kopia lustrzana https://github.com/c9/core
565 wiersze
33 KiB
Plaintext
565 wiersze
33 KiB
Plaintext
|
CLOUD9 ONPREM LICENSE AGREEMENT
|
|||
|
|
|||
|
|
|||
|
For parties who have entered a separate commercial agreement with Cloud9 to use
|
|||
|
the Cloud9 SDK for commercial purposes, the following license shall apply.
|
|||
|
|
|||
|
|
|||
|
Congratulations! You’re on your way to a better coding experience.
|
|||
|
Cloud9 IDE, Inc.'s ("Cloud9", "we", or "us") Cloud9 OnPrem software helps you
|
|||
|
build software faster and more efficiently by enabling distributed collaborative
|
|||
|
development for teams. Before you download and/or use our Cloud9 OnPrem software,
|
|||
|
we need you to agree to a special set of terms. Welcome to the Software License
|
|||
|
Agreement (the "Agreement").
|
|||
|
|
|||
|
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
|
|||
|
THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW),
|
|||
|
UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE.
|
|||
|
WE'RE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF YOU ACCEPT ALL THE TERMS
|
|||
|
AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING OR USING THE SOFTWARE OR BY
|
|||
|
CLICKING "I ACCEPT" BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS
|
|||
|
AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE
|
|||
|
ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU
|
|||
|
REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS
|
|||
|
AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON'T
|
|||
|
HAVE SUCH AUTHORITY, OR IF YOU DON'T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS
|
|||
|
AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT
|
|||
|
DOWNLOAD, INSTALL, OR USE IT.
|
|||
|
|
|||
|
1.Definitions.
|
|||
|
Here are some definitions we use in this Agreement. If you see a capitalized
|
|||
|
word that isn't listed here, it will be defined somewhere in the Agreement.
|
|||
|
|
|||
|
The "Agreement Effective Date" is the earlier of the date that you either click
|
|||
|
"I Accept" to the terms and conditions of this Agreement, or that you first
|
|||
|
place an order for Software or Services.
|
|||
|
|
|||
|
“Cloud9 SDK” is an Application Programming Interface defined to give users the
|
|||
|
ability to extend the Cloud9 OnPrem software or integrate it with other systems.
|
|||
|
|
|||
|
“Derivative Works” refer to any software created using any of the Cloud9 OnPrem
|
|||
|
source code.
|
|||
|
|
|||
|
"Documentation" means any manuals, documentation and other supporting materials
|
|||
|
related to the Software that we generally provide to our customers.
|
|||
|
Documentation is considered part of the Software.
|
|||
|
|
|||
|
"Fees" means both: (i) the fees you're required to pay us to use the Software
|
|||
|
during the applicable License Term, as such fees are reflected on each
|
|||
|
applicable Order Form; and (ii) the fees you're required to pay us for any
|
|||
|
Services you engage us to perform, as such fees are reflected on each applicable
|
|||
|
SOW.
|
|||
|
|
|||
|
"License Key" means a data file utilized by the Software's access control
|
|||
|
mechanism that allows you to use the Software during the License Term.
|
|||
|
|
|||
|
"License Term" means one (1) year from the applicable Order Effective Date.
|
|||
|
The "Order Form" is a written or electronic form that we'll give you to order
|
|||
|
Software (or that we'll use to order Software on your behalf, once we've gotten
|
|||
|
your authorization). Upon execution by the parties (or, in the case of an
|
|||
|
electronic orders, confirmation and placement of the order), each Order Form
|
|||
|
will be subject to the terms and conditions of this Agreement.
|
|||
|
The "Order Effective Date" is the effective date of each Order Form.
|
|||
|
|
|||
|
“Plugins” refer to any software created to interact with the Cloud9 OnPrem
|
|||
|
software using the Cloud9 SDK.
|
|||
|
|
|||
|
"Seats" mean the number of User accounts for the Software that you're authorized
|
|||
|
to create. The number of Seats is specified in the applicable Order Form. Only
|
|||
|
one User can use a Seat at a time. Multiple Users aren't allowed to use the same
|
|||
|
Seat.
|
|||
|
|
|||
|
"Services" means training, consulting, or implementation services that we
|
|||
|
provide to you pursuant to a mutually executed Statement of Work. Services do
|
|||
|
not include support.
|
|||
|
|
|||
|
"Software" means the object-code/obfuscated source code, actual source code or
|
|||
|
Derivative Works version of our proprietary Cloud9 OnPrem software application.
