From c0264c5fcf242c1610d4e4dbc9cd520373cc2be8 Mon Sep 17 00:00:00 2001 From: nightwing Date: Tue, 26 Apr 2016 03:04:04 +0400 Subject: [PATCH] add LICENSE-COMMERCIAL-USE to sdk config --- LICENSE-COMMERCIAL-USE | 564 +++++++++++++++++++++++++++++++++++++++++ 1 file changed, 564 insertions(+) create mode 100644 LICENSE-COMMERCIAL-USE diff --git a/LICENSE-COMMERCIAL-USE b/LICENSE-COMMERCIAL-USE new file mode 100644 index 00000000..e6f960c4 --- /dev/null +++ b/LICENSE-COMMERCIAL-USE @@ -0,0 +1,564 @@ +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 fGaster 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. +