On-Premise End User License Agreement

End User License Agreement - On Premise

CloudNine On-Premises Software End-User License Agreement

Version 20250831

This On-Premises Software End-User License Agreement ("Agreement") is entered into between you (either an individual or a single entity, referred to herein as Customer) and Cloud9 Discovery, LLC (dba CloudNine) for the Software referenced in a corresponding Order Agreement, the terms of which are incorporated by reference as if fully set forth herein.

 

Capitalized terms used in this Agreement, which are incorporated herein by reference, are defined in the last section of this Agreement.

1.    LICENSE AND RIGHT TO USE

1.1 License Grant

Subject to the terms and conditions of this Agreement, including the payment obligations outlined in the Order Agreement and the conditions set forth herein, CloudNine grants to Customer a limited, personal, non-exclusive, non-transferable, non-assignable, and non-sublicensable license to: (a) install and use the Software in executable form, solely for Customer’s internal business operations, and only up to the number of Software licenses, concurrent Authorized User seats, or options (collectively, “Licenses”) specified in the applicable Order Agreement; (b) use the accompanying Documentation in connection with Customer’s authorized use of the Software; and, (c) permit Customer’s Authorized Users to access and use the Software, whether locally or remotely, per this Agreement. Additionally, CloudNine will provide Customer with Maintenance and Support Services as outlined in this Agreement.

1.2 Reservation of Rights

Except for the limited license rights expressly granted in Section 1.1, all rights, title, and interest in and to the Software, Documentation, and any related intellectual property are reserved by CloudNine. No other rights are granted, whether by implication or otherwise.

1.3 Proprietary Notices and Backup Copies

Customer shall not remove or alter any copyright, trademark, or other proprietary rights notices appearing on the Software or Documentation. Any copies of the Software made by Customer, including backup copies, must include all such proprietary notices. Customer may create one (1) backup copy of the Software solely for archival purposes, provided that such copy is not used for any other purpose and remains subject to the terms of this Agreement. The right to retain a backup copy is non-transferable unless Customer transfers all rights in the Software per this Agreement.

2.    USE RESTRICTIONS AND LIMITATIONS

2.1 Restrictions

By accepting the License granted by CloudNine, Customer agrees it may not access the Software if Customer is a direct competitor of CloudNine with a product competitive to CloudNine or a product powered by CloudNine except with CloudNine's prior written consent. In addition, Customer may not access or use the Software for purposes of benchmarking, monitoring its availability, performance, or functionality, or for any other competitive analysis.

 

Customer agrees that Customer will not, without the prior written consent of CloudNine, (a) sell, license, sublicense, distribute, lease, or otherwise transfer or allow the transfer of the Software, or any backup copy, to third parties; (b) use the Software in any manner inconsistent with the rights granted above, including but not limited to use of the Software in a service bureau, renting, leasing, lending or using the Software to provide commercial hosting services, or using more than the number of Licenses or permit access to the Software by more than the number of Authorized Users; (c) modify or create derivative works of the Software or Documentation or separate the Software's component parts for use on more than one device; or (d) unless expressly permitted under applicable law without the possibility of contractual waiver, attempt to decompile, disassemble, or reverse engineer the Software, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure, or organization from the Software or (ii) defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including without limitation any such mechanism used to restrict or control the functionality of the Software.

 

Customer may use the Software only for the Customer’s internal business purposes and shall not interfere with or disrupt the integrity or performance of the Software or the data contained therein or attempt to gain unauthorized access to the Software.

2.2 Partner Use Exception

If Customer is a member of the Partner Program, Customer is granted a revocable right to use the Authorized Products to provide services to its clients in the normal course of business. This exception overrides any restrictions in this Agreement. Customer’s clients may only use the Licensed Software by the same rights and restrictions that apply to Customer. This right may be revoked by CloudNine at any time.

2.3 Reactivation

The Software may include technological measures designed to prevent unauthorized use. The Customer understands that they may need to activate or reactivate the Software from time to time.

2.4 Transfer or Assignment

Neither Party may assign this Agreement without first obtaining the prior written approval of the other Party. Notwithstanding the foregoing, CloudNine may assign this Agreement upon providing notice to Customer but not requiring Customer’s consent to: (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that would result in a direct competitor of CloudNine directly or indirectly owning or controlling 50% or more of Customer shall entitle CloudNine to terminate this Agreement for cause immediately upon written notice.