|
|||
|
Software includes any applicable Documentation, as well as any Updates to the
|
|||
|
Software that we provide you or that you can access under this Agreement.
|
|||
|
"Statement of Work" or "SOW" means a mutually executed statement of work
|
|||
|
detailing the Services we'll perform for you, their price, and your related
|
|||
|
obligations (if any).
|
|||
|
|
|||
|
An "Update" is a Software release that we make generally available to our
|
|||
|
customers, along with any corresponding changes to Documentation. An Update may
|
|||
|
be an error correction or bug fix, generally indicated by a change in the digit
|
|||
|
to the right of the second decimal point (e.g., a change from version x.x.x to
|
|||
|
x.x.y); or it may be an enhancement, new feature, or new functionality,
|
|||
|
generally indicated by a change in the digit to the right of the first decimal
|
|||
|
point (e.g., x.x.x to x.y.x) or to the left of the first decimal point
|
|||
|
(e.g., x.x.x to y.x.x).
|
|||
|
|
|||
|
A "User" is a single person or machine account that initiates the execution of
|
|||
|
the Software and/or interacts with or directs the Software in the performance of
|
|||
|
its functions. The number of Users shouldn't exceed the number of Seats you've
|
|||
|
licensed from us.
|
|||
|
|
|||
|
2.License Grant.
|
|||
|
|
|||
|
Subject to your compliance with the terms of this Agreement (including, among
|
|||
|
other things, paying the Fees you owe us), we hereby grant you a non-exclusive,
|
|||
|
non-transferable, worldwide, royalty-free, limited-term license to install,
|
|||
|
execute, and use the Software for your internal business purposes during the
|
|||
|
applicable License Term, in accordance with the Documentation, and only for the
|
|||
|
number of Seats that you've paid for. You can make copies of the Software for
|
|||
|
non-production purposes only, provided that you reproduce all copyright and
|
|||
|
other proprietary notices that are on the original copy of the Software.
|
|||
|
|
|||
|
Your agents and contractors can use the Software too, so long as they're using
|
|||
|
it on your behalf, and provided that you agree to be fully responsible for their
|
|||
|
behavior under this Agreement.
|
|||
|
|
|||
|
3.Restrictions.
|
|||
|
We license the Software to you – we don't sell it. As between us, we own all
|
|||
|
right, title and interest in and to the Software, and any intellectual property
|
|||
|
rights associated with it and with our company. We reserve all rights in and to
|
|||
|
the Software that we don't expressly grant you in this Agreement. You agree not
|
|||
|
to, nor permit nor authorize any third party to: (i) sublicense, sell, rent,
|
|||
|
lease, transfer, assign, or distribute the Software to third parties; (ii) host
|
|||
|
the Software for the benefit of third parties; (iii) disclose or permit any
|
|||
|
third party to access the Software, except as expressly permitted in Section 2,
|
|||
|
above; (iv) hack or modify the License Key, or try to avoid or change any
|
|||
|
license registration process we may implement; (v) modify or create derivative
|
|||
|
works of the Software, or merge the Software with other software; (vi)
|
|||
|
disassemble, decompile, bypass any code obfuscation, or otherwise reverse
|
|||
|
engineer the Software or attempt to derive any of its source code, in whole or
|
|||
|
in part, except to the extent such activities are expressly permitted by law or
|
|||
|
applicable license notwithstanding this prohibition; (vii) modify, obscure, or
|
|||
|
delete any proprietary rights notices included in or on the Software or
|
|||
|
Documentation; (viii) otherwise use or copy the Software in a manner not
|
|||
|
expressly permitted by this Agreement; or (ix) use any Software that we license
|
|||
|
to you beyond its applicable License Term.
|
|||
|
|
|||
|
4.Seats.
|
|||
|
Remember, only one User can use a Seat at a time. Multiple Users aren't allowed
|
|||
|
to use the same Seat, and only one human being can be associated with a
|
|||
|
particular User account. If you want to swap out, delete, or suspend a User, you
|
|||
|
can do that, and then assign a new User to the open Seat. If you find that you
|
|||
|
need more Seats, that's great – we're here to help! Just submit a new request
|
|||
|
through our website or via our sales team, and pay for the additional Seats
|
|||
|
(a new Order Form will be generated). If and when you add additional Seats to
|
|||
|
your subscription, you'll pay Fees for those seats at the then-current price,
|
|||
|
prorated for the balance of the applicable License Term. When the time comes to
|
|||
|
renew your Seats for another year-long License Term, we'll invoice you for all
|
|||
|
of your Seats at once, at the then-current price (we reserve the right to change
|
|||
|
our prices at any time, but the new prices won't affect you until it's time to
|
|||
|
renew your license for another year). You agree that any orders that you make
|
|||
|
(or that you authorize us to make on your behalf) for additional Seats during
|
|||
|
the term of this Agreement will be governed by this Agreement.
