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Device on Cloud, Inc. (“Nativetap”) Terms and Conditions

TERMS OF USE:

BY CHECKING THE BOX NEXT TO THE STATEMENT “I ACCEPT THE NATIVETAP TERMS OF SERVICE” AND CLICKING ON THE “SIGN UP NOW” BUTTON DISPLAYED AS PART OF THE SIGN UP PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF NATIVETAP’S ONLINE SERVICES (AS DEFINED BELOW, “SERVICES”). 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 SELECT THE “SIGN UP ” BUTTON AND MAY NOT USE THE SERVICES.

Your registration for, or use of, the Services shall be deemed to be your agreement to abide by this Agreement including any materials available on the NATIVETAP website incorporated by reference herein, including but not limited to NATIVETAP’s registration and order process, privacy and security policies.

NATIVETAP’s privacy policies may be viewed at https://nativetap.io/privacy. NATIVETAP reserves the right to modify its privacy policies in its reasonable discretion from time to time. Note that because the Services are a hosted, online application, NATIVETAP occasionally may need to notify all users of the Services of important announcements regarding the operation of the Services.

1. Definitions

As used in this Agreement and in any Service Request now or hereafter associated herewith:

“Agreement” means these online terms of use, any online Order Form, and any materials available on the NATIVETAP website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by NATIVETAP from time to time in its sole discretion;

“Authorized User(s)” mean you and anyone you authorize to use the Services when you supply user identifications to NATIVETAP;

“Effective Date” means the date this Agreement is accepted by selecting the “Sign me up” and proceeding with a registration option presented on the screen after this Agreement is displayed;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

“Service Request(s)” means the form evidencing the initial subscription for the Services and any subsequent service requests submitted online specifying, among other things, the service offering selected, the number of additional licenses, if any, the amount of additional storage, the length of data retention, if any, and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Service Request to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Service Request, the terms of this Agreement shall prevail);

“NATIVETAP” means Device on Cloud, Inc., a Delaware corporation, having its principal place of business at 275 Battery Street, Suite 2600, San Francisco, California 94111;

“Services” mean a testing and debugging platform hosted by NATIVETAP which allows you to connect a remote device or devices to your developer workstation, upload you .apk file on a remote devices and enables you debug your mobile app in real time, including all of NATIVETAP’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by NATIVETAP in providing the Services and any audio and visual information, tools, documents, software, products and services contained or made available to you in the course of using the Services.

“User Data” means any data, information or material provided or submitted by you to the Services in the course of using the Services;

2. Services and Restrictions

Subject to the terms and conditions of this Agreement, NATIVETAP grants to you a non-exclusive, non-transferable, right to use the Services up the maximum numbers of project numbers, team members and device hours permitted in the selected service plan including any enhanced functionality or additional services and features (eg., Tapcast, video, screenshot, apksupload, crashlytics plugin, etc.) included in such selected service plan in your Service Request (referred to as “Service Plan”) as you may update from time to time by executing a new Service Request. All rights not expressly granted to you are reserved by NATIVETAP. You acknowledge that NATIVETAP’s provision of the Services is dependent in part on each Authorized User’s compliance with the terms of this Agreement.

You shall not directly or indirectly, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Services in any way ; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or any software, documentation or data related to the Services, (iii) modify or make derivative works based upon the Services; (iv) copy or create Internet “links” to the Services or “frame” or “mirror” any of the Services; or (v) access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts, including but not limited to uploading any of your data onto the Services. You shall: (i) use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws. You shall not when using the Services (i) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (iii) attempt to gain unauthorized access to the Services or its related systems or networks.

NATIVETAP is not responsible to you for unauthorized access to your data or the unauthorized use of the Services. You are responsible for the use of the Services by any person to whom you have given access to the Services, and any person who gains access to your data, even if you did not authorize such use.

You shall be responsible for obtaining and maintaining any devices, equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, mobile devices, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services. You shall also be responsible for maintaining the security of the Equipment, your User account, Users passwords and files, and for all uses of your User account or the Equipment with or without your knowledge or consent. NATIVETAP reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

You must cooperate with NATIVETAP’s reasonable investigation of Services’ outages, security problems, and any suspected breach of the Agreement. You shall: (i) notify NATIVETAP immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to NATIVETAP immediately and use reasonable efforts to stop immediately any copying or distribution of the Services that is known or suspected by you or your Users; and (iii) not impersonate another NATIVETAP user or provide false identity information to gain access to or use the Services.

You shall indemnify and hold NATIVETAP, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the User Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Authorized User (s) of this Agreement, provided in any such case that NATIVETAP (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release NATIVETAP of all liability and such settlement does not affect NATIVETAP’s business or Services); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

4. Your Account Information and Data

NATIVETAP does not own any data, information, records, material, including without limitation to records of all testing sessions, apps and apk files that you submit to the Services in the course of using the Services (“User Data”). You, not, NATIVETAP, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and NATIVETAP shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. Notwithstanding the foregoing, you understand that in order to provide you the Services, we need to upload the User Data to the devices remotely connected to our Nativetap debugging and testing platform, and to store copies of such User Data and use them in order to further improve Nativetap’s service. By uploading such User Data you are providing NATIVETAP a worldwide, royalty free, perpetual license to store, use, process and analyze such User Data using any form or method we may select that are deemed appropriate and necessary for delivering the Services, such as to disassemble the application binaries (not source code) provided by you.