Any permitted transfer of the Software must include the Software and Documentation, any backup copies, Updates, Upgrades (if applicable), and a copy of this Agreement. Written notice of the permitted transfer must be sent by Customer to CloudNine within fifteen (15) business days of the transfer, specifying the new licensee, who must agree in writing to be bound by the terms and conditions of this Agreement. As a condition to assignment, each Party's assignee must agree in writing to assume and be bound by all terms and conditions of this Agreement.

2.5 Customer Responsibilities

Customer is responsible for all activity occurring under Customer’s Authorized User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Customer’s use of the Software, including those related to data privacy, international communications, and the transmission of technical or personal data.

3.    PHONE HOME CAPABILITY

CloudNine Software may include a "phone home" feature that summarizes basic configuration and operational information, such as version number, and periodically send this information via the internet to CloudNine. The content transmitted contains no user-stored data – only information about the version. The Customer acknowledges and accepts this feature as part of this Agreement. Usage-based licensees agree to have this feature report the case number and volume of data, and basic configuration and operational information, such as version number.

4.    INTELLECTUAL PROPERTY OWNERSHIP

CloudNine alone (and its licensors, where applicable) shall own all rights, title, and interest, including all related Intellectual Property Rights, in and to CloudNine technology, the Content, the Software, and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Software. The Parties recognize and agree that CloudNine provides services for multiple customers and, while providing the Software herein, may develop intellectual property solutions (based on Customer’s suggestions, or otherwise) that have general applicability beyond the specific requirements of Customer. All Intellectual Property Rights in and to such generally applicable solutions, including any improvements, modifications, or derivative works thereof, shall remain solely and exclusively owned by CloudNine. This Agreement is not a sale and does not convey to Customer any ownership rights in or related to the Software, the CloudNine technology, or the Intellectual Property Rights owned by CloudNine. The CloudNine name, the CloudNine™ or CloudNine logo, and the product names associated with the Software are trademarks of CloudNine or third parties, and no right or license is granted to use them.

Each Party shall retain ownership of all its Marks and other intellectual property rights. Subject to the terms and conditions of this Agreement, each Party grants to the other a limited, non-exclusive, and non-transferable right and license to use, reproduce and display each other's Marks in connection with the performance of this Agreement. A Party's use of the other's Marks shall be in accordance with the specifications provided for such use by the Party whose Marks are being used. If such specifications are not provided, the Party whose Marks are being used may provide specifications regarding the use of their Mark.

5.    COPYRIGHT AND PROPRIETARY INFORMATION

CloudNine and its suppliers reserve all the rights with respect to the Software, Documentation, and any copies under all applicable national and international laws and treaties for the protection of Intellectual Property Rights, including, but not limited to, trade secrets, copyrights, trademarks, and patents. Any rights not expressly granted to Customer in this Agreement are retained by CloudNine and its suppliers.

 

Except as otherwise provided in this Agreement, Customer shall not cause or permit unauthorized copying, reproduction, or disclosure of any portion of the Software or Documentation, or the delivery or distribution of any part thereof, to any third party, for any purpose, without the prior written permission of CloudNine. This restriction shall remain in effect beyond the termination of this Agreement.

6.    CONFIDENTIALITY

“Confidential information” means all information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. For the avoidance of doubt, Confidential Information includes, but is not limited to: (a) information regarding Customer or CloudNine’s business and customers; (b) the Software and related Documentation; and (c) either Party’s technical and business information relating to inventions or software, research and development, future product specifications, implementation methodologies, engineering processes, costs, profit or margin information, and marketing and future business plans. Confidential Information excludes information that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without breach of any obligation to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information. Customer Confidential Information includes, without limitation, customer data.

 

The Receiving Party shall: (i) at all times protect the confidentiality of the Disclosing Party's Confidential Information using no less than reasonable care; and (ii) not use Confidential Information of the Disclosing Party except to the extent necessary to exercise its rights or fulfill its obligations under this Agreement. To the extent necessary under this Agreement, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the Receiving Party's employees or subcontractors who are bound by written obligations of confidentiality and non-use restrictions at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof if permitted by applicable law, and shall reasonably cooperate with the Disclosing Party to seek confidential or other protective treatment. If any Party becomes aware of any actual or threatened breach of this Agreement (including any threatened or actual unauthorized use or disclosure of any Confidential Information), or in the event of any loss of, or inability to account for, Confidential Information previously received, it will immediately notify the other Party in writing. It will reasonably cooperate with any such other Party's efforts to seek appropriate injunctive relief or otherwise investigate, prevent, or curtail such threatened or actual breach, or to recover its Confidential Information. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.