|
|||
|
|
|||
|
5.Verification.
|
|||
|
From time to time, we may have reason to make sure that you're not using extra
|
|||
|
Seats without paying for them. You agree to cooperate with us to achieve that
|
|||
|
goal. To help us verify the number of Seats you're actually using, you agree to
|
|||
|
promptly give us any usage files and reports that your instance of the Software
|
|||
|
generates, if and when we ask for them. We might also (or instead) ask one of
|
|||
|
your officers to certify the number of Seats that you're actually using. You
|
|||
|
agree to provide such a certification if we ask for it. If we determine that
|
|||
|
you're using more Seats than you've paid for, in addition to any other remedies
|
|||
|
we might have at law or in equity, you agree to pay us the then-current Fees for
|
|||
|
the additional Seats you're using, starting from the date you began using each
|
|||
|
Seat.
|
|||
|
|
|||
|
6.Government Users.
|
|||
|
No technical data or computer software is developed under this Agreement. The
|
|||
|
Software and Documentation have been developed solely with private funds, and
|
|||
|
are considered "Commercial Computer Software" and "Commercial Computer Software
|
|||
|
Documentation" as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3,
|
|||
|
and are licensed to the to the U.S. Government end user as restricted computer
|
|||
|
software and limited rights data. Any use, disclosure, modification,
|
|||
|
distribution, or reproduction of the Software or Documentation by the U.S.
|
|||
|
Government or its contractors is subject to the restrictions set forth in this
|
|||
|
Agreement.
|
|||
|
|
|||
|
7.Delivery.
|
|||
|
Promptly after the applicable Order Effective Date, we'll make the Software and
|
|||
|
the License Key available for you to download on a secure, password-protected
|
|||
|
website. As Updates become available, we'll make those available for you to
|
|||
|
download on the same website. You're responsible for maintaining the
|
|||
|
confidentiality of all of your usernames and passwords, including the ones you
|
|||
|
use to download the Software. Take good care of them, because you agree that
|
|||
|
you'll be responsible for any activity that takes place using your usernames and
|
|||
|
passwords (whether you knew about it or not).
|
|||
|
|
|||
|
8.Services.
|
|||
|
Our Services can help you get the most out of the Software. If you want
|
|||
|
Services, let us know, and we'll work with you to prepare a SOW that describes
|
|||
|
the date, time, location, and objectives of the Services, as well as the price.
|
|||
|
|
|||
|
Each SOW will be binding once we both sign it, and you agree that any Services
|
|||
|
we provide to you (whether pursuant to a SOW or not) will be governed
|
|||
|
exclusively by the terms of this Agreement. In the event of any conflict
|
|||
|
between the terms of this Agreement and any SOW, the terms of this Agreement
|
|||
|
will control. Provided you comply with the terms of this Agreement (including,
|
|||
|
among other things, paying us the Fees you owe us), we'll perform the Services
|
|||
|
described in each SOW, according to the timeframes set forth in that SOW.
|
|||
|
|
|||
|
We'll control the manner and means by which the Services are performed, and we
|
|||
|
reserve the right to determine which personnel we assign to perform Services for
|
|||
|
you.
|
|||
|
|
|||
|
Provided we remain responsible for all of their acts and omissions, we can use
|
|||
|
third parties to help us perform the Services. You acknowledge that we will
|
|||
|
retain all right, title and interest in and to anything we use or develop in
|
|||
|
connection with performing Services for you, including, among other things,
|
|||
|
software programs, tools, specifications, ideas, concepts, inventions,
|
|||
|
processes, techniques, and know-how. To the extent we deliver anything to you
|
|||
|
during the course of performing Services, we grant you a non-exclusive,
|
|||
|
non-transferable, worldwide, royalty-free, limited-term license to use those
|
|||
|
deliverables during the term of this Agreement, solely in conjunction with your
|
|||
|
use of the Software.
|
|||
|
|
|||
|
9.Term and Termination.