From time to time, we may contract a third party vendor to store User Data as part of our Services; you hereby acknowledge and authorize us to have such contracted third party vendor to store your User Data. We will rely on such third party vendor’s security measures to safeguard your User Data; provided, we will use commercially reasonable effort to implement and adopt applicable industrial standard security practices to secure any User Data and keep them from unauthorized access so long as such User Data are within our direct control.

5. NATIVETAP’s Intellectual Property Ownership

NATIVETAP alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Services and any underlying technology or content within the Services, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, any technology used by the Services, or the Intellectual Property Rights owned by NATIVETAP. The NATIVETAP name, the NATIVETAP logo, and the product names associated with the Services are trademarks of NATIVETAP or third parties, and no right or license is granted to use them.

6. Charges and Payment of Fees

When applicable, you shall pay NATIVETAP the then applicable fees published on our Website at https://nativetap.io/pricing for the Services covered by the respective Service Plan subscribed in your most recent Service Request (the “Fees”). You are responsible for keeping your billing and other account information up to date. You must pay when due the Fees for the Services stated in the Service Request or other agreement between us. The initial charges will be equal to the monthly charge of the Service Plan you selected in your most recent Service Request. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You must provide NATIVETAP with valid credit card as a condition to signing up for the Services. You may upgrade or downgrade your Service Plan any time during the Term of this Agreement; provided your will receive either a pro-rated charge or refund, depending on the cost of your new Service Plan you subscribe to. NATIVETAP reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail.

7. Billing and Renewal

NATIVETAP charges and collects in advance for use of the Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on NATIVETAP’s net income. You agree to provide NATIVETAP with complete and accurate billing and contact information. This information includes your legal name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, NATIVETAP reserves the right to terminate your access to the Services in addition to any other legal remedies. Unless NATIVETAP in its discretion determines otherwise, you will be billed in U.S. dollars and subject to U.S. payment terms.

8. Non-Payment and Suspension

In addition to any other rights granted to NATIVETAP herein, NATIVETAP reserves the right to suspend or terminate this Agreement and your access to the Services if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Services during any period of suspension. If you or NATIVETAP initiates termination of this Agreement, you will be obligated to pay the balance due on your account. You agree that NATIVETAP may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. NATIVETAP reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Services. You agree and acknowledge that NATIVETAP has no obligation to retain User Data and that such User Data may be irretrievably deleted if your account is 30 days or more delinquent.

9. Termination

This Agreement commences on the Effective Date and shall continue month to month or year to to year. You can terminate this Agreement by selecting “Cancel Subscription”. Your subscription will end at the next billing date. Nativetap may terminate this Agreement by notifying you in writing (email is sufficient) at least five (5) business days prior to the end of the month. You agree and acknowledge that NATIVETAP has no obligation to retain the User Data, and may delete such User Data, within 5 days after termination.

10. Termination for Cause

NATIVETAP, in its sole discretion, may terminate your password, account or use of the Services if you breach or otherwise fail to comply with this Agreement upon notice to you (email is sufficient). In addition, NATIVETAP may terminate a free account at any time in its sole discretion. NATIVETAP may allow you thirty days to cure your failure to pay any outstanding fees prior to terminating this Agreement. You agree and acknowledge that NATIVETAP has no obligation to retain the User Data, and may delete such User Data within 30 days after the termination.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Services and that your billing information is correct.

12. Disclaimer of Warranties

NATIVETAP AND ITS LICENSORS AND ITS VENDORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. NATIVETAP, ITS LICENSORS AND VENDORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NATIVETAP , ITS LICENSORS AND VENDORS. NATIVETAP’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NATIVETAP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

14. Export Control

You acknowledge and agree that the NATIVETAP’s Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo, 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 By using the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of an embargoed country or designated national. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. If you use the Services from outside the United States of America you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Services contrary to United States law is prohibited.

15. Notice

NATIVETAP may give notice by means of a general notice on the Services, electronic mail to your e-mail address on record in NATIVETAP’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in NATIVETAP’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to NATIVETAP (such notice shall be deemed given when received by NATIVETAP) at any time by any of the following: letter sent by confirmed facsimile to NATIVETAP at the following fax number: (415) 393-9887; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to NATIVETAP at the following address: Nativetap, Inc., 275 Battery Street, Suite 2600, San Francisco, CA 94111, addressed to the attention of: Nina Wieczorek, CEO; or email us at contact@nativetap.io

16. General

NATIVETAP reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement on the Services. You are responsible for regularly reviewing this Agreement. Continued use of the Services after any such changes shall constitute your consent to such changes. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with NATIVETAP’s prior written consent. NATIVETAP may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, 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 this Agreement and you do not have any authority of any kind to bind NATIVETAP in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement 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; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

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