Edge80 Customer Use Agreement

March, 2013

This Edge80 Customer User Agreement (this "Agreement") contains the terms & conditions that govern your access to and use of the Edge80 Platform and is an agreement between Modapt, Inc. ("Modapt," "we," "us," or "our") and you or the entity you represent ("you").

This Agreement takes effect when you click the "Accept" button or check box presented with these terms or, if earlier, when you use the Edge80 Platform (the "Effective Date"). You represent to us that you are of legal age and are lawfully able to enter into agreements. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

1. Use of the Edge80 Platform.
1.1 Generally.
You may access and use the Edge80 Platform in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Edge80 Platform as defined in this Agreement.
1.2 Your Account.
To access the Platform, you must create a Edge80 account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with the terms of this Agreement.
1.3 Support.
If you would like support for the Edge80 Platform you may access customer support in accordance with the terms of the Edge80 Support Guidelines.
2. Changes.
2.1 Edge80 Platform.
We may change, discontinue, or deprecate any aspect or module of the Edge80 Platform (including the Edge80 Platform as a whole) or change or remove features or functionality of the Edge80 Platform from time to time. We will endeavour notify you of any material change to or discontinuation of the Edge80 Platform but are under no obligation to do so within any time period prior to the actual change taking place with the Edge80 Platform.
2.2 Service Level Agreements.
We may change, discontinue or add Service Level Agreements from time to time.
3. Edge80 Security.
Without limiting any of your obligations under this Agreement, we will use best endeavours to implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
4. Your Responsibilities.
4.1 Your Content.
You are solely responsible for the design, creation, development, content, operation, maintenance, and use of Your Content stored on the Edge80 Platform or being processed or passed through the Edge80 Platform. For example, you are solely responsible for Your Content's:
(a) technical operation;
(b) compliance with any appropriate Policies, and the law, and;
(c) proper handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violate such person's rights, including notices pursuant to the Digital Millennium Copyright Act or any other relevant legislated Act in the relevant jurisdictions under which Your Content falls.
4.2 Other Security and Backup.
You are responsible for properly configuring and using the Edge80 Platform and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving of Your Content. Edge80 account credentials are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your account details to your agents and subcontractors performing work on your behalf.
4.3 End User Violations.
You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Edge80 Platform. You are responsible for End Users' use of Your Content and the Edge80 Platform. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User's access to Your Content and the Edge80 Platform.
4.4 End User Support.
You are responsible for providing customer service (if any) to your End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
5. Fees and Payment.
5.1. Service Fees.
We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Edge80 Platform as described on the Edge80 Site using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the Edge80 Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days' advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2 Taxes.
All fees and charges payable by you are exclusive of any applicable taxes and duties. You will provide us any information we reasonably request to determine whether we are obligated to collect any taxes or duties of any kind. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
6. Temporary Suspension.
6.1 Generally.
We may suspend your or any End User's right to access or use any portion or all of the Edge80 Platform immediately upon notice to you if we determine:
(a) your or an End User's use of or registration for the Edge80 Platform (i) poses a security risk to the Edge80 Platform or any third party, (ii) may adversely impact the Edge80 Platform or the systems or Content of any other Edge80 customer, (iii) may subject us, our company officers, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) you are, or any End User is, in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension.

If we suspend your right to access or use any portion or all of the Edge80 Platform we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.

Our right to suspend your or any End User's right to access or use the Edge80 Platform is in addition to our right to terminate this Agreement.