 

Each Party agrees that a threatened or actual breach of this Agreement involving unauthorized use and disclosure of Confidential Information or information protected under this Agreement could cause the other Party irreparable injury not wholly compensable by monetary damages and for which the other Party may have no adequate remedy at law. Accordingly, each Party specifically agrees that the other Party may be entitled to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting security and without prejudice to such other rights as may be available under this Agreement or any applicable law.

 

The obligations of confidentiality outlined in this section will remain in effect even after this Agreement has ended. Specifically, each Party's duty to protect the other's Confidential Information remains in effect until that information falls into one of the exceptions outlined herein.

7.    EXPORT

CloudNine uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer will, and will assure that all Authorized Users of this Software acknowledges and agrees that the Software shall not be used. None of the underlying information, Software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, the Customer represents and warrants that the Customer is not located in, under the control of, or a national or resident of an Embargoed Country or a Designated National. The Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining any necessary licenses to export or re-export, as required.

 

This Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

 

CloudNine and its licensors make no representation that the Software is appropriate or available for use in other locations. If Customer uses the Software from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Software, is or will be used for nuclear activities, chemical or biological weapons, or missile projects unless specifically authorized by the United States government for such purposes.

 

Customer will not ship, transfer, or export the Software to any country, nor will Customer use the Software in any manner prohibited by the United States Export Administration Act or any other export laws, national or international, restrictions, or regulations that apply to the Software. Customer agrees to indemnify and hold CloudNine harmless for any violation of this provision.

8.    U.S. GOVERNMENT RIGHTS

The Software and Documentation are "Commercial Items" as defined in 48 CFR 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation" as those terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. The rights to the Software and Documentation are granted to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

9.    LIMITED WARRANTY

CloudNine warrants that it has sufficient rights to grant the rights in the Software pursuant to this Agreement; CloudNine further warrants that the Software will operate substantially per its written specifications. No warranty is made that the Software will run uninterrupted or error-free. The warranty period for the Software and Documentation is ninety (90) days from the date the Software is first made available for Customer use ("Warranty Period").

 

CloudNine's and its suppliers' entire liability and Customer’s exclusive remedy for any breach of this limited warranty or for any other breach of this Agreement or for any other liability relating to the Software shall be, at CloudNine's option from time to time exercised subject to applicable law, (a) repair, or (b) replacement. The customer will receive the remedy elected by CloudNine without charge, except that the Customer is responsible for any expenses incurred (e.g., shipping costs for the Software to CloudNine). This limited warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, or malware. Any replacement Software will be warranted for the remainder of the original warranty period or forty-five (45) days, whichever is longer, and CloudNine will use commercially reasonable efforts to provide the Customer with a remedy within a commercially reasonable time of Customer’s compliance with CloudNine's warranty remedy procedures. Outside of the United States or Canada, neither these remedies nor any product support services offered by CloudNine are available without proof of subscription from an authorized international source.

 

THE PRECEDING WARRANTIES ARE THE ONLY WARRANTIES RELATED TO THE PROGRAM, DOCUMENTATION, AND SUPPORT SERVICES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

If applicable law in Customer’s jurisdiction provides for any implied warranties or conditions that cannot be disclaimed, such warranties or conditions shall apply only to defects discovered during the applicable warranty period. No implied warranties or conditions shall apply to any defects discovered after that period. Some jurisdictions do not permit limitations on the duration of an implied warranty or condition, so the above limitation may not be applicable. This limited warranty provides the Customer with specific legal rights, and the Customer may also have other rights that vary by jurisdiction.

 

CloudNine is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and/or limiting obligations, warranties, and liability as provided in this Agreement, but in no other respects and for no other purpose.

10. LIMITATIONS OF LIABILITIES

IN NO EVENT WILL CLOUDNINE, ITS PROGRAM DEVELOPERS, OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY, OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOSS OF OR DAMAGE TO DATA, PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE SOFTWARE, DOCUMENTATION, OR ANY APPLICABLE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUDNINE'S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO CLOUDNINE UNDER THIS AGREEMENT. NO ACTION OR PROCEEDING AGAINST CLOUDNINE MAY BE COMMENCED MORE THAN ONE YEAR AFTER THE CLAIM ARISES, EXCEPT FOR CLOUDNINE CLAIMS RELATING TO THE COLLECTION OF FEES DUE AND PAYABLE BY THE CUSTOMER. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.

