Nirvanix, Inc. and/or its affiliates provide Nirvanix Web Services and Applications (as defined below) to you subject to the following terms and conditions. You must be 18 years of age, or the applicable age of consent under local law, or older to utilize Nirvanix Web Services and Applications. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NIRVANIX. CAREFULLY READ ALL TERMS AND CONDITIONS IN THIS AGREEMENT BEFORE CHECKING THE "ACCEPT" BOX ON THE NIRVANIX WEB SERVICES ACCOUNT CREATION PAGE, BY ENTERING "YES" OR CHECKING "ACCEPT" DURING AN APPLICATION INSTALLATION PROCESS. BY ACCEPTING THIS DOCUMENT AND COMPLETING YOUR ACCOUNT CREATION OR APPLICATION INSTALLATION, YOU ARE REPRESENTING THAT (1) YOU ARE AT LEAST 18 YEARS OLD, OR THE APPLICABLE AGE OF CONSENT UNDER LOCAL LAW, AND (2) HAVE THE AUTHORITY TO BIND YOURSELF OR YOUR COMPANY TO THIS AGREEMENT. If you do not agree, you may decline this Agreement by not checking the "ACCEPT" box on the Nirvanix Web Services Account Creation Page, or by not entering "Yes" or agreeing to accept this document during the installation and configuration steps of an application installation, and discontinuing the account creation process or the application installation and/or configuration processes. If you do not agree to these terms and conditions, you will not be able to complete the account creation process or access Nirvanix Web Services. In such case as you already have an account, you must cancel said account, delete any Nirvanix Applications or intellectual property, and notify Nirvanix of your cancellation.

"Agreement" means these terms and conditions together with all applicable policies, procedures and/or guidelines, including without limitation the privacy notice, that appear on the Nirvanix.com website (www.Nirvanix.com) from time to time, which are hereby incorporated by this reference into, and made part of, this Agreement.

"Nirvanix", “we” or “us” means Nirvanix, Inc. "Nirvanix Web Services and Applications" is a set of services and applications that enables the integration of online storage and media services into third party applications ("Applications"). The term "Nirvanix Properties" includes any data, images, text, and content, APIs, tools or other information or materials provided by Nirvanix through or in Nirvanix Web Services and Applications including any beta or test applications, services, and features. This Agreement applies to all Nirvanix Properties or customer support packages that you sign up for (each a "Service") each as further described on the applicable Service Detail Page. Nirvanix Web Services can be accessed through both REST and SOAP. Both of these methods return "structured responses." All information you receive from Nirvanix, and your use of it, is subject to the terms and conditions of this Agreement.

"Content" means any content, data, software, applications, materials, technology or other information that you or your customers’ store (whether owned or provided by you, your customers or any third party) using the Nirvanix Properties or otherwise make available to Nirvanix or to third parties in connection with your use of such Service and Applications.

1. PARTICIPATION
   
   You may use the Nirvanix Properties in accordance with the terms and conditions described in this Agreement.
   
   General
   1. You may interface with the Nirvanix Properties using any of the reference applications located in the Nirvanix Developer’s Center.
   2. You may write an application that interfaces with Nirvanix Properties (your “Application”).
   3. You must comply with the terms of the Nirvanix Web Services API Developer Guide, as posted by us and updated by us from time to time on the Nirvanix Website, including, without limitation, any limitations described in the Nirvanix Web Services API Developer Guide.
   4. You may use Nirvanix Properties to store, process and retrieve Content. You acknowledge that neither Nirvanix nor its affiliates are responsible in any manner, and you are solely responsible, for Content. While we may track information regarding your usage of Nirvanix Properties, we will not disclose, sell or license Content, except as may be necessary to comply with subpoenas, court orders, or other legal requirements.
   5. You are responsible for complying, and you represent, warrant and covenant that you will at all times comply, with all applicable laws or regulations of any applicable jurisdiction. You may not, and represent, warrant and covenant that you will not, nor will you allow or enable any third party to, use Nirvanix Properties or your Application: (i) in a manner that infringes, violates or misappropriates any third party’s intellectual property rights; (ii) to engage in spamming or other impermissible advertising or marketing activities, or in any manner that otherwise violates anti-spamming laws and regulations; (iii) in a way that is otherwise illegal or promotes illegal activities, including without limitation in any manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age. You further represent and warrant that Content is not obscene, libelous, defamatory or otherwise malicious or harmful to any person or entity.
   6. You may not, nor will you allow or enable any third party to, interfere or attempt to interfere in any manner with the functionality or proper working of Nirvanix Properties.
   7. You agree to provide such additional information and/or other materials related to your Application as reasonably requested by us to verify your compliance with this Agreement.
   8. If your Application is determined (for any reason or no reason at all, in our sole discretion) to be unsuitable for Nirvanix Web Services, we may suspend your access to Nirvanix Properties or terminate this Agreement at any time, without notice.
   