|
|||
|
|
|||
|
9.1 Term.
|
|||
|
This Agreement starts on the Agreement Effective Date and will continue in
|
|||
|
effect for one (1) year (the "Initial Term"), at which time, so long as you
|
|||
|
choose to renew your Software license for additional License Terms (which, to be
|
|||
|
clear, you're under no obligation to do), this Agreement will automatically
|
|||
|
continue in effect for additional one (1) year terms (each, a "Renewal Term")
|
|||
|
until this Agreement is either terminated by a party or expires in accordance
|
|||
|
with this Section 8. We'll notify you at least sixty (60) days before the end of
|
|||
|
the Initial Term and each Renewal Term that it's time for you to renew your
|
|||
|
Software license. If you want to renew, let us know. We'll generate a new Order
|
|||
|
Form for you, and make a new License Key available for you to download that will
|
|||
|
let you use the Software for another License Term.
|
|||
|
|
|||
|
9.2 Termination for Convenience;
|
|||
|
Automatic Expiration. Either of us can terminate this Agreement for our
|
|||
|
convenience at the end of the Initial Term or any Renewal Term by providing
|
|||
|
written notice to the other at least thirty (30) days before the end of the
|
|||
|
Initial Term or any Renewal Term. This Agreement will automatically expire
|
|||
|
without the requirement of notice if, at the end of the Initial Term or any
|
|||
|
Renewal Term, you decide not to pay the Fees required to renew your Seats for an
|
|||
|
additional License Term.
|
|||
|
|
|||
|
9.3 Termination for Breach.
|
|||
|
We can terminate this Agreement immediately upon notice to you if you breach
|
|||
|
any part of it, and you fail to cure the breach within thirty (30) days of us
|
|||
|
notifying you of it. That said, there are certain kinds of breaches that we take
|
|||
|
much more seriously, and that can really damage us. We therefore reserve the
|
|||
|
right to terminate this Agreement immediately upon written notice to you, but
|
|||
|
without giving you a cure period, if you breach any of the terms of this
|
|||
|
Agreement relating to our intellectual property (including your compliance with
|
|||
|
the license grant and any license restrictions) or our Confidential Information
|
|||
|
(defined below).
|
|||
|
|
|||
|
9.4 Effect of Termination.
|
|||
|
When this Agreement terminates or expires: (i) the License Term for any Software
|
|||
|
in your possession will immediately end, and any outstanding SOWs will
|
|||
|
immediately terminate; (ii) you'll no longer have the right to use the Software,
|
|||
|
and any licenses we grant you in this Agreement will automatically cease to
|
|||
|
exist as of the date of termination/expiration; (iii) if you owed us any money
|
|||
|
prior to termination/expiration, you'll need to pay us all that money
|
|||
|
immediately; (iv) you'll destroy all copies of the Software in your possession
|
|||
|
or control, and certify in writing to us that you've done so; and (v) each of
|
|||
|
us will promptly return to the other (or, if the other party requests it,
|
|||
|
destroy) all Confidential Information belonging to the other. You'll still be
|
|||
|
able to access the Software to migrate your data for ninety (90) days after
|
|||
|
termination or expiration of this Agreement, but you won't be allowed to use the
|
|||
|
Software on a production basis during that time. We encourage you to keep
|
|||
|
copies of your data outside of the Software itself, because if the Software gets
|
|||
|
disabled, you won't have access to the data you've stored there (and we won't be
|
|||
|
liable to you if that happens). Sections 1, 3, 5, 6, 8, 9.2, 9.3, 9.4, 11, 12.2,
|
|||
|
and 13-17 will survive the termination or expiration of this Agreement for any
|
|||
|
reason.
|
|||
|
|
|||
|
10.Support.
|
|||
|
|
|||
|
10.1 Support Times.
|
|||
|
Provided that you've paid us the Fees you owe us, we'll provide you with
|
|||
|
technical support for the Software twenty-four (24) hours per day, five (5) days
|
|||
|
per week, excluding weekends and national U.S. holidays. We currently only offer
|
|||
|
support via email (write to us at mailto:support@c9.io) or web-based ticketing
|
|||
|
(through https://c9.io/support). You can contact our amazing support team to
|
|||
|
help answer your questions on installing and using the Software, identifying and
|
|||
|
verifying the causes of suspected errors in the Software, and helping you find
|
|||
|
workarounds for Software malfunctions. Though we'll do our best to respond to
|
|||
|
automated support requests, we typically need more information than an automated
|
|||
|
ticketing system can give us to solve your issue. Whenever possible, please
|
|||
|
initiate any support requests from a person or machine that our support team can
|
|||
|
interact with. We like the personal touch.
