kopia lustrzana https://github.com/c9/core
565 wiersze
33 KiB
Plaintext
565 wiersze
33 KiB
Plaintext
CLOUD9 ONPREM LICENSE AGREEMENT
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For parties who have entered a separate commercial agreement with Cloud9 to use
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the Cloud9 SDK for commercial purposes, the following license shall apply.
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Congratulations! You’re on your way to a better coding experience.
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Cloud9 IDE, Inc.'s ("Cloud9", "we", or "us") Cloud9 OnPrem software helps you
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build software faster and more efficiently by enabling distributed collaborative
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development for teams. Before you download and/or use our Cloud9 OnPrem software,
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we need you to agree to a special set of terms. Welcome to the Software License
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Agreement (the "Agreement").
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PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
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THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE SOFTWARE (AS DEFINED BELOW),
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UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE.
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WE'RE ONLY WILLING TO LICENSE THE SOFTWARE TO YOU IF YOU ACCEPT ALL THE TERMS
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AND CONDITIONS OF THIS AGREEMENT. BY INSTALLING OR USING THE SOFTWARE OR BY
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CLICKING "I ACCEPT" BELOW, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS
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AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE
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ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU
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REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS
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AGREEMENT, IN WHICH CASE "YOU" WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DON'T
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HAVE SUCH AUTHORITY, OR IF YOU DON'T ACCEPT ALL THE TERMS AND CONDITIONS OF THIS
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AGREEMENT, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT
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DOWNLOAD, INSTALL, OR USE IT.
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1.Definitions.
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Here are some definitions we use in this Agreement. If you see a capitalized
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word that isn't listed here, it will be defined somewhere in the Agreement.
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The "Agreement Effective Date" is the earlier of the date that you either click
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"I Accept" to the terms and conditions of this Agreement, or that you first
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place an order for Software or Services.
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“Cloud9 SDK” is an Application Programming Interface defined to give users the
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ability to extend the Cloud9 OnPrem software or integrate it with other systems.
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“Derivative Works” refer to any software created using any of the Cloud9 OnPrem
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source code.
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"Documentation" means any manuals, documentation and other supporting materials
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related to the Software that we generally provide to our customers.
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Documentation is considered part of the Software.
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"Fees" means both: (i) the fees you're required to pay us to use the Software
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during the applicable License Term, as such fees are reflected on each
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applicable Order Form; and (ii) the fees you're required to pay us for any
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Services you engage us to perform, as such fees are reflected on each applicable
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SOW.
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"License Key" means a data file utilized by the Software's access control
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mechanism that allows you to use the Software during the License Term.
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"License Term" means one (1) year from the applicable Order Effective Date.
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The "Order Form" is a written or electronic form that we'll give you to order
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Software (or that we'll use to order Software on your behalf, once we've gotten
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your authorization). Upon execution by the parties (or, in the case of an
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electronic orders, confirmation and placement of the order), each Order Form
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will be subject to the terms and conditions of this Agreement.
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The "Order Effective Date" is the effective date of each Order Form.
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“Plugins” refer to any software created to interact with the Cloud9 OnPrem
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software using the Cloud9 SDK.
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"Seats" mean the number of User accounts for the Software that you're authorized
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to create. The number of Seats is specified in the applicable Order Form. Only
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one User can use a Seat at a time. Multiple Users aren't allowed to use the same
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Seat.
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"Services" means training, consulting, or implementation services that we
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provide to you pursuant to a mutually executed Statement of Work. Services do
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not include support.
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"Software" means the object-code/obfuscated source code, actual source code or
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Derivative Works version of our proprietary Cloud9 OnPrem software application.
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Software includes any applicable Documentation, as well as any Updates to the
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Software that we provide you or that you can access under this Agreement.
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"Statement of Work" or "SOW" means a mutually executed statement of work
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detailing the Services we'll perform for you, their price, and your related
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obligations (if any).
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An "Update" is a Software release that we make generally available to our
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customers, along with any corresponding changes to Documentation. An Update may
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be an error correction or bug fix, generally indicated by a change in the digit
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to the right of the second decimal point (e.g., a change from version x.x.x to
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x.x.y); or it may be an enhancement, new feature, or new functionality,
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generally indicated by a change in the digit to the right of the first decimal
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point (e.g., x.x.x to x.y.x) or to the left of the first decimal point
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(e.g., x.x.x to y.x.x).
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A "User" is a single person or machine account that initiates the execution of
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the Software and/or interacts with or directs the Software in the performance of
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its functions. The number of Users shouldn't exceed the number of Seats you've
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licensed from us.
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2.License Grant.
