Kynetx Network Services Terms of Service

1. Your Agreement With Kynetx

1.1. Your use of the Kynetx Network Service, including but not limited to Kynetx AppBuilder, Kynetx Rules Engine, and Kynetx Analytics (the "Service") is governed by this agreement (the "Terms"). "Kynetx" means Kynetx Inc., located at 3098 Executive Parkway Suite 275, Lehi, UT 84043 United States, and its subsidiaries or affiliates involved in providing the Service.

1.2. In order to use the Service, you must first agree to the Terms. You can agree to the Terms by actually using the Service. You understand and agree that Kynetx will treat your use of the Service as acceptance of the Terms from that point onwards.

1.3. You may not use the Service if you are a person barred from receiving the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service. You affirm that you are over the age of 13, as the Service is not intended for children under 13.

2. Your Account and Use of the Service

2.1. You must provide accurate and complete registration information any time you register to use the Service. You are responsible for the security of your passwords and for any use of your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify Kynetx immediately.

2.2. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You agree not to use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons.

2.3. You agree not to (a) access (or attempt to access) the administrative interface of the Service by any means other than through the interface that is provided by Kynetx in connection with the Service, unless you have been specifically allowed to do so in a separate agreement with Kynetx, or (b) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are connected to the Service).

3. Service Policies and Privacy>br>

3.1. You agree to comply with the Kynetx Network Service available at www.kynetx.com, http://code.kynetx.com (or such URL as Kynetx may provide) (the "Terms") which is incorporated herein by this reference and which may be updated from time to time.>br>

3.2. The Service shall be subject to the privacy policy for the Service available at http://www.kynetx.com/privacy.html (or such URL as Kynetx may provide), which references and incorporates Kynetx's privacy policy available at http://www.kynetx.com/privacy.html .You agree to the use of your data in accordance with Kynetx's privacy policies.

3.3. You agree that you will protect the privacy and legal rights of the users of your application. You must provide legally adequate privacy notice and protection for those users. To do so, at a minimum, you must incorporate the privacy terms available at http://www.kynetx.com/privacy.html into the privacy policy for your application. If the users provide you with user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your application and to Kynetx.>br>

3.4. If the user provides you with Kynetx Account information, you may only use that information to access the user's Kynetx Account when, and for the limited purposes for which, the user has given you permission to do so.

4. Fees for Use of the Service

4.1. Subject to the Terms, the Service is provided to you without charge up to certain quotas. These quotas will be known as the "Fee Threshold" and can be found below.

4.2. Once billing begins, a bill will be issued to your online account for all charges accrued in excess of the Fee Threshold. For use of the Service in excess of any portion of the Fee Threshold, you shall be responsible for all charges up to the amount set in your online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, you shall pay all charges in accordance with the payment terms in the Kynetx FAQ at http://code.kynetx.com/support/faqs/. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees Kynetx incurs collecting late amounts. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect your credit card issuer rights). Charges are solely based on Kynetx's measurements of your use of the Service, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of Kynetx and only in the form of credit for the Service.

Nothing in these Terms obligates Kynetx to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Kynetx may be shared by Kynetx with companies who work on Kynetx's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Kynetx and servicing your account. Kynetx may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Kynetx shall not be liable for any use or disclosure of such information by such third parties. Kynetx reserves the right to discontinue the provision of the Service to you for any late payments.

4.3. Kynetx may change its fees and payment policies for the Service with ninety (90) days prior notice. However, Kynetx may change the Fee Threshold limits at its discretion. Changes to the fees or payment policies will be posted in the Kynetx FAQ at http://code.kynetx.com/support/faqs/ or other URL/s that Kynetx may provide from time to time. Any outstanding balance becomes immediately due and payable upon termination of the Terms for any reason.

4.4. You may not develop multiple Applications to simulate or act as a single Application or otherwise access the Service in a manner intended to avoid incurring fees.

5. Content in the Service and Take Down Obligations

5.1. You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may have access as part of, or through your use of, the Service are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content." The term Content shall specifically exclude the web application that you create using the Service and any source code written by you to be used with the Service (collectively, the "Application").

Kynetx prohibits the use of any unauthorized or unlawful use of copyrighted works or other IP violations in any form.

Kynetx also prohibits the use of the Service to create and launch apps that initiate malicious or deceptive content on any domain, site or page that is not wholly owned by the user.

5.2. Kynetx reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Service. You agree to immediately take down any Content that violates the Kynetx Terms, pursuant to a takedown request from Kynetx. In the event that you elect not to comply with a request from Kynetx to take down certain Content, Kynetx reserves the right to directly take down such Content or to disable the Application.