|
|||
|
|
|||
|
10.2 Updates.
|
|||
|
We'll make Updates available to you on the same secure website where you
|
|||
|
downloaded the Software and the License Key.
|
|||
|
|
|||
|
10.3 Exclusions.
|
|||
|
We might not be able to correct every problem we find, but we'll use our
|
|||
|
reasonable efforts to correct any material, reproducible errors in the Software
|
|||
|
that you make us aware of. We might ask for your help in reproducing the error
|
|||
|
for us. Please - don't do things with our Software that would make it harder for
|
|||
|
us to help you. We won't be responsible for supporting you in those
|
|||
|
circumstances, which include, among other things: (i) someone (other than us)
|
|||
|
modifying the Software; (ii) changing your operating system or environment in a
|
|||
|
way that adversely affects the Software or its performance; (iii) using the
|
|||
|
Software in a manner for which it was not designed, or other than as authorized
|
|||
|
under this Agreement; or (iv) accident, negligence, or misuse of the Software.
|
|||
|
We're only required to support a given version of the Software for a year from
|
|||
|
the date of its commercial release, or six months from the commercial release
|
|||
|
of the next Update, whichever is longer. If you want support for earlier
|
|||
|
versions of the Software, we'll try to help you if we can, but you'll need to
|
|||
|
pay us for that help at our then-current rates.
|
|||
|
|
|||
|
11.Payment.
|
|||
|
You agree to pay the Fees to us in full, without deduction or setoff of any
|
|||
|
kind, in U.S. Dollars (unless the Order Form says otherwise), within 30 days of
|
|||
|
the date of the invoice we send you related to the applicable SOW or Order Form.
|
|||
|
Amounts payable under this Agreement are nonrefundable, except as provided in
|
|||
|
Section 12.1. If you don't pay us on time, we reserve the right, in addition to
|
|||
|
taking any other action that we see fit, to charge you interest on past due
|
|||
|
amounts at 1.0% per month or the highest interest rate allowed by law, whichever
|
|||
|
is less, and to additionally charge all expenses of recovery. You are solely
|
|||
|
responsible for all taxes, fees, duties and governmental assessments (except for
|
|||
|
taxes based on Cloud9's net income) that are imposed or become due in connection
|
|||
|
with the subject matter of this Agreement.
|
|||
|
|
|||
|
12.Limited Warranties
|
|||
|
|
|||
|
12.1 Limited Warranties.
|
|||
|
We offer you (and only you) the following limited warranties: (i) that the
|
|||
|
unmodified Software, at the time we make it available to you for download, will
|
|||
|
not contain or transmit any malware, viruses, or worms (otherwise known as
|
|||
|
computer code or other technology specifically designed to disrupt, disable, or
|
|||
|
harm your software, hardware, computer system, or network); (ii) that any
|
|||
|
Services we perform for you under this Agreement will be performed in a good and
|
|||
|
workmanlike manner, by appropriately qualified personnel (you just need to let
|
|||
|
us know about a problem within thirty (30) days of the date the Services were
|
|||
|
performed); and (iii) that, for ninety (90) days from the date the Software is
|
|||
|
made available for download, the unmodified Software will substantially conform
|
|||
|
to its Documentation. We don't warrant that your use of the Software will be
|
|||
|
uninterrupted, or that the operation of the Software will be error-free.
|
|||
|
|
|||
|
These warranties won't apply if you modify the Software, or if you use the
|
|||
|
Software in any way that isn't expressly permitted by this Agreement and the
|
|||
|
Documentation.
|
|||
|
|
|||
|
Our only obligation, and your only remedy, for any breach of these limited
|
|||
|
warranties will be, at our option and expense, to either (i) repair the
|
|||
|
Software; (ii) replace the Software; or (iii) terminate this Agreement with
|
|||
|
respect to the defective Software, and refund the Fees you've paid for the
|
|||
|
defective Software during the then-current License Term once you've returned it
|
|||
|
to us (or destroyed it).