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Subject to your compliance with the terms of this Agreement (including, among
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other things, paying the Fees you owe us), we hereby grant you a non-exclusive,
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non-transferable, worldwide, royalty-free, limited-term license to install,
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execute, and use the Software for your internal business purposes during the
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applicable License Term, in accordance with the Documentation, and only for the
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number of Seats that you've paid for. You can make copies of the Software for
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non-production purposes only, provided that you reproduce all copyright and
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other proprietary notices that are on the original copy of the Software.
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Your agents and contractors can use the Software too, so long as they're using
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it on your behalf, and provided that you agree to be fully responsible for their
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behavior under this Agreement.
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3.Restrictions.
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We license the Software to you – we don't sell it. As between us, we own all
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right, title and interest in and to the Software, and any intellectual property
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rights associated with it and with our company. We reserve all rights in and to
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the Software that we don't expressly grant you in this Agreement. You agree not
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to, nor permit nor authorize any third party to: (i) sublicense, sell, rent,
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lease, transfer, assign, or distribute the Software to third parties; (ii) host
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the Software for the benefit of third parties; (iii) disclose or permit any
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third party to access the Software, except as expressly permitted in Section 2,
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above; (iv) hack or modify the License Key, or try to avoid or change any
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license registration process we may implement; (v) modify or create derivative
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works of the Software, or merge the Software with other software; (vi)
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disassemble, decompile, bypass any code obfuscation, or otherwise reverse
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engineer the Software or attempt to derive any of its source code, in whole or
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in part, except to the extent such activities are expressly permitted by law or
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applicable license notwithstanding this prohibition; (vii) modify, obscure, or
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delete any proprietary rights notices included in or on the Software or
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Documentation; (viii) otherwise use or copy the Software in a manner not
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expressly permitted by this Agreement; or (ix) use any Software that we license
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to you beyond its applicable License Term.
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4.Seats.
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Remember, only one User can use a Seat at a time. Multiple Users aren't allowed
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to use the same Seat, and only one human being can be associated with a
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particular User account. If you want to swap out, delete, or suspend a User, you
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can do that, and then assign a new User to the open Seat. If you find that you
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need more Seats, that's great – we're here to help! Just submit a new request
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through our website or via our sales team, and pay for the additional Seats
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(a new Order Form will be generated). If and when you add additional Seats to
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your subscription, you'll pay Fees for those seats at the then-current price,
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prorated for the balance of the applicable License Term. When the time comes to
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renew your Seats for another year-long License Term, we'll invoice you for all
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of your Seats at once, at the then-current price (we reserve the right to change
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our prices at any time, but the new prices won't affect you until it's time to
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renew your license for another year). You agree that any orders that you make
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(or that you authorize us to make on your behalf) for additional Seats during
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the term of this Agreement will be governed by this Agreement.
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5.Verification.
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From time to time, we may have reason to make sure that you're not using extra
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Seats without paying for them. You agree to cooperate with us to achieve that
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goal. To help us verify the number of Seats you're actually using, you agree to
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promptly give us any usage files and reports that your instance of the Software
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generates, if and when we ask for them. We might also (or instead) ask one of
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your officers to certify the number of Seats that you're actually using. You
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agree to provide such a certification if we ask for it. If we determine that
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you're using more Seats than you've paid for, in addition to any other remedies
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we might have at law or in equity, you agree to pay us the then-current Fees for
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the additional Seats you're using, starting from the date you began using each
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Seat.
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6.Government Users.
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No technical data or computer software is developed under this Agreement. The
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Software and Documentation have been developed solely with private funds, and
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are considered "Commercial Computer Software" and "Commercial Computer Software
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Documentation" as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3,
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and are licensed to the to the U.S. Government end user as restricted computer
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software and limited rights data. Any use, disclosure, modification,
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distribution, or reproduction of the Software or Documentation by the U.S.
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Government or its contractors is subject to the restrictions set forth in this
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Agreement.
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7.Delivery.
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Promptly after the applicable Order Effective Date, we'll make the Software and
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the License Key available for you to download on a secure, password-protected
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website. As Updates become available, we'll make those available for you to
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download on the same website. You're responsible for maintaining the
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confidentiality of all of your usernames and passwords, including the ones you
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use to download the Software. Take good care of them, because you agree that
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you'll be responsible for any activity that takes place using your usernames and
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passwords (whether you knew about it or not).
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8.Services.
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Our Services can help you get the most out of the Software. If you want
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Services, let us know, and we'll work with you to prepare a SOW that describes
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the date, time, location, and objectives of the Services, as well as the price.