5.3. In the event that you become aware of any violation of the Terms by an end user of the Application, you shall immediately terminate such end user's account on your Application. Kynetx reserves the right to terminate end user Kynetx accounts or disable the Application in response to a violation or suspected violation of the Terms.

5.4. You agree that you are solely responsible for (and that Kynetx has no responsibility to you or to any third party for) the Application or any Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which Kynetx may suffer) by doing so.

5.5. You agree that Kynetx has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up your Application and any Content.

6. Proprietary Rights

6.1. You acknowledge and agree that Kynetx (or Kynetx's licensors) owns all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

6.2. Unless you have agreed otherwise in writing with Kynetx, nothing in the Terms gives you a right to use any of Kynetx's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features, unless otherwise specified by Kynetx.

6.3. Except as provided in Section 8, Kynetx acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content or the Application that you create, submit, post, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Kynetx, you agree that you are responsible for protecting and enforcing those rights and that Kynetx has no obligation to do so on your behalf.

7. License from Kynetx and Restrictions

7.1. Kynetx gives you a personal, worldwide, non-assignable and non-exclusive license to use the software provided to you by Kynetx as part of the Service as provided to you by Kynetx (referred to as the "Kynetx Network Service" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Kynetx, in the manner permitted by the Terms.

7.2. You may not (and you may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Kynetx Network Service or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Kynetx, in writing (e.g., through an open source software license); (b) attempt to disable or circumvent any security mechanisms used by the Service or any Application; (c) use the Service to create an Application that performs a malicious activity, including but not limited to spamming users, harvesting usernames and passwords, performing unauthorized scans of machines or ports, changing Web pages with the intent to deceive or defraud, disabling another Service application, blocking the KNS-enabled actions of another user, or creating DoS attacks; or (d) upload or otherwise process any malicious content to or through the Service.

7.3. Unless Kynetx has given you specific written permission to do so (e.g., through an open source software license), you may not assign (or grant a sub-license of) your rights to use the Kynetx Network Service, grant a security interest in or over your rights to use the Kynetx Network Service, or otherwise transfer any part of your rights to use the Software.

7.4. Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Kynetx for the use of the components of the Service released under an open source license.

8. License from You

8.1. Kynetx claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying the Content on or through the Service you give Kynetx a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Content for the sole purpose of enabling Kynetx to provide you with the Service in accordance with its privacy policy. Furthermore, by creating an Application through use of the Service, you give Kynetx a worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such Application for the sole purpose of enabling Kynetx to provide you with the Service in accordance with its privacy policy. You also indemnify Kynetx from any and all related infringement and/or liability related to your app and the content it effects.

8.2. You agree that Kynetx, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of advertising or publicizing your use of the Service.

9. Software Updates

9.1. The Software which you use may automatically download and install updates from time to time from Kynetx or its partners. These updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit Kynetx, or its partners, to deliver these to you) as part of your use of the Service.

10 Modification and Termination of the Service

10.1. Kynetx is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Service which Kynetx provides may change from time to time without prior notice to you, subject to the terms in Sections 4.3 and 10.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service; examples of changes to the form and nature of the Service include without limitation changes to fee and payment policies, security patches, added functionality, and other enhancements.

10.2. If Kynetx in its discretion chooses to cease providing the current version of the Service whether through discontinuation of the Service or by upgrading the Service to a newer version, the current version of the Service will be deprecated and become the Deprecated Version of the Service. Kynetx will issue an announcement if the current version of the Service will be deprecated. For a period of 90 days after an announcement (the “Deprecation Period”), Kynetx will use commercially reasonable efforts to continue to operate the Deprecated Version of the Service and to respond to problems with the Deprecated Version of the Service deemed by Kynetx in its discretion to be critical. During the Deprecation Period, no new features will be added to the Deprecated Version of the Service.

Kynetx reserves the right in its discretion to cease providing all or any part of the Service immediately without any notice for the reasons as follows, but not limited to:

(A) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or

(B) Kynetx is required to do so by law (for example, due to a change to the law governing the provision of the Service); or

(C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires Kynetx to change the way Kynetx provides the data or services through the Service; or

(D) providing the Service could create a substantial economic burden as determined by Kynetx in its reasonable good faith judgment; or

(E) providing the Service could create a security risk or material technical burden as determined by Kynetx in its reasonable good faith judgment.

At any time prior to discontinuing the current version of the Service or upgrading to a new version of the Service, Kynetx may, in its discretion as part of its continuing innovation to provide the best possible experience for its users, label certain features or functionality of the Service as "experimental." This Section 10.2 of the Terms will not apply to any features or functionality labeled as "experimental."