7. Term; Termination.
7.1. Term.
The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with this Agreement.
7.2 Termination.
(a) Either Party may terminate this Agreement for any reason by providing 30 days advance notice.
(b) Either Party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
(c) We may terminate this Agreement immediately for any breach deemed unlawful or potentially harmful to us or other Edge80 Platform users.
7.3. Effect of Termination.
Generally. Upon any termination of this Agreement:
(a) all your rights under this Agreement immediately terminate;
(b) you remain responsible for all fees and charges you have incurred through to the date of termination;
(c) we will not erase any of Your Content as a result of the termination for a period of 30 days which may be retrieved or provided by us to You for a fee;
8. Proprietary Rights.
8.1 Your Content.
As between you and us, you or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Edge80 Platform to you and any End Users. We may disclose Your Content to provide the Edge80 Platform to you or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).
8.2 Rights.
You represent and warrant to us that you or your licensors own all right, title, and interest in and to Your Content and that none of Your Content, or End Users' use of Your Content, will violate the Acceptable Use Policy.
8.3 Edge80 Platform License.
As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Edge80 Platform. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the Edge80 Content solely in connection with your permitted use of the Services. Except as provided in this Agreement, you obtain no rights under this Agreement from us or our licensors to the Edge80 Platform, including any related intellectual property rights.
8.4 License Restrictions.
Neither you nor any End User may use the Edge80 Platform in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Edge80 Platform (except to the extent software included in the Edge80 Platform are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Edge80 Platform or apply any other process or procedure to derive the source code of any software included in the Edge80 Platform, (c) access or use the Edge80 Platform in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Edge80 Platform. All licenses granted to you in this Agreement are conditional on your continued compliance to this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Edge80 Platform you have used.
9. Indemnification.
9.1. General.
You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any third party claim concerning: (a) your or any End Users' use of the Edge80 Platform (including any activities under your Edge80 account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys' fees, as well as our employees' and contractors' time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
9.2. Process.
We will promptly notify you of any claim, but our failure to promptly notify you will only affect your obligations to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defence and settlement of the claim at any time.
10. Disclaimers.
THE SERVICE OFFERINGS ARE PROVIDED "AS IS." WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
11. Limitations of Liability.
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
12. Modifications to the Agreement.
We may modify this Agreement and/or any applicable Policies at any time by posting a revised version on the Edge80 Site or by otherwise notifying you by email. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Edge80 Platform after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Edge80 Site regularly for modifications to this Agreement.
13. Miscellaneous.
13.1 Confidentiality and Publicity.
You may use Edge80 Confidential information only in connection with your use of the Edge80 Platform as permitted under this Agreement. You will not disclose Edge80 Confidential Information during the Term or at any time during the 3 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Edge80 Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Edge80 Platform. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavours), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
13.2 Force Majeure.
We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labour disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.3 Independent Contractors; Non-Exclusive Rights.
We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party's products or services.
13.4 No Third Party Beneficiaries.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.5 Notice.
We may provide any notice to you under this Agreement by: (i) posting a notice on the Edge80 Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Edge80 Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
13.6 Assignment.
You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Agreement will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.7 No Waivers.
The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.9 Severability.
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.11 Jurisdiction.
The laws of the State of Victoria, Australia govern this Agreement and any dispute of any sort that might arise between you and us. You consent to exclusive jurisdiction and venue in the courts of Victoria, Australia. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party's intellectual property or other proprietary rights.
13.12 Entire Agreement.
This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates' entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.
14. Definitions.

"Acceptable Use Policy" means the you may not use, or encourage, promote, facilitate or instruct others to use, the Services or Edge80 Platform for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive.

"API" means an application program interface.

"Edge80 Confidential Information" means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Edge80 Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Edge80 Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Edge80 Confidential Information.

"Edge80 Content" means Content we or any of its affiliates make available in connection with the Services or on the Edge80 Site to allow access to and use of the Services, including Documentation; sample code; code libraries; command line tools; and other related technology. Edge80 Content does not include the Services.

"Edge80 Marks" means any trademarks, service marks, service or trade names, logos, and other designations of Edge80 and its affiliates that we may make available to you in connection with this Agreement.

"Edge80 Site" means http://www.edge80.com, http://www.modapt.com and any successor or related site designated by us.

"Content" means software (including machine images), data, text, audio, video, images or other content.

"Documentation" means the developer guides, getting started guides, user guides, quick reference guides, and other technical and usage manuals and specifications for the Services.

"End User" means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Edge80 Platform under your account. The term "End User" does not include individuals or entities when they are accessing or using the Services or any Content under their own Edge80 account, rather than your account.

"Service" means each of the web services made available by us or our affiliates, including those web services described in the Service Terms.

"Edge80 Platform" means the Services (including associated APIs), the Edge80 Content, the Edge80 Marks, the Edge80 Site, and any other product or service provided by us under this Agreement. Edge80 Platform do not include Third Party Content.

"Term" means the term of this Agreement.

"Third Party Content" means Content made available to you by any third party on the Edge80 Site or in conjunction with the Services.

"Your Content" means Content you or any End User (a) run via the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account or otherwise transfer, process, use or store in connection with your account.

"Your Submissions" means Content that you post or otherwise submit to developer forums, sample code repositories, public data repositories, or similar community-focused areas of the Edge80 Site or the Services.

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