|
|||
|
|
|||
|
12.2 Disclaimer.
|
|||
|
THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH
|
|||
|
RESPECT TO THE SOFTWARE, SERVICES AND OUR TECHNICAL SUPPORT. WE DON'T MAKE ANY
|
|||
|
OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES,
|
|||
|
WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES
|
|||
|
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
|
|||
|
OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF
|
|||
|
TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US
|
|||
|
OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN
|
|||
|
THIS AGREEMENT.
|
|||
|
|
|||
|
13.LIMITATION OF LIABILITY.
|
|||
|
|
|||
|
13.1 Waiver of Consequential Damages.
|
|||
|
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE
|
|||
|
TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
|
|||
|
CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR
|
|||
|
THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH
|
|||
|
THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM
|
|||
|
BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
|
|||
|
OTHERWISE, AND WHETHER OR NOT WE'VE BEEN ADVISED OF THE POSSIBILITY OF SUCH
|
|||
|
DAMAGES.
|
|||
|
|
|||
|
13.2 Limitation of Total Liability.
|
|||
|
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE
|
|||
|
LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF
|
|||
|
ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE
|
|||
|
FEES YOU'VE ACTUALLY PAID US DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING
|
|||
|
RISE TO SUCH LIABILITY.
|
|||
|
|
|||
|
13.3 Basis of Bargain.
|
|||
|
You understand and agree that we've set our prices and entered into this
|
|||
|
Agreement with you in reliance upon the limitations of liability set forth in
|
|||
|
this Agreement, which allocate risk between us and form the basis of a bargain
|
|||
|
between the parties.
|
|||
|
|
|||
|
14.Indemnification.
|
|||
|
|
|||
|
14.1 Our Indemnification Obligation.
|
|||
|
We'll defend or settle, at our option and expense, any third-party claim brought
|
|||
|
against you to the extent that it's based on an allegation that your use or
|
|||
|
possession of the Software as permitted under this Agreement infringes a
|
|||
|
copyright or misappropriates a trade secret of any third party (each, a "Claim"),
|
|||
|
and, subject to Section 13, we'll pay all damages and costs (including
|
|||
|
reasonable legal fees) finally awarded by a court of final appeal attributable
|
|||
|
to such a Claim, provided that you notify us in writing of any such Claim as
|
|||
|
soon as reasonably practicable and allow us to control, and reasonably cooperate
|
|||
|
with us in the defense of, any such Claim and related settlement negotiations.
|
|||
|
|
|||
|
14.2 Exclusions.
|
|||
|
You understand that we'll have no obligation to indemnify you for any Claim
|
|||
|
that's based on (i) the modification of the Software, unless we were the ones
|
|||
|
who made the modifications; (ii) your use of the Software other than as
|
|||
|
authorized by this Agreement and the Documentation; (iii) your failure to use
|
|||
|
updated or modified Software that we make available to you that would have
|
|||
|
helped avoid or mitigate the Claim; (iv) your failure to stop using the Software
|
|||
|
after receiving written notice to do so from us in order to avoid further
|
|||
|
infringement or misappropriation; or (v) the combination, operation or use of
|
|||
|
the Software with equipment, devices, software, systems, or data that we didn't
|
|||
|
supply (subparts (i)-(v) may be referred to collectively as "Indemnity
|
|||
|
Exclusions").
|
|||
|
|
|||
|
14.3 Right to Ameliorate Damages.
|
|||
|
If your use of the Software is, or in our reasonable opinion is likely to be,
|
|||
|
subject to a Claim under Section 14.1, we may, at our sole option and at no
|
|||
|
charge to you (and in addition to our indemnity obligation to you in Section
|
|||
|
14.1): (i) procure for you the right to continue using the Software; (ii)
|
|||
|
replace or modify the Software so that it is non-infringing and substantially
|
|||
|
equivalent in function to the original Software; or (iii) if options (i) and (ii)
|
|||
|
above are not commercially practicable in our reasonable estimation, we can
|
|||
|
terminate this Agreement and all licenses granted hereunder (in which event,
|
|||
|
you will immediately stop using the Software) and refund the Fees that you paid
|
|||
|
us for the then-current License Term.
|
|||
|
|
|||
|
14.4 Sole Remedy.
|
|||
|
THIS SECTION 14 SETS FORTH OUR SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND
|
|||
|
EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION
|
|||
|
OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
|
|||
|
|
|||
|
14.5 Your Indemnification Obligation.
|
|||
|
Because we can't know what you're doing with the Software behind your firewall,
|
|||
|
except to the extent that we're obliged to indemnify you in Section 14.1 above,
|
|||
|
you will defend, indemnify, and hold us harmless from and against any claims
|
|||
|
that may arise out of or that are based upon (i) your breach of this Agreement;
|
|||
|
(ii) content that you upload to the Software; or (iii) an Indemnity Exclusion.
