DYNAMIC NETWORK SERVICES, INC. 

"DYN LABS" USE AGREEMENT 

Last updated 8/15/08 


Access to this, "Dyn Labs" website (the "Website"), and use of any and all computer programs made available for download on the Website (the "Programs") and any and all services provided through the Website (the "Services") are provided to you by Dynamic Network Services, Inc. ("Dyn"). By using the Programs and Services you agree, without limitation or qualification, to be expressly bound by the terms of use set forth below (the "Labs Use Agreement") and to follow all applicable laws and regulations governing use of the Programs and Services. If you do not agree with this Labs Use Agreement, your sole recourse is to not use the Programs or Services.

1. Priority. This Labs Use Agreement, in combination with terms of use for www.dynamicnetworkservices.com, available at http://www.dynamicnetworkservices.com/tou.txt (the "General Terms of Use"), which is incorporated herein by reference, set forth the terms and conditions under which Dyn makes the Website, Programs and Services available to you. In the event of an inconsistency between the Labs Use Agreement and the General Terms of Use, this Labs Use Agreement shall control.

2. Representations and Confidentiality. You represent and warrant that: (a) you will use the Programs and/or Services solely for personal, non-commercial purposes; (b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from the Website as they are protected by U.S and international intellectual property laws; (c) you are not, and you do not work for or represent, a person or entity that is a Dyn Competitor (defined below); (d) you will not provide any information about the Programs and/or Services to a Dyn Competitor or in any way assist a Dyn Competitor in gathering information about the Website, Programs or the Services; and (e) you will not disclose any Confidential Information (defined below) to a third party, including, without limitation, a Dyn Competitor, or use such Confidential Information for any purpose other than to facilitate beta testing of the Programs and/or Services, except that you may disclose Confidential Information to the extent required by law, provided you give Dyn advanced notice reasonably sufficient to allow it to contest such disclosure. Dyn shall have the right to take appropriate civil and/or criminal legal action against you if you violate of any of the above representations and warranties. If you wish to use any portion of the Website, Programs or Services for commercial purposes, please contact Dyn for more information.

For the purposes of this Labs Use Agreement: (a) "Dyn Competitor" refers to any person or entity: (i) that offers stand-alone DNS services or virtual server hosting as commercial services; (ii) that is in any way involved in the commercial development or provision of such services; or (ii) that in any other way develops or provides products or services competitive with products or services provided by Dyn; and (b) "Confidential Information" means any information regarding the Website, Programs or Services unless such information is: (i) provided at the Website and made available to Internet users without an account or password; (ii) already publicly known other than through your act or omission; or (iii) made available by Dyn to its customers after the public commercial launch of the Programs or Services.

3. Proper Use. You are solely responsible for your use of the Programs and/or Services. Your use of the Programs and/or Services is subject to all applicable local, state, federal, and international laws and regulations. You agree: (a) to comply with all local, state, and federal laws regarding the transmission of technical data exported from the United States through use of the Programs and/or Services; (b) not to use the Programs and/or Services for illegal purposes; (c) not to interfere with or disrupt networks connected to the Programs and/or Services; and (d) to comply with all regulations, policies, and procedures of networks connected to the Programs and/or Services. The Programs and/or Services may make use of the Internet's DNS protocol to create and delegate domains; therefore, your conduct is subject to Internet regulations, policies, and procedures. You expressly agree that you will not use the Programs and/or Services for unauthorized distribution of copyrighted material, creation or distribution of illegal software or illegal pornography, spamming, linkspamming, spamdexing, or any use of distribution lists to any person who has not given specific permission to be included in such a process. For purposes of this Labs Use Agreement, facilitation of the illegal distribution of copyrighted materials, through operation of a "hub", "tracker", or other filesharing mechanism, shall be considered identical to the actual illegal distribution of those copyrighted materials. You agree not to transmit, using the Programs and/or Services, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. You shall not knowingly interfere with another's use or enjoyment of the Programs and/or Services.