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Each SOW will be binding once we both sign it, and you agree that any Services
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we provide to you (whether pursuant to a SOW or not) will be governed
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exclusively by the terms of this Agreement. In the event of any conflict
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between the terms of this Agreement and any SOW, the terms of this Agreement
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will control. Provided you comply with the terms of this Agreement (including,
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among other things, paying us the Fees you owe us), we'll perform the Services
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described in each SOW, according to the timeframes set forth in that SOW.
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We'll control the manner and means by which the Services are performed, and we
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reserve the right to determine which personnel we assign to perform Services for
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you.
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Provided we remain responsible for all of their acts and omissions, we can use
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third parties to help us perform the Services. You acknowledge that we will
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retain all right, title and interest in and to anything we use or develop in
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connection with performing Services for you, including, among other things,
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software programs, tools, specifications, ideas, concepts, inventions,
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processes, techniques, and know-how. To the extent we deliver anything to you
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during the course of performing Services, we grant you a non-exclusive,
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non-transferable, worldwide, royalty-free, limited-term license to use those
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deliverables during the term of this Agreement, solely in conjunction with your
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use of the Software.
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9.Term and Termination.
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9.1 Term.
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This Agreement starts on the Agreement Effective Date and will continue in
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effect for one (1) year (the "Initial Term"), at which time, so long as you
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choose to renew your Software license for additional License Terms (which, to be
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clear, you're under no obligation to do), this Agreement will automatically
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continue in effect for additional one (1) year terms (each, a "Renewal Term")
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until this Agreement is either terminated by a party or expires in accordance
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with this Section 8. We'll notify you at least sixty (60) days before the end of
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the Initial Term and each Renewal Term that it's time for you to renew your
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Software license. If you want to renew, let us know. We'll generate a new Order
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Form for you, and make a new License Key available for you to download that will
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let you use the Software for another License Term.
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9.2 Termination for Convenience;
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Automatic Expiration. Either of us can terminate this Agreement for our
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convenience at the end of the Initial Term or any Renewal Term by providing
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written notice to the other at least thirty (30) days before the end of the
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Initial Term or any Renewal Term. This Agreement will automatically expire
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without the requirement of notice if, at the end of the Initial Term or any
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Renewal Term, you decide not to pay the Fees required to renew your Seats for an
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additional License Term.
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9.3 Termination for Breach.
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We can terminate this Agreement immediately upon notice to you if you breach
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any part of it, and you fail to cure the breach within thirty (30) days of us
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notifying you of it. That said, there are certain kinds of breaches that we take
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much more seriously, and that can really damage us. We therefore reserve the
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right to terminate this Agreement immediately upon written notice to you, but
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without giving you a cure period, if you breach any of the terms of this
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Agreement relating to our intellectual property (including your compliance with
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the license grant and any license restrictions) or our Confidential Information
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(defined below).
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9.4 Effect of Termination.
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When this Agreement terminates or expires: (i) the License Term for any Software
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in your possession will immediately end, and any outstanding SOWs will
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immediately terminate; (ii) you'll no longer have the right to use the Software,
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and any licenses we grant you in this Agreement will automatically cease to
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exist as of the date of termination/expiration; (iii) if you owed us any money
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prior to termination/expiration, you'll need to pay us all that money
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immediately; (iv) you'll destroy all copies of the Software in your possession
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or control, and certify in writing to us that you've done so; and (v) each of
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us will promptly return to the other (or, if the other party requests it,
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destroy) all Confidential Information belonging to the other. You'll still be
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able to access the Software to migrate your data for ninety (90) days after
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termination or expiration of this Agreement, but you won't be allowed to use the
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Software on a production basis during that time. We encourage you to keep
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copies of your data outside of the Software itself, because if the Software gets
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disabled, you won't have access to the data you've stored there (and we won't be
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liable to you if that happens). Sections 1, 3, 5, 6, 8, 9.2, 9.3, 9.4, 11, 12.2,
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and 13-17 will survive the termination or expiration of this Agreement for any
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reason.
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10.Support.
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10.1 Support Times.
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Provided that you've paid us the Fees you owe us, we'll provide you with
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technical support for the Software twenty-four (24) hours per day, five (5) days
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per week, excluding weekends and national U.S. holidays. We currently only offer
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support via email (write to us at mailto:support@c9.io) or web-based ticketing
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(through https://c9.io/support). You can contact our amazing support team to
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help answer your questions on installing and using the Software, identifying and
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verifying the causes of suspected errors in the Software, and helping you find
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workarounds for Software malfunctions. Though we'll do our best to respond to
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automated support requests, we typically need more information than an automated
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ticketing system can give us to solve your issue. Whenever possible, please
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initiate any support requests from a person or machine that our support team can
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interact with. We like the personal touch.
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10.2 Updates.
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We'll make Updates available to you on the same secure website where you
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downloaded the Software and the License Key.
