Cuscal Developer Hub Terms and Conditions

1. DEFINITIONS
1.1. "Resulting Data" Resulting Data is information, data or other content that is obtained or otherwise results from processing content or tracking data that has been uploaded by User to this Service. The Resulting Data is compiled and provided in the dashboard to facilitate use of the Service. User will not have access to User Content or Resulting Data through the Service following contract expiration or termination. 

2. SERVICES AND SUPPORT
2.1. Subject to these Terms, Cuscal will provide User with access to the Services through the internet. The Services are subject to modification from time to time at Cuscal's or its service provider's sole discretion, for any purpose deemed appropriate by Cuscal or its service provider. 
2.2. Cuscal will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Cuscal reserves the right to suspend User's access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event User is in breach of these Terms.

3. RESTRICTIONS AND RESPONSIBILITIES
3.1. User will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with these Terms and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation).
3.2. User will cooperate with Cuscal in connection with the use of the Software or Services by making available such information as may be reasonably required, and taking such other actions as Cuscal may reasonably request. User will also cooperate with Cuscal in establishing a password or other procedures for verifying that only User has access to any functions of the Services.
3.3. User hereby agrees to indemnify and hold harmless Cuscal and Cuscal's service provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User's use of Services. Although Cuscal or its service provider each have no obligation to monitor the content provided by User or User's use of the Services, Cuscal or its service provider may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4. User will be responsible for maintaining the security of User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account with or without User¿s knowledge or consent.
3.5. User acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"). Cuscal and its service provider are not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. User is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Cuscal and its service provider do not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between User and a third party provider is solely between User and such third party provider and is governed by such third party's terms and conditions.

4. CONFIDENTIALITY
4.1. User (the "Receiving Party") understands that Cuscal (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business or that of their Supplier (hereinafter referred to as "Proprietary Information" of the Disclosing Party).
4.2. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of these Services, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in these Terms will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Cuscal and its service provider may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services'  Performance.
4.3. User acknowledges that Cuscal does not wish to receive any Proprietary Information from User that is not necessary for Cuscal to perform its obligations under these Terms, and, unless the parties specifically agree otherwise, Cuscal may reasonably presume that any unrelated information received from User is not confidential or Proprietary Information.
4.4. Both Parties will have the right to disclose the existence but not these Terms, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.

5. INTELLECTUAL PROPERTY RIGHTS
5.1. Except as expressly set forth herein, as between User and Cuscal, Cuscal alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service, Resulting Data or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any third party relating to the Service and/or the Software, which are hereby assigned to Cuscal. User will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under these Terms. User is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only. These Terms are not a sale and does not convey to User any rights of ownership in or related to the Service or Software, or any intellectual property rights.
5.2. Cuscal will obtain and process documentation content/data provided by or on behalf of User ("Content") only to perform its obligations under these Terms. User and its licensors shall (and User hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If Cuscal receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), Cuscal may (but is not required to) suspend activity hereunder with respect to that Content and User will indemnify Cuscal and it service provider from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. 
5.3. Cuscal shall hold User harmless from liability to unaffiliated third parties resulting from infringement by the Service of any copyright or misappropriation of any trade secret, provided Cuscal is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Cuscal will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Cuscal, (ii) resulting in whole or in part in accordance from User specifications, (iii) that are modified after delivery by Cuscal, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where User's use of is not strictly in accordance with these Terms and all related documentation. User will indemnify Cuscal from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Cuscal's indemnity obligation by the preceding sentence.

6. TERMINATION
6.1. Without prejudice to any other rights, Cuscal may terminate the Services, if User fails to comply with any of the limitations or other requirements described herein.   
6.2 For so long as these Services are provider by Cuscal to User at no cost, Cuscal or its service provider may terminate the Services at any time at its sole discretion. 
6.3. Upon any termination of the Services, User must immediately cease use of the Services and any software.
6.4. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

7. SOFTWARE SECURITY
Cuscal represents and warrants that it will not knowingly include, in any Cuscal software released to the public and provided to User hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Cuscal fails to comply with the warranty in this Section, User may promptly notify Cuscal in writing of any such noncompliance. Cuscal will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide User with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, User may cease using the Software and the Services as its sole and exclusive remedy for such noncompliance.

8. WARRANTY DISCLAIMER
THE SERVICES AND CUSCAL PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. CUSCAL (AND ITS AGENTS, SERVICE PROVIDERS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY
IN NO EVENT WILL CUSCAL (OR ANY OF ITS AGENTS, SERVICE PROVIDERS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THESE TERMS OR OTHERWISE ARISING FROM THESE TERMS, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF CUSCAL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF CUSCAL, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, FIVE HUNDRED DOLLARS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, User may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively "Controlled Subject Matter"), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing User acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Cuscal are "commercial items" and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.

11. MISCELLANEOUS
If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are not assignable, transferable or sublicensable by User except with Cuscal¿s prior written consent. Cuscal may transfer and assign any of its rights and obligations under these Terms with written notice to User. Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms and User does not have any authority of any kind to bind Cuscal in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Cuscal will not be liable for any loss resulting from a cause over which it does not have direct control. These Terms will be governed by the laws of New South Wales. without regard to its conflict of laws provisions. The federal and state courts sitting in Sydney, New South Wales. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of these Terms, provided that either party may seek injunctive relief in any court of competent jurisdiction.