10.3. You may discontinue your use of the Service at any time.

10.4. If Kynetx suspends or terminates your use of the Service with cause (or you voluntarily discontinue your use of the Service), you will have access to, and the ability to export, your Content for a period of ninety (30) days following such suspension or termination. Fees will continue to be assessed for usage of the Service in excess of any portion of the Fee Threshold during the 30 day period. Notwithstanding the foregoing, the rights set forth in this Section 10.4 are subject to your payment of any outstanding fees due upon and after termination for your use of the Service.

10.5. Upon any termination of the Service under Sections 4 or 10 , these Terms will also terminate, but Sections 6.1, 11, 12, 13, and 17 shall continue to be effective after these Terms are terminated.

11. EXCLUSION OF WARRANTIES

11.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 11 AND 12, SHALL EXCLUDE OR LIMIT KYNETX'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

11.2. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."

11.3. KYNETX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KYNETX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.

12. LIMITATION OF LIABILITY

12.1. SUBJECT TO SECTION 11.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT KYNETX, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

12.2. THE LIMITATIONS ON KYNETX'S LIABILITY TO YOU IN PARAGRAPH 12.1 ABOVE SHALL APPLY WHETHER OR NOT KYNETX HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

13. Indeminification

13.1. You agree to hold harmless and indemnify Kynetx, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, (collectively "Kynetx and Partners") from and against any third party claim arising from or in any way related to (a) your breach of the Terms, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content or your Application, 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, Kynetx will provide you with written notice of such claim, suit or action.

14. Policies Regarding Copyright and Trademarks

14.1. You agree to set up a process to respond to notices of alleged infringement that comply with the United States' Digital Millennium Copyright Act ("DMCA notices"). It is Kynetx's policy to respond to DMCA notices or other applicable copyright laws and to terminate the accounts of repeat infringers. We reserve the right to take down content in your Application or, if necessary, the Application itself upon receipt of a valid DMCA notice. For more information, please go to http://code.kynetx.com/applications/dmca-policydmca-policy/.

15. Other Content

15.1. The Services may include hyperlinks to other web sites or content or resources or email content. Kynetx may have no control over any web sites or resources which are provided by companies or persons other than Kynetx.

15.2. You acknowledge and agree that Kynetx is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3. You acknowledge and agree that Kynetx is not liable for any loss or damage which may be incurred by you or users of your Application as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

16. Changes to the Terms

16.1. Kynetx may make changes to the Terms from time to time. When these changes are made, Kynetx will make a new copy of the Terms available at http://www.kynetx.com/legal/KNS_TOS.html.

16.2. You understand and agree that if you use the Service after the date on which the Terms have changed, Kynetx will treat your use as acceptance of the updated Terms.

17. General Legal Terms

17.1. The Terms constitute the whole legal agreement between you and Kynetx and govern your use of the Service (but excluding any services which Kynetx may provide to you under a separate written agreement), and completely replace any prior agreements between you and Kynetx in relation to the Service.

17.2. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.

17.3. If Kynetx provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict.

17.4. You agree that Kynetx may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service.

17.5. You agree that if Kynetx does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Kynetx has the benefit of under any applicable law), this will not be taken to be a formal waiver of Kynetx's rights and that those rights or remedies will still be available to Kynetx.

17.6. Kynetx shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

17.7. The Terms, and your relationship with Kynetx under the Terms, shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions. You and Kynetx agree to submit to the exclusive jurisdiction of the courts located within the county of Utah, Utah to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Kynetx shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

18. Quotas

18.1 A Kynetx Network Service application can consume resources up to certain maximums, or quotas. With quotas, Kynetx ensures that your application won't exceed your budgeted resources, and that other applications running on the network won't impact the performance of your app.

18.2 Quotas are resource maximums set by Kynetx to ensure the integrity of the system. These resources describe the boundaries of the architecture, and all applications are expected to run within the same limits. They ensure that another app that is consuming too many resources will not affect the performance of your app.

18. 3 Current Quota (as of May 2009) = 2000 calls to the Kynetx Network Service per day.

19. How Resources are Replenished

19.1 Kynetx AppBuilder records how much of each resource an application uses in a calendar day, and considers the resource depleted when this amount reaches the app's quota for the resource. A calendar day is a period of 24 hours beginning at midnight, Mountain Standard Time. KAB resets all resource measurements at the beginning of each day, except for Stored Data which always represents the amount of datastore storage in use.

20. Billing

20.1 Currently Kynetx does not bill for apps. However, we may bill for apps in the future based on tiered quotas. Kynetx will not bill those that have created apps during the “non-billing” time line. Users will be given 30 days notice before billing begins.