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10.3 Exclusions.
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We might not be able to correct every problem we find, but we'll use our
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reasonable efforts to correct any material, reproducible errors in the Software
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that you make us aware of. We might ask for your help in reproducing the error
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for us. Please - don't do things with our Software that would make it harder for
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us to help you. We won't be responsible for supporting you in those
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circumstances, which include, among other things: (i) someone (other than us)
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modifying the Software; (ii) changing your operating system or environment in a
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way that adversely affects the Software or its performance; (iii) using the
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Software in a manner for which it was not designed, or other than as authorized
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under this Agreement; or (iv) accident, negligence, or misuse of the Software.
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We're only required to support a given version of the Software for a year from
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the date of its commercial release, or six months from the commercial release
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of the next Update, whichever is longer. If you want support for earlier
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versions of the Software, we'll try to help you if we can, but you'll need to
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pay us for that help at our then-current rates.
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11.Payment.
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You agree to pay the Fees to us in full, without deduction or setoff of any
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kind, in U.S. Dollars (unless the Order Form says otherwise), within 30 days of
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the date of the invoice we send you related to the applicable SOW or Order Form.
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Amounts payable under this Agreement are nonrefundable, except as provided in
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Section 12.1. If you don't pay us on time, we reserve the right, in addition to
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taking any other action that we see fit, to charge you interest on past due
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amounts at 1.0% per month or the highest interest rate allowed by law, whichever
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is less, and to additionally charge all expenses of recovery. You are solely
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responsible for all taxes, fees, duties and governmental assessments (except for
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taxes based on Cloud9's net income) that are imposed or become due in connection
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with the subject matter of this Agreement.
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12.Limited Warranties
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12.1 Limited Warranties.
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We offer you (and only you) the following limited warranties: (i) that the
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unmodified Software, at the time we make it available to you for download, will
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not contain or transmit any malware, viruses, or worms (otherwise known as
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computer code or other technology specifically designed to disrupt, disable, or
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harm your software, hardware, computer system, or network); (ii) that any
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Services we perform for you under this Agreement will be performed in a good and
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workmanlike manner, by appropriately qualified personnel (you just need to let
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us know about a problem within thirty (30) days of the date the Services were
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performed); and (iii) that, for ninety (90) days from the date the Software is
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made available for download, the unmodified Software will substantially conform
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to its Documentation. We don't warrant that your use of the Software will be
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uninterrupted, or that the operation of the Software will be error-free.
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These warranties won't apply if you modify the Software, or if you use the
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Software in any way that isn't expressly permitted by this Agreement and the
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Documentation.
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Our only obligation, and your only remedy, for any breach of these limited
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warranties will be, at our option and expense, to either (i) repair the
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Software; (ii) replace the Software; or (iii) terminate this Agreement with
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respect to the defective Software, and refund the Fees you've paid for the
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defective Software during the then-current License Term once you've returned it
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to us (or destroyed it).
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12.2 Disclaimer.
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THE LIMITED WARRANTIES DESCRIBED ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH
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RESPECT TO THE SOFTWARE, SERVICES AND OUR TECHNICAL SUPPORT. WE DON'T MAKE ANY
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OTHER WARRANTIES, AND WE HEREBY SPECIFICALLY DISCLAIM ANY OTHER WARRANTIES,
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WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES
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OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
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OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF
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TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU GET FROM US
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OR ANYWHERE ELSE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN
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THIS AGREEMENT.
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13.LIMITATION OF LIABILITY.
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13.1 Waiver of Consequential Damages.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE
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TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
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CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR
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THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH
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THIS AGREEMENT, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM
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BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
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OTHERWISE, AND WHETHER OR NOT WE'VE BEEN ADVISED OF THE POSSIBILITY OF SUCH
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DAMAGES.
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13.2 Limitation of Total Liability.
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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE
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LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS AGREEMENT, FROM ALL CAUSES OF
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ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE
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FEES YOU'VE ACTUALLY PAID US DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING
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RISE TO SUCH LIABILITY.
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13.3 Basis of Bargain.
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You understand and agree that we've set our prices and entered into this
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Agreement with you in reliance upon the limitations of liability set forth in
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this Agreement, which allocate risk between us and form the basis of a bargain
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between the parties.
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14.Indemnification.
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14.1 Our Indemnification Obligation.
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We'll defend or settle, at our option and expense, any third-party claim brought
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against you to the extent that it's based on an allegation that your use or
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possession of the Software as permitted under this Agreement infringes a
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copyright or misappropriates a trade secret of any third party (each, a "Claim"),
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and, subject to Section 13, we'll pay all damages and costs (including
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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.
|
||
|