 

Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer or CloudNine. To the extent any such laws apply and cannot be waived, the limitations and exclusions outlined in this section shall apply to the fullest extent permitted by law.

11. MUTUAL INDEMNIFICATION

The Customer shall indemnify and hold CloudNine, its licensors and each such Party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the a Customer’s data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the Customer of its representations and warranties; or (iii) a claim arising from a breach by Customer or Customer’s Authorized Users of this Agreement, provided in any such case that CloudNine (a) gives written notice of the claim promptly to the Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release CloudNine of all liability and such settlement does not affect CloudNine's business or Software); (c) reasonably provides to Customer all available, relevant information and assistance; and (d) has not settled or resolved such claim.

 

CloudNine shall indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that the Program, Software, or Documentation infringes the Intellectual Property Rights of a third party; provided that the Customer (a) promptly give written notice of the claim to CloudNine; (b) give CloudNine sole control of the defense and settlement of the claim (provided that CloudNine may not settle or defend any claim unless it unconditionally releases the Customer of all liability); (c) provide to CloudNine all available information and assistance; and (d) have not compromised or settled such claim. CloudNine shall have no indemnification obligation, and the Customer shall indemnify CloudNine pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Program with any of the Customer’s products, service, hardware, or business process(es) not approved by or intended by CloudNine to be combined with such products, service, hardware, or business process(es).

12. TERM AND TERMINATION

The term of this Agreement and the Customer's rights to use the Program shall commence on the Effective Date of the applicable Order Agreement. It shall continue for the initial term specified in the Order Agreement (the "Initial Term"). Following the Initial Term, this Agreement shall automatically renew for successive periods equal to the Initial Term (each a "Renewal Term"), unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Initial Term or any subsequent Renewal Term. Upon termination or expiration of this Agreement, all rights granted to Customer will immediately cease. The Customer must stop using the Program and return or destroy any related materials as instructed by CloudNine. Any provisions that, by their nature, should survive termination (such as those relating to ownership, confidentiality, and limitation of liability) will remain in effect.

 

Subject to any terms to the contrary outlined in the Order Agreement, the Agreement may only be terminated as follows:

1. a) Either Party may terminate the Agreement if the other Party materially breaches the Agreement and does not cure the breach within thirty (30) days of written notice. The notice must specify the nature of the breach, the provision of the Agreement that was breached, and the actions required to cure the breach. If the breach is not cured within the specified cure period, the termination shall be effective as stated in the notice.
2. b) Either Party may terminate the Agreement immediately upon written notice if the other Party (i) becomes insolvent or admits in writing its inability to pay its debts as they become due; (ii) files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it and which petition is not dismissed within 45 days.; (iii) seeks or consents to the appointment of a receiver, trustee, custodian, or liquidator for all or substantially all of its assets; or (iv) the other party makes a general assignment for the benefit of creditors.

Notwithstanding any other provision in this Agreement, neither party shall have the right to terminate this Agreement for its convenience.

 

The Parties agree that, in the event Company terminates this Agreement due to Customer’s failure or default in the performance of Customer’s obligations, all remaining payments due for the relevant term shall accelerate and become due immediately. Any prepaid fees shall not be refunded.

 

If Customer fails to pay any invoiced amount within the timeframe indicated in the Order Agreement, CloudNine shall have the right, at its sole option, to either suspend or terminate Customer’s access to the Software and any applicable Maintenance and Support Services.

1. a) Suspension. If Customer fails to pay any invoice in full, CloudNine may suspend Customer's access to the Software and CloudNine's obligations under this Agreement until all outstanding amounts are paid in full. During any such suspension, CloudNine will have no obligation to provide the Software any Maintenance and Support Services, and Customer will not be entitled to any refund or credit for fees that would have otherwise accrued.
2. b) Termination. Without prejudice to any other rights or remedies, CloudNine reserves the right to terminate this Agreement if Customer fails to pay any amount due hereunder within ten (10) days of the due date indicated on the invoice. Termination under this section shall not relieve Customer of its obligation to pay any fees accrued up to the date of termination.
3. c) Customer shall reimburse CloudNine for all reasonable costs and expenses, including reasonable attorneys' fees, incurred by CloudNine in collecting any past due amounts.