|
|||
|
|
|||
|
15.Confidentiality.
|
|||
|
|
|||
|
15.1 Definition of Confidential Information.
|
|||
|
For the purposes of this Agreement, "Confidential Information" means any
|
|||
|
business or technical information that either one of us discloses to the other,
|
|||
|
in writing, orally, or by any other means, and including things like computer
|
|||
|
programs, code, algorithms, data, know-how, formulas, processes, ideas,
|
|||
|
inventions (whether patentable or not), schematics and other technical,
|
|||
|
business, financial, and product development plans, names and expertise of
|
|||
|
employees and consultants, and customer lists. For the purposes of this
|
|||
|
Agreement, except as expressly set forth in Section 17.2 below, the source code
|
|||
|
of our Software will be deemed to be Cloud9's Confidential Information,
|
|||
|
regardless of whether it is marked as such.
|
|||
|
|
|||
|
15.2 Restrictions on Use and Disclosure.
|
|||
|
Neither of us will use the other party's Confidential Information, except as
|
|||
|
permitted under this Agreement. Each of us agrees to maintain in confidence and
|
|||
|
protect the other party's Confidential Information using at least the same
|
|||
|
degree of care as we use for its own information of a similar nature, but in all
|
|||
|
events at least a reasonable degree of care. Each of us agrees to take all
|
|||
|
reasonable precautions to prevent any unauthorized disclosure of the other's
|
|||
|
Confidential Information, including, without limitation, disclosing Confidential
|
|||
|
Information only to its employees, independent contractors, consultants, and
|
|||
|
legal and financial advisors (collectively, "Representatives") (i) with a need
|
|||
|
to know such information, (ii) who are parties to appropriate agreements
|
|||
|
sufficient to comply with this Section 15, and (iii) who are informed of the
|
|||
|
nondisclosure obligations imposed by this Section 15. Each of us will be
|
|||
|
responsible for all acts and omissions of our Representatives. The foregoing
|
|||
|
obligations won't restrict either of us from disclosing Confidential Information
|
|||
|
of the other party pursuant to the order or requirement of a court,
|
|||
|
administrative agency, or other governmental body, provided that the party
|
|||
|
required to make such a disclosure gives reasonable notice to the other party to
|
|||
|
enable them to contest such order or requirement. The restrictions set forth in
|
|||
|
this Section 15 will survive the termination or expiration of this Agreement.
|
|||
|
|
|||
|
15.3 Exclusions.
|
|||
|
The restrictions set forth in Section 15.2 will not apply with respect to any
|
|||
|
Confidential Information that: (i) was or becomes publicly known through no
|
|||
|
fault of the receiving party; (ii) was rightfully known or becomes rightfully
|
|||
|
known to the receiving party without confidential or proprietary restriction
|
|||
|
from a source other than the disclosing party who has a right to disclose it;
|
|||
|
(iii) is approved by the disclosing party for disclosure without restriction in
|
|||
|
a written document which is signed by a duly authorized officer of such
|
|||
|
disclosing party; or (iv) the receiving party independently develops without
|
|||
|
access to or use of the other party's Confidential Information.
|
|||
|
|
|||
|
16.Governing Law and Jurisdiction.
|
|||
|
This Agreement will be governed by and interpreted in accordance with the laws
|
|||
|
of the State of California, without giving effect to any principles of conflict
|
|||
|
of laws. The parties expressly agree that the United Nations Convention on
|
|||
|
Contracts for the International Sale of Goods and the Uniform Computer
|
|||
|
Information Transactions Act will not apply to this Agreement. Any legal action
|
|||
|
or proceeding arising under, related to or connected with this Agreement will
|
|||
|
be brought exclusively in the federal (if they have jurisdiction) or state
|
|||
|
courts located in San Francisco, California and the parties irrevocably consent
|
|||
|
to the personal jurisdiction and venue there.
|
|||
|
|
|||
|
17.Miscellaneous.
