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Tier 3 Iron Foundry Terms of Service

Thank you for using Iron Foundry. By using the Iron Foundry service and any related software (collectively the "Service"), you ("You") accept and agree to be bound by the following terms and conditions (the "Agreement"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

The Agreement is effective between (a) You and (b) Tier 3, Inc., a Delaware corporation ("Iron Foundry"). It is effective as of the date You accept this Agreement.

Iron Foundry may update or change this Agreement from time to time and recommends that you review the Agreement on a regular basis. You understand and agree that your continued use of the Service after the Agreement has changed constitutes your acceptance of the Agreement as revised.

This Agreement was last updated on July 20, 2011.

1. Use of the Service

a. User Accounts. The Service is accessed via individual user accounts ("User Account"). User Accounts are for designated users and cannot be shared or used by more than one user. You are responsible for all activity that takes place on your account. You agree that You are responsible for keeping your password confidential and secure, and further understand that You are solely responsible and liable for any activities that occur under your account and for any harm that you may cause to the Service.

b. Limitations of Service. You understand and acknowledge that the Service is being provided in "Beta" form, and is made available on an "AS IS" and "AS AVAILABLE" basis for the purpose of providing Iron Foundry with feedback on the quality and usability of the Service. The Service may contain errors or inaccuracies that could cause failures, including but not limited to data corruption or loss of data from the Service and from peripherals (including, without limitation, servers and computers) connected thereto. In addition, Iron Foundry is not obligated to provide any maintenance, technical or other support for the Service. You are responsible for backing up, to your own computer or other device, any data that You store or access via the Service.

You further understand and acknowledge that Iron Foundry has not made the Service generally available, that Iron Foundry has not promised or guaranteed to You that the Service will be announced or made available to anyone in the future, that Iron Foundry has no express or implied obligation to You to announce or introduce the Service, and that Iron Foundry may elect not introduce a generally available version of the Service. Accordingly, You acknowledge that any research or development that You perform regarding the Service or any product associated with the Service is done entirely at Your own risk.

c. Changing the Service. Iron Foundry reserves the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to You. You agree that Iron Foundry shall not be liable to you or any third party for any modification or cessation of the Service. You acknowledge that Iron Foundry has no express or implied obligation to provide, or continue to provide, the Service, or any part thereof, now or in the future. YOU SHOULD FREQUENTLY BACK UP DATA THAT YOU ENTER INTO THE SERVICE AND APPLICATIONS THAT YOU CREATE USING THE SERVICE. IF IRON FOUNDRY CEASES PROVIDING THE SERVICE, SUCH DATA AND APPLICATIONS MAY BECOME PERMANENTLY LOST.

d. Prohibited Uses of Service. Please note the following prohibitions apply to the Service, as provided to you by Tier 3. Nothing in this Section prevents you from creating your own service with different terms and conditions. You may not access the Service for the purpose of monitoring its availability, performance and functionality, or for any other benchmarking or competitive purposes. Your use of the Service must be in accordance with the documentation. You agree that You are responsible for your own conduct and content while using the Service and for any consequences thereof. You agree to use the Service only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines. By way of example, and not as a limitation, You agree that when using the Service, You will not, and will not permit users or other third parties to:

(i) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;

(ii) upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful content;

(iii) upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless You (or the user posting the content) are the owner of the rights or have the permission of the owner to post such content;

(iv) upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by applicable law, this Agreement, or any applicable policies or guidelines.

(v) distribute any file posted by another that You know, or reasonably should know, cannot be legally distributed in such manner;

(vi) impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;

(vii) restrict or inhibit any other user from using and enjoying the Service;

(viii) use the Service for any illegal or unauthorized purpose;

(ix) remove any copyright, trademark or other proprietary rights notices contained in or on the Service;

(x) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

(xi) create user accounts by automated means or under false or fraudulent pretenses;

(xii) promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or

(xiii) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

If You are located outside of the United States, You further agree to comply with Your own local laws regarding online conduct and acceptable content.

e. Revocation. Iron Foundry reserves the right to revoke a user generated name or account anytime the name or account is being used to abuse the Service, confuse or mislead users or is generally offensive.

f. Open Source Software. The underlying open source code for the Service is made available to you under a combination of open source licenses, which can be found in the LICENSE file.

2. Proprietary Rights

a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Iron Foundry reserves all right, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

b. Your Applications and Code. If You create online applications or program code using the Service, You authorize Iron Foundry to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Iron Foundry to provide the Service in accordance with this Agreement. Subject to the above, Iron Foundry acquires no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

c. Restrictions. You shall not (i) permit any third party to access the Service or (ii) frame or mirror any third party content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes.

d. Ownership of Your Data. As between Iron Foundry and You, You exclusively own all right, title and interest in and to all of Your data. You will be solely responsible for the accuracy, quality, integrity and legality of Your data and of the means by which You acquired Your data,

e. Suggestions. As part of using the Service, you agree to submit comments, suggestions and other feedback regarding your use of the Service. You agree that Iron Foundry will be free to use any feedback you provide for any purpose and that Iron Foundry shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, and exploit without restriction, any suggestions, enhancement requests, recommendations or other feedback provided by You.

3. Privacy Policy

Information shared with Iron Foundry is subject to the Tier 3 privacy policy available at http://www.Tier3.com. The contact information you provide may be used to send you updates or other information about our or our partners? services and products. To opt out of receiving future marketing communications regarding Iron Foundry, please follow the opt out instructions in the Tier 3 privacy policy or in the email that you received.

4. Indemnity

You agree to hold harmless and indemnify Iron Foundry, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against any third party claim arising from or in any way related to your use of the Service or violation of this Agreement, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Iron Foundry will provide You with written notice of such claim, suit or action.

5. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a. IRON FOUNDRY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IRON FOUNDRY MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

b. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM IRON FOUNDRY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

6. Limitation of Liability

YOU UNDERSTAND AND AGREE THAT IRON FOUNDRY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF IRON FOUNDRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

7. Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 5 AND 6 MAY NOT APPLY TO YOU..

8. Term and Termination

a. Term and Termination. The term of this Agreement shall commence on the date upon which You agree to the Agreement and shall continue in force thereafter until Iron Foundry announces the termination of the Beta. Additionally, either party may terminate this Agreement at any time for any reason or no reason by providing the other party written notice thereof.

b. Survival. In the event of any termination or expiration of the Agreement for any reason, Sections 2, 4, 5, 6, 7, 8, and 9 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.

9. General Information

a. Choice of Law and Forum. The Agreement and the relationship between You and Iron Foundry shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Iron Foundry agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.

b. Waiver and Severability of Terms. The failure of Iron Foundry to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.

c. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, You agree that (1) You are not, and are not acting on behalf of North Korea, Sudan or Syria, or any other country to which the United States has prohibited export transactions; (2) You are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) You will not use the Service for, and will not permit the Service to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.

d. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Cloud Foundry and You.

e. Limitations Period. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Cloud Foundry services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

f. Headings. The section headings in the Agreement are for convenience only and have no legal or contractual effect.

g. Trademark License. You hereby grant to Iron Foundry a nontransferable, nonexclusive license during the Term of the Agreement to use your trademark to advertise that You are using the Service.

h. Entire Agreement. This Agreement and the documents referenced herein constitute the entire agreement between You and Iron Foundry and govern your use of the Service, superseding any prior agreements between You and Iron Foundry. You also may be subject to additional terms and conditions that may apply when You use or purchase certain other Iron Foundry services, affiliate services, third-party content or third-party software. There are no third-party beneficiaries to this Agreement.