If Customer’s Subscription expires without renewal or is otherwise terminated, the Customer will no longer have the right to access and use the Software or the online subscriber portal.

The parties acknowledge and irrevocably agree that any statutory, regulatory, or common law rights or protections that would modify, invalidate, or override any term of this Agreement—including any rights related to automatic renewal restrictions or unilateral termination without cause—shall not apply. The parties expressly and knowingly waive any such rights or protections and covenant not to assert them in any dispute arising under or related to this Agreement. This waiver is made with the intent that the terms of this Agreement, as written, shall exclusively govern the parties’ relationship, notwithstanding any potentially conflicting laws of any jurisdiction.

13. MISCELLANEOUS

13.1 General

No text or information set forth on any other purchase order, preprinted form, or other document (other than the CloudNine Order Agreement) shall add to or vary the terms and conditions of this Agreement unless both Parties execute such document.

13.2 Governing Law

Any action, suit, or proceeding arising under or in connection with this Agreement must be commenced within one (1) year after the claim or cause of action arises. This Agreement shall be governed in all respects by the laws of the State of Texas without regard to conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

13.3 Severability

If any term of this Agreement is held invalid or unenforceable for any reason, the Parties agree that such invalidity will not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.

13.4 Waiver

The failure of CloudNine to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CloudNine in writing. All waivers must be executed in writing, and then only by persons executing this Agreement or other duly authorized agents or representatives. The waiver by either Party of a breach or a violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach or violation.

13.5 Confirmation of Compliance

Upon request from CloudNine or CloudNine’s Reseller and within thirty (30) days of such request, Customer shall, provide a comprehensive written certification and supporting documentation demonstrating that all use of the Software at the time of the request aligns with the scope and terms of Customer's valid and authorized rights granted by CloudNine under this Agreement.

13.6 Entire Agreement

This Agreement, including all attached exhibits, schedules, and any mutually executed Order Agreements or similar documents that specifically reference this Agreement, constitutes the entire agreement and understanding between the Parties with respect to the Software, the Maintenance and Support Services (if any), and the subject matter hereof. This Agreement supersedes all prior and contemporaneous communications, proposals, representations, and agreements, whether oral or written, relating to the Software, the Maintenance and Support Services, or any other subject matter covered by this Agreement. No amendment to or modification of this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of both Parties.

13.7 Parties Bound

This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective legal representatives, heirs, legatees, successors, and permitted assignees.

13.8 Force Majeure

Except concerning Customer obligation to make timely payments, neither Party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation, facilities, acts or omissions of carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing.

13.9 Notices

All notices and other communications required or permitted to be given under this Agreement shall be in writing. They shall be deemed to have been duly given when addressed as indicated below and (a) sent by nationally recognized overnight courier service, (b) sent by certified or registered mail, return receipt requested, postage prepaid, or (c) sent by email (with confirmation of receipt requested).

If to CloudNine:	If to Customer:
CloudNine – Attn: Abhishek Jhaver 12848 Queensbury Lane, Suite 208 Houston, Texas 77024   Email: ajhaver@cloudnine.com	Notices to Customer shall be sent to the contact information provided by Customer in the applicable Order Agreement. The customer is responsible for ensuring that its contact information on the Order Agreement is accurate and up-to-date.

 

Either party may change its address, email address, or contact person for notification purposes by giving written notice of such change to the other party per this Section.

14. INDEPENDENT CONTRACTORS

All work performed under the Agreement by a Party shall be performed as an independent contractor and not as an agent of the other. No persons furnished by either Party shall be considered the other Party's employees or agents, and each Party shall be responsible for its own and its employees' compliance with all laws, rules, and regulations involving the employment of labor, working conditions, payment of wages, and payment of taxes, such as unemployment, social security, and other payroll taxes, including applicable contributions from such persons when required by law.

15. SUPPORT HOURS

Monday through Friday 8 am CT to 6 pm CT, excluding US Federal holidays.

16. CONTACT INFORMATION FOR SUPPORT

16.1 Concordance

Email concordancesupport@cloudnine.com or call 1-713-766-5638

16.2 LAW

Email lawsupport@cloudnine.com or call 1-713-766-5638

17. RESPONSE TIMES

Telephone calls are responded to within two hours during business hours. Email communication is responded to within two hours during business hours.

18. SUPPORT WEBSITE AVAILABILITY

CloudNine’s support website is available to users with a working internet connection 24 hours a day, 365 days a year, and is available 99.9% of the time.