   
2. SERVICE FEES
   
   Nirvanix currently charges for Services at the rates and on the terms set forth on the Service Detail Page for such Service. In consideration of your use of the Services, you agree to pay the amounts set forth on the applicable Service Detail Page. Any and all fees payable by you pursuant to this Agreement are expressed exclusive of sales, use, value-added (“VAT”) or import taxes, customs duties or similar taxes that may be assessed by any state and/or jurisdiction (collectively, "Taxes"). In addition to such fees payable, you will pay any Taxes that Nirvanix is legally required to charge on the applicable fees under this Agreement. If requested to do so by Nirvanix, or as otherwise required by applicable law, you will supply your VAT identification number to Nirvanix. We may change the fees or fee structure for any Service, as reflected in the applicable Service Detail Page, and you will not have any obligation to continue such Service.
   
   
3. OWNERSHIP
   
   The Nirvanix Properties are protected by copyright, trademark, patent, trade secret, and other laws. In no event may you reverse engineer or copy Nirvanix Properties unless Nirvanix provides express permission to do so. In the case of breach of stated reverse engineering or copying protection, Nirvanix retains the right to pursue all claims and damages resulting from such an act. You retain all intellectual property rights you may have in the Applications you create which are based on or utilize Nirvanix Properties (subject to Nirvanix's underlying ownership rights in Nirvanix Properties). You hereby release and covenant not to sue Nirvanix or its affiliates, or any of their licensees, assigns or successors, for any and all damages, liabilities, causes of action, judgments, and claims: (i) pertaining to your Applications, or any intellectual property you develop that is based on, uses, or relates to Nirvanix Properties; and/or (ii) which otherwise may arise in connection with your use of, reliance on, or reference to Nirvanix Properties. Nirvanix, our affiliates and our applicable licensors retain all intellectual property rights (including all worldwide patent, trademark, copyright, and other proprietary rights) in and to Nirvanix Properties, and any derivative works of the Nirvanix Properties, including without limitation those created by or for Nirvanix pursuant to any Beta Test program outlined in Section 6 below. ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT ARE HEREBY RESERVED BY NIRVANIX, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS.
   
   We disclaim all liability, and you will be solely responsible for, the development, operation, and maintenance of your Application and for all materials that appear on or within your Application. We further disclaim all liability for any failure of your application to interface with the Nirvanix Properties for any reason.
   
   
4. IDENTIFYING YOURSELF AS A USER OF NIRVANIX PROPERTIES AND USE OF NIRVANIX TRADEMARKS
   
   You may generally publicize your use of Nirvanix Properties, however you may not issue any press release with respect to Nirvanix Properties or this Agreement without our prior written consent. We may make available to you certain small graphic images, trademarks, trade names, service marks or logos owned or licensed by Nirvanix or its affiliates ("Marks") that you may use for the purpose of indicating that your Application was creating using Nirvanix Properties. You may not use the Marks in any manner that disparages Nirvanix, its affiliates or its licensors, or that otherwise dilutes the Mark. Other than your limited right to use the Marks as provided in this Agreement, Nirvanix retains all right, title and interest in and to the Marks. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of Nirvanix or its affiliates or third parties that sell products on the Nirvanix Website unless you obtain Nirvanix's and any applicable third party's prior written consent. The foregoing prohibition includes the use of "Nirvanix," any other trademark of Nirvanix or its affiliates, or variations or misspellings of any of them, in the name of an Application or in a URL to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.) -- for example, a URL such as "Nirvanix.mydomain.com" or "Nirvanyx.com" are expressly prohibited. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or state or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by statement or implying that Nirvanix, its affiliates or any third party that sells any products or services on the Nirvanix Website supports, sponsors, endorses, or contributes money to you or your business endeavors).
   