|
|||
|
|
|||
|
17.1 Assignment.
|
|||
|
You aren't allowed to assign or transfer any of your rights or obligations in
|
|||
|
this Agreement, in whole or in part, by operation of law or otherwise, without
|
|||
|
our prior written consent, and any attempt by you to do so without our consent
|
|||
|
will be null and void. We can assign this Agreement in its entirety, upon
|
|||
|
notice to you but without the requirement to obtain consent, in connection with
|
|||
|
a merger, acquisition, corporate reorganization, or sale of all or substantially
|
|||
|
all of our business or assets.
|
|||
|
|
|||
|
17.3 Severability.
|
|||
|
In the event that any provision of this Agreement is deemed by a court of
|
|||
|
competent jurisdiction to be illegal, invalid, or unenforceable, the court will
|
|||
|
modify or reform this Agreement to give as much effect as possible to that
|
|||
|
provision. Any provision that can't be modified or reformed in this way will be
|
|||
|
deemed deleted, and the remaining provisions of this Agreement will continue in
|
|||
|
full force and effect.
|
|||
|
|
|||
|
17.4 Notices.
|
|||
|
Any notice, request, demand or other communication required or permitted under
|
|||
|
this Agreement should be in writing (e-mail counts), should reference this
|
|||
|
Agreement, and will be deemed to be properly given: (i) upon receipt, if
|
|||
|
delivered personally; (ii) upon confirmation of receipt by the intended
|
|||
|
recipient, if by e-mail; (iii) five (5) business days after it is sent by
|
|||
|
registered or certified mail, with written confirmation of receipt; or (iv)
|
|||
|
three (3) business days after deposit with an internationally recognized express
|
|||
|
courier, with written confirmation of receipt. Notices should be sent to the
|
|||
|
address(es) set forth on the Invoice, unless we notify each other that those
|
|||
|
addresses have changed.
|
|||
|
|
|||
|
17.5 Waiver.
|
|||
|
A party's obligations under this Agreement can only be waived in a writing
|
|||
|
signed by an authorized representative of the other party, which waiver will be
|
|||
|
effective only with respect to the specific obligation described. Any waiver or
|
|||
|
failure to enforce any provision of this Agreement on one occasion will not be
|
|||
|
deemed a waiver of any other provision or of such provision on any other
|
|||
|
occasion.
|
|||
|
|
|||
|
17.6 Force Majeure.
|
|||
|
We will be excused from performing under this Agreement to the extent that we're
|
|||
|
unable to perform due extraordinary causes beyond our reasonable control. That
|
|||
|
might include things like acts of God, strikes, lockouts, riots, acts of war,
|
|||
|
epidemics, communication line failure, and power failures.
|
|||
|
|
|||
|
17.7 Independent Contractors.
|
|||
|
We're each independent contractors with respect to the subject matter of this
|
|||
|
Agreement. Nothing contained in this Agreement will be deemed or construed in
|
|||
|
any manner whatsoever to create a partnership, joint venture, employment, agency,
|
|||
|
fiduciary, or other similar relationship between us, and neither of us can bind
|
|||
|
the other contractually.
|
|||
|
|
|||
|
17.8 Amendments;
|
|||
|
Entire Agreement. No modification, change, or amendment of this Agreement will
|
|||
|
be binding upon the parties, unless we both agree to the change in a writing
|
|||
|
signed by each of our authorized representatives. This Agreement, including each
|
|||
|
Order Form and SOW, constitutes the entire agreement and understanding of the
|
|||
|
parties with respect to its subject matter, and supersedes any and all prior or
|
|||
|
contemporaneous understandings and agreements, whether oral or written, between
|
|||
|
the parties with respect to its subject matter.
|
|||
|
|
|||
|
17.9 No Other Terms.
|
|||
|
Sometimes your accounting folks will send us purchase orders with lots of itty
|
|||
|
bitty language attached that requires a microscope for us to read. Everybody
|
|||
|
does it – we understand. But this Agreement is the only agreement between us,
|
|||
|
and the terms of any purchase order, written terms or conditions, or other
|
|||
|
document that you submit to us that contain terms that are different from, in
|
|||
|
conflict with, or in addition to the terms of this Agreement, SOW or any Order
|
|||
|
Form are hereby rejected by Cloud9, and will be void and of no effect.
|
|||
|
|
|||
|
17.10 No Publicity Without Your Permission.
|
|||
|
We may identify you as a customer to current and prospective clients.
|
|||
|
|
|||
|
We won't use your name or logo in any advertising or marketing materials without
|
|||
|
your permission, though; and if we ask for your permission, you always have the
|
|||
|
right to say no.
|
|||
|
|