19. DEFINITIONS

Affiliate means a corporation, partnership, or other legal entity that controls, is controlled by, or is under common control with that Party, either directly or through another Affiliate, but only while that control relationship exists; "control" of an entity means the power to direct the management and policies of that entity through a controlling vote on the board of directors or similar governing body of that entity or the ownership of interests entitled to more than fifty percent (50%) of the votes of that entity.

Authorized Products means the products listed on executed Order Agreement(s).

Authorized Users means Customer’s employees, agents, representatives, contractors, or customers to whom Customer provides access to the Software.

Content means all materials, information, and images contained on the Site, including but not limited to trademarks, copyrightable material, advertisements, data, text, graphics, files, photos, software, and video.

CPU refers to a single computer's central processing unit or a logical partition (if a computer or server has more than one processor or logical partition).

Documentation refers to written guides in any form or medium that describe the use and operation of a Software, along with any related supporting documentation.

Fix(es) means a Workaround and/or additional or replacement lines of software code provided by CloudNine to remedy a defect in the Software that caused it to not operate substantially per its written specifications.

Intellectual Property Rights means all current and future patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in- part), copyrights (including but not limited to rights in audiovisual works and moral rights), trade secrets, trademarks, service marks, trade names, and all other intellectual property rights and proprietary rights, whether arising under the laws of the United States or any other country, state or jurisdiction.

Maintenance and Support means the delivery of Updates and technical support to be provided pursuant to the terms of this Agreement repairing or replacing Software that does not operate following its written specifications.

Marks means collectively the domain names, trademarks, trade names, service marks, trade dress, logos, and the like used or provided by either Party for use in connection with this Agreement.

Order Agreement means the mutually agreed-upon documentation that specifies the Customer's purchase of the Software, including, but not limited to, the number of units, license fees, and any related services. The Order Agreement may take the form of a paper order form, an order agreement proposal, a quote, or information provided verbally by the Customer and subsequently confirmed by CloudNine. The Order Agreement may also specify the license term. The Order Agreement is incorporated by reference into and forms an integral part of this Agreement.

Partner Program Member means a legal entity or individual that has been granted permission by way of executing a Partner Software Agreement to promote, sell or otherwise distribute CloudNine's products.

Problem means Software that does not operate substantially following its written specifications.

Service Provider means a legal entity or individual that rents, subscribes, or licenses software applications from CloudNine or other third-party companies and packages them with service and/or other software for sale to its customers.

Software means computer programs identified herein or on any associated Order Agreement, in machine-readable form for use on designated CPU(s) or by Authorized Users including (1) the original and all whole or partial copies, (2) components, (3) audio-visual content (such as images, text, recordings, or pictures), (4) related software materials, and (5) software use documents or keys, and documentation. The Software does not include any version of source code or any operating system software installed on the CPU.

Source Code means a high-level program that is not machine-readable.

Subscription means a license to access and use the Software, subject to this Agreement, for the Term specified in the Order Agreement, which use is conditioned on payment of a Subscription Fee. A Subscription may be renewed by paying the Subscription Fee for the succeeding period. A Subscription includes Maintenance and Support at no additional charge.

Subscription Fee means the amount payable by Customer for the access and use of the Software for a period specified in the Order Agreement.

System Administrator means Customer employee or agent with sufficient training and experience to identify and isolate Problems and to provide sufficient information and assistance to CloudNine to be able to reproduce such Problems. The System Administrator or his/her delegate shall be the single point of contact with CloudNine when reporting Problems. CloudNine may require the Customer to appoint a new System Administrator if CloudNine reasonably determines that the current System Administrator does not possess the necessary training or experience to perform the required functions or cannot communicate effectively with CloudNine's support personnel.

Updates mean subsequent releases of Software which are generally made available for supported Software, other than media and handling charges, to add new features and add other enhancements to the Software. Updates are generally designated by a change in the number appearing to the right of the initial decimal point in the Software’s version number (i.e., 1.1 vs. 1.0).

Upgrades mean subsequent releases of the Materials that contain an improvement in the Materials that generally includes enhancements and new functionality and is generally designated by a change in the number appearing to the left of the initial decimal point in the Software’s version number (i.e., 2.0 vs. 1.0). Upgrades that include Changes to the base code or platform or changes that include interoperability with other applications or functionality provided by third-party code ("Core Upgrades") may be provided at incremental additional cost to Customer.

Workaround means a temporary solution to a Problem.