4. Feedback. Through your use of the Programs and/or Services there may by opportunities for you to actively participate in the development or redevelopment of the Programs and/or Services. Through such use and participation, you may provide certain comments, suggestions, data, or other information to Dyn (collectively "Information"). Dyn shall have the right to retain and use any such Information in current or future products or services, without further compensation to you. To the extent such information is protectable under intellectual property laws, you agree to cooperate with Dyn as needed to obtain such protection as Dyn may desire and you agree to assign your rights to such Information to Dyn Furthermore, Dyn may share aggregate (not personally identifiable) Information with its business partners or other third parties. Dyn will not, however, knowingly disclose personally identifiable Information to third parties unless required to do so in order to comply with any valid legal process, such as a search warrant, subpoena, statute, court order, or if necessary or appropriate to address an unlawful or harmful activity.

5. Disclaimers. THE PROGRAMS AND SERVICES ARE EXPIRAMENTAL AND PROVIDED "AS IS," "AS AVAILABLE" AND WITH NO WARRANTY. DYN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, BOTH EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ABSENCE OF LIEN, ENCUMBRANCE OR SECURITY INTEREST, QUIET ENJOY-MENT, AND NONINFRINGEMENT. DYN MAKES NO WARRANTY THAT THE PROGRAM WILL MEET THE YOUR NEEDS, OR THAT THE ACCESS TO THE WEBSITE, PROGRAMS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES DYN MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE PROGRAM OR THAT ANY DEFECTS ON THE WEBSITE OR IN THE PROGRAMS OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE OR THE PROGRAMS OR SERVICES IS DONE AT THE YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER(S) OR COMPUTER SYSTEM(S) OR ANY LOSS OF DATA BY YOU THAT RESULT FROM OF SUCH MATERIAL AND/OR DATA. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DYN SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFIT, REVENUE, USE OR DATA IN CONNECTION WITH USE OF THE PROGRAMS OR SERVICES, EVEN IF DYN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DYN SHALL NOT BE LIABLE TO YOU FOR ANY AMOUNT. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 6 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS LABS USE AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

7. Release and Waiver. To the maximum extent permitted by applicable law, you hereby release, and waive any and all claims against Dyn and its employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Programs and/or Services.

8. Modifications of Terms. Dyn shall have the right to modify the terms of this Labs Use Agreement at any time, which modification shall be effective immediately upon posting to the website. Accordingly, you should check this page periodically. To make your review more convenient, we will post a version number or date near the top of this Labs Use Agreement.

9. Violations of Terms. In addition to any legal remedies that Dyn may have for your violation of the terms of this Labs Use Agreement, Dyn, at its sole discretion, may immediately and without notice terminate your ability to access the Programs and/or Services if your conduct fails to conform to the terms and conditions of this Labs Use Agreement.

10. Hold Harmless and Indemnity. You agree to indemnify, defend, and hold harmless Dyn, its directors, officers, shareholders, employees and agents, and their respective successors, assigns, estates and heirs from and against any and all causes of action, losses, liabilities, claims, damages, obligations, fees, costs, expenses (including, without limitation, reasonable legal/attorneyÕs fees), brought by or owing to any third party and arising from any wrongful act or omission perpetrated by you in connection with or arising as a result of your use of the Programs and/or Services. In such a case, Dyn will provide you with written notice of such claim, suit or action.

11. No Assignment. You shall not assign this Labs Use Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without Dyn's prior written consent. Any such purported assignment or delegation by you without DynÕs prior written consent will be null and void and of no force or effect, unless otherwise expressly consented to by Dyn at its sole and unfettered discretion.

12. Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Labs Use Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.

13. Miscellaneous. If any provision, or portion thereof, of this Labs Use Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions hereof, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and you agree to use your best efforts to work with Dyn to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant Labs Use Agreement to as closely as possible achieve the intention of the parties hereto had the stricken provision remained. No waiver of any term or condition of this Labs Use Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under this Labs Use Agreement be construed as a waiver of any other default. No waiver of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, and no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. The section headings contained in this Labs Use Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Labs Use Agreement. The respective rights and obligations of the Parties hereunder shall survive the expiration or termination of this Labs Use Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive. This Labs Use Agreement shall be interpreted in accordance with the laws of the State of New Hampshire without regard to its conflicts of law provisions and the and all claims and/or lawsuits in connection with this Labs Use Agreement must be brought in any state or federal court located in the State of New Hampshire, and the parties hereby submit to the jurisdiction and venue of any such court. The General Terms of Use and this Labs Use Agreement constitute the complete and exclusive statement of all mutual understandings between Dyn and you with respect your use of the Programs and/or Services.