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.
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.
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.
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.
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
© 2013 NodeRabbit, Inc. (d/b/a Appsembler) All rights reserved.