updates. You hereby authorize NodeRabbit to, and agree that NodeRabbit may, in accordance with NodeRabbit’s standard operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Software upon your access to the Service without further notice or need for consent. NodeRabbit has no obligation to, and nothing in this Agreement may be construed to require NodeRabbit to, create, provide, or install Updates.

11. Privacy.

You agree to allow NodeRabbit and its Affiliates to store and use the personal information you provide to us in connection with your use of the Service, including your name, phone number(s), and e-mail address(es), anywhere NodeRabbit and its Affiliates do business, solely as set forth in the Privacy Policy at http://appsembler.com/privacy-policy. NodeRabbit will not access, view or otherwise use any personal information included in your Content except as provided in paragraph 13. You confirm that you are solely responsible for any personal information that may be contained in your Content and for compliance with applicable data protection laws.

12. You Retain Ownership of Content.

NodeRabbit does not claim ownership of any Content. You hereby grant to NodeRabbit a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Content solely for the purpose of providing theServices to you. Except as set forth in this Section 12, you retain all right, title, and interest in and to the Content.

13. Limited Purpose Access to Content.

You acknowledge that the Services are provided by automated means (e.g., uploading Content via the applicable software tools) and that NodeRabbit personnel will not access or view any Content, except as necessary to perform the Services, including but not limited to the following: (i) to the extent required to maintain and trouble-shoot the Services; (ii) if during a Services interruption as necessary to restore the applicable Content at your request; (iii) if you have requested that NodeRabbit troubleshoot issues with your use of the Services; (iv) to use the information regarding the Content, solely in its aggregate form without disclosure of any confidential or personally identifiable information for statistical or performance reporting related to the provision of the Services; or (v) as deemed necessary or advisable by NodeRabbit in good faith to conform to legal requirements or comply with legal process.

14. Representations and Warranties About Content.

You represent and warrant that you: (i) are the owner or authorized licensee of any and all Content; (ii) have had adequate rights to provide NodeRabbit personnel with access to your source code through the applicable third party service; and (iii) will not publish, post, upload, record, or otherwise distribute or provide access to Content that violates the Acceptable Use Policy.

15. Acceptable Use Policy.

You agree not to use the Services to:

• upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
• harm minors in any way.
• impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity or obtaining unauthorized access to any system, network, service, or account.
• forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content uploaded to the Service.
• upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements).
• upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
• upload, post or otherwise transmit any Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
• interfere with or disrupt the NodeRabbit servers or networks connected to the NodeRabbit websites, or disobey any requirements, procedures, policies or regulations of networks connected to the NodeRabbit websites.
• resell access to or use of the NodeRabbit website or the Services, in whole or in part, to any entity or individual, without the prior written consent of NodeRabbit.

16. Compliance with Applicable Law.

Regardless of your location when you access the Services, you agree to comply with all applicable United States export control laws, including those regarding the export of data. You may not export, re-export, divert, transfer or disclose any portion of the Services or Software or technical information or materials, directly or indirectly, in violation of any applicable export law or regulation. You are also responsible for complying with all other laws, rules, and regulations that may be applicable to your use of the Services and Software.

17. Indemnity.

You agree to defend, indemnify, and hold harmless NodeRabbit and its Affiliates and their officers, directors, employees, consultants, agents and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: (i) any violation of this Agreement or applicable law by you in connection with your use of the Services or Software, or (ii) actual or alleged infringement by you, or any person accessing the Services or Software using your password or access key, of any intellectual property or privacy or other right of any third party.

18. DISCLAIMER OF WARRANTIES.

NODERABBIT REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT TO PROVIDE THE SERVICES AND SOFTWARE (INCLUDING ANY ASSOCIATED DOCUMENTATION, INFORMATION AND MATERIALS) TO YOU. SUCH SERVICES AND SOFTWARE (INCLUDING ANY ASSOCIATED DOCUMENTATION, INFORMATION AND MATERIALS) ARE PROVIDED TO YOU “AS IS” AND NODERABBIT, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

WITHOUT LIMITING THE FOREGOING, THE SERVICES AND SOFTWARE ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, NODERABBIT, ITS AFFILIATES, SUPPLIERS AND RESELLERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSE.

19. Acceptance of Risk.

NodeRabbit will make commercially reasonable efforts to deliver secure and reliable Services and Software. Notwithstanding the foregoing, you acknowledge and agree that: (i) use of the Services and Software is at your sole risk; (ii) any material and/or data downloaded or otherwise obtained through the use of the Services and Software is at your own discretion and risk; (iii) you will be solely responsible for any damages to you resulting from your use of the Services and Software; and (iv) the entire risk arising out of use of the Services and Software remains with you.

20. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES.

IN NO EVENT WILL NODERABBIT OR ITS AFFILIATES, SUPPLIERS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES OR SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF NODERABBIT, ITS AFFILIATES OR SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF NODERABBIT, ITS AFFILIATES OR SUPPLIERS OR RESELLERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OR ATTEMPTED USE OF THE SERVICES OR SOFTWARE WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES, IF ANY. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.

21. Geographic Scope.

Although you may have accessed the Services or Software outside of the United States of America, delivery of the Services or Software by NodeRabbit or its suppliers will only occur within the United States of America, and NodeRabbit’s obligations hereunder are valid only in the United States of America.

22. Governing Law; Exclusive Forum.

These Terms of Use, and the relationship between you and NodeRabbit resulting from your use or attempted use of the Services or Software, and the resolution of any dispute arising out of that relationship, shall all be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of law principles or provisions. You agree that any legal action or proceeding arising out of or related in any manner to these Terms of Use, or the relationship between you and NodeRabbit resulting from these Terms of Use or your use or attempted use of the Services or Software, shall be brought exclusively in the state or federal courts located within Suffolk County, Massachusetts. The parties expressly waive any right to a jury trial for disputes related to the subject matter of this Agreement. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to a breach of this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose.

23. Injunctive Relief.

Your use of the Services or Software in violation of these Terms of Use would cause irreparable harm to NodeRabbit, its Affiliates and suppliers for which no adequate remedy at law exists, and under such circumstances NodeRabbit, its Affiliates and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

24. Miscellaneous.

If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. NodeRabbit’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by NodeRabbit in a writing signed by a duly authorized representative of NodeRabbit. NodeRabbit reserves the right to modify these Terms of Use, and related Acceptable Use Policy at any time by providing such revised terms to you. Your continued use of the Software or Services shall constitute your acceptance to be bound by any such revised terms and conditions.

25. Entire Agreement.

The Agreement constitutes the entire agreement between NodeRabbit and you with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between NodeRabbit and you regarding them. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to NodeRabbit, will have no effect and that this Agreement is the only contract between NodeRabbit and you regarding the Software and Services and may only be amended as set forth herein.

Rev. August 6, 2013