   
5. ACCOUNT IDENTIFIERS
   
   Unless otherwise stated on a specific Service Detail Page, you may only create one account per email address. Your account is not transferable to any person or entity. Nirvanix Properties accounts may be associated with one or more application key/password pairs, which are used to access the Nirvanix Properties. When you complete the account creation process, you will be issued unique Application Key Identifiers, and may add a public key to your account. Application Key Identifiers (i) identify your account and (ii) allow you to make requests to Nirvanix Properties. The Application Key is immutable and will always uniquely identify your Nirvanix Properties account. Public key/private key pairs are unique to your account and are subject to change. You are responsible for maintaining the secrecy of your access keys granted by Nirvanix. You are fully responsible for all activities that occur under your Account Identifiers. Therefore, you should contact Nirvanix immediately if you believe a third party may be using your application key, or if your application key is otherwise lost or stolen. You are responsible for maintaining up-to-date and accurate information (including without limitation valid contact information) with respect to Your Nirvanix Properties account. Nirvanix is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any Content or other data which you submit in connection with your account.
   
   
6. BETA TESTING
   
   From time to time Nirvanix may conduct open beta tests (each a "Beta Test") of new versions of Nirvanix Properties (each a "Beta Test Product"). If you choose to register for or participate in a Beta Test, your participation is subject to the following additional terms:
   
   
   1. You understand that Beta Test Product, as all Nirvanix Properties, are provided "as is" and "as available" without warranty of any kind, either express or implied.
   2. You understand that the overall design of the Beta Test Product could change throughout the course of the Beta Test and that Nirvanix reserves the right to change or withdraw the Beta Test Product, discontinue the Beta Test, revoke your license to the Beta Test, or release the Beta Test Product as a final version at any time in its sole discretion.
   3. You agree to record and report all problems, issues, ideas, feedback and suggestions for enhancements to the Beta Test Product ("Feedback") to Nirvanix on a timely basis to the email address or submission form that will be provided to you along with the beta testing materials, and during the Beta Test period, you will not speak to the press regarding the Beta Test or the Beta Test Product, without our prior written consent.
   4. You hereby assign all right title and interest in and to your Feedback to Nirvanix and/or its affiliates, as applicable, and acknowledge that Nirvanix and/or its affiliates have the unrestricted right to use and exploit such Feedback in any manner, with or without attribution, and without compensation or any duty to account to you for such use.
   5. You agree that any Applications you build and release based on the Beta Test Product during the Beta Test will be labeled as "beta".
      
      
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
   
   NIRVANIX PROPERTIES ARE PROVIDED BY NIRVANIX ON AN "AS IS" AND "AS AVAILABLE" BASIS. NIRVANIX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO NIRVANIX PROPERTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF NIRVANIX PROPERTIES IS AT YOUR SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NIRVANIX DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NIRVANIX DOES NOT WARRANT THAT NIRVANIX PROPERTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THEY WILL BE ACCESSIBLE ON A PERMANENT BASIS OR WITHOUT INTERRUPTION OR THAT THE DATA YOU STORE IN ANY SERVICE ACCOUNT WILL NOT BE LOST OR DAMAGED.
   
   NIRVANIX WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF, OR INABILITY TO USE, NIRVANIX PROPERTIES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA, BUSINESS OR ANTICIPATED PROFITS. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, AND SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
   
   THIS LIMITATION OF LIABILITY DOES NOT APPLY TO LIMIT NIRVANIX'S LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT ONLY THAT IT ARISES AS A RESULT OF THE NEGLIGENCE OF NIRVANIX OR OF ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES.
   
