c9-core/LICENSE-COMMERCIAL-USE

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.