   
8. INDEMNIFICATION
   
   You agree to indemnify, and hold harmless Nirvanix and its affiliates and licensors, and each of their respective employees, directors and representatives, from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals), arising out of or in connection with any claim, action or proceeding (any and all of which are "Claims") which in any way arise out of or are related to: (i) your use or your customer’s use of Nirvanix Properties; or (ii) your Application or Content, including but not limited to any infringement of any third-party rights; and (iii) your violation of any term or condition of this Agreement. At Nirvanix's option, you will assume control of the defense and settlement of any Claim subject to indemnification by you (provided that, in such event, Nirvanix may at any time thereafter elect to take over control of the defense and settlement of any such Claim, and in any event, you may not settle any such Claim without Nirvanix's prior written consent).
   
   
9. APPLICABLE LAW AND ARBITRATION
   
   By using Nirvanix Properties, you agree that the laws of the state of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Nirvanix. Any dispute relating in any way to your use of Nirvanix Properties will be submitted to confidential arbitration in San Diego, California, except that in any case, we may seek injunctive or other appropriate relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Nirvanix's or any third party's intellectual property and/or proprietary rights (and you hereby irrevocably consent to nonexclusive jurisdiction and venue of the state and federal courts of California with respect to any such matters). Arbitration under this Agreement will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
   
   
10. TERMINATION
    
    You may terminate this Agreement by deleting all Content and ceasing to use Nirvanix Web Services. We reserve the right to terminate this Agreement (and/or your account) or your access to any individual or all Services provided under this Agreement, and to delete Content or Applications: (i) if you breach any term or condition in this Agreement and you do not cure such breach to our satisfaction within thirty (30) days after we give you notice of the breach; or (ii) immediately if we are compelled by court order or otherwise discover any use of Nirvanix Properties by you that in our reasonable discretion presents a security risk or that might be the subject of a legal claim or dispute. We further reserve the right to discontinue Nirvanix Properties, any Services, or any portion or feature thereof for any reason and at any time in our sole discretion. Upon any termination or notice of any discontinuance, you must immediately stop your use of the applicable Service. Sections 3, 5, 7 - 11, any definitions that are necessary to give effect to the foregoing provisions, and any payment obligations will survive any termination of this Agreement and will continue to bind you and us in accordance with their terms.
    
    
11. GENERAL PROVISIONS
    
    We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Nirvanix Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO STOP USING NIRVANIX PROPERTIES OR THE APPLICABLE SERVICE(S). YOUR CONTINUED USE OF NIRVANIX PROPERTIES OR THE APPLICABLE SERVICE(S) FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE. No modification of this Agreement other than as provided above will be binding on Nirvanix unless set forth in a writing signed by both parties. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and, upon Nirvanix's request, the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement shall remain in full force and effect. The failure by Nirvanix to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of Nirvanix to enforce such provision thereafter. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns. This Agreement, and policies and guidelines posted on the Nirvanix Website, constitutes the entire agreement between you and Nirvanix regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between you and Nirvanix, whether written or oral, regarding such subject matter. Nothing in this Agreement is intended to or does create any type of joint venture, partnership or employer/employee relationship between you and Nirvanix or its affiliates. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
    
    
12. EXPORT CONTROLS
    
    You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with your use of any Service. Specifically, you acknowledge and understand that Content that you upload, store, manage, or transfer using Nirvanix Properties may be subject to U.S. export control laws and regulations. You hereby certify that you will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any Content to any country (or national thereof) without obtaining any required prior authorizations from the appropriate government authorities.
    
    You may not use any Service (i) to transfer any item to parties who are in U.S. sanctioned countries or identified on restricted government lists, including the Denied Persons List, the List of Specially Designated Nationals, or the Entity List, or (ii) for any military, nuclear, chemical, or biological weaponry use.
    
    
13. COMMUNICATIONS
    
    For any questions regarding this Agreement or Nirvanix Properties, you can contact us at info@Nirvanix.com.
    
    Our Address:
    Nirvanix, Inc.
    525 B St.
    San Diego, CA 92101
    
    © 2008 Nirvanix, Inc. This Agreement was last updated on June 9, 2008.