Cloud9 IDE, LLC Terms of Service
1. Acceptance of Terms. By using this Web site (the “Site”) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Service”) made available or enabled via the Site by Cloud9, or merely browsing the Site, you agree to these Terms of Service. You may not use the Service, or accept these Terms of Service, if (a) you are not of legal age to form a binding contract with Cloud9 IDE, LLC; or (b) you are prohibited by law from receiving or using the Service. If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms of Service, in which case “you” or “your” shall refer to such entity. Cloud9 IDE, LLC makes the Service available only if you have registered for an account. The Service may also be subject to a subscription or other agreement, posted guidelines, rules or terms of service (“Additional Terms”). If there is any conflict between these Terms of Service and the Additional Terms, the Additional Terms take precedence in relation to the Service. These Terms of Service, and any applicable Additional Terms, are referred to collectively as the “Terms.”
2. Modification of the Terms. Cloud9 IDE, LLC may change the Terms from time to time at its sole discretion, and if Cloud9 IDE, LLC makes any substantial changes, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Service. Cloud9 IDE, LLC may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Site or the Service constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms.
3. Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
3.1. “Content” means, without limitation, any and all information, data, software code, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.
3.2. “Customer Content” means any Content, including Project Content, provided, imported or uploaded to, or otherwise used by you or on your behalf with the Services.
3.3 “Documentation” means all specifications, user manuals, and other technical materials relating to the Services.
3.4 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
3.5 “Named Users” means Users that have been specifically identified by you and for whom you will pay the applicable fee.
3.6 “Open Source Project” means a Project that is made available under the terms of a license meeting the definition of an open source license as promulgated by the Open Source Initiative.
3.7 “Order Form” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form and specifying, among other things, the number of licenses and other service contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties each order form to be incorporated into and become a part of these Terms.
3.8 “Project” means a software project created by a User on the Service.
3.9 “Project Administrator(s)” means, with respect to a particular Project, those Users designated by you who are authorized to assign access rights to Users and otherwise administer the Project.
3.10 “Project Content” means, with respect to a particular Project, any Content provided, imported or uploaded to the Service in connection with such Project.
3.11 “User” means a user of the Service.
4.1 Project License. When you create a Project using the Service, you must designate the license pursuant to which licensees obtain rights to the Project Content (“Project License”). If the Project License meets the definition of an open source license as promulgated by the Open Source Initiative, you may designate the Project as an Open Source Project subject to Section 4.3 (Open Source Projects).
4.2 Access Rights. When you create a Project using the Service, you will be designated as the initial Project Administrator for such Project with the right to designate additional Project Administrators. Through the Site, each Project Administrator may assign to, or revoke from, other Users certain access rights with respect to a Project for which such User is a Project Administrator.
4.3 Open Source Projects. If you designate your Project as an Open Source Project, (a) you agree that, despite any settings a Project Administrator may have made with respect to access rights, all Users will have the right to view the Project and/or copy the Project to create a derivative project; (b) you acknowledge and agree that Cloud9 IDE, LLC may list the Project on the Site; (c) you acknowledge and agree that the Project may be indexed by search engines; and (d) you hereby grant each User who accesses, downloads, or otherwise obtains any Project Content using the Services a license to such Project Content in accordance with the applicable Project License.
5. License Grant and Restrictions
5.1 License Grant. Subject to the terms and conditions of these Terms, Cloud9 IDE, LLC grants you a non-exclusive, non-transferable license to use the Service solely for your internal business purposes during the Term.
5.2 Limitations. You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service (including, without limitation, any external websites that contain third party content and that are linked to via the Service); (d) except as permitted by applicable law, reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) with respect to a particular Project, exceed or attempt to exceed the scope of the access rights granted to you for such Project; (f) without Cloud9 IDE, LLC’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (h) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means. Except as expressly set forth in these Terms, no express or implied license or right of any kind is granted to you regarding the Service or any part of the Service.
5.3 License to Cloud9 IDE, LLC Content. Certain Content is provided through the Service by Cloud9 IDE, LLC. Subject to the terms and conditions of these Terms, Cloud9 IDE, LLC hereby grants you a non-exclusive, non-transferable license to view, download and print Content provided by Cloud9 IDE, LLC (“Cloud9 Content”), subject to the following conditions: (a) you may access and use the Cloud9 Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the Cloud9 Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the Cloud9 Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the Cloud9 Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the Cloud9 Content apart from their accompanying text. Cloud9 reserves the right to revoke the authorization to view, download and print the Cloud9 IDE, LLC Content at any time. The rights specified above are not applicable to the design, layout or look and feel of the Site. Such elements of the Site are protected by Intellectual Property Rights and may not be copied or imitated in whole or in part. No mark, graphic, sound or image from the Site may be copied or retransmitted unless expressly permitted by Cloud9 IDE, LLC.
5.4 License to Other User Content. Certain areas of the Site, such as the general wiki and the forums, may allow Users to share Content with other Users. Subject to the terms and conditions of these Terms, Cloud9 IDE, LLC hereby grants you a non-exclusive, non-transferable license to view, download and print Content (other than Project Content) provided by other Users (“Other User Content”), subject to the following conditions: (a) you may access and use the Other User Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the Other User Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the Other User Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the Other User Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the Other User Content apart from their accompanying text. Cloud9 IDE, LLC reserves the right to revoke the authorization to view, download and print the Other User Content at any time.
5.5 License to Project Content. Your rights with respect to any Project Content to which you have access is governed solely by the terms and conditions of the Project License specified for such Project Content; provided that if no Project License is specified, such Project Content will be subject to Section 5.4 as such Section applies to Other User Content.
5.6 Usernames and Passwords. When you register, Cloud9 IDE, LLC will ask you to provide a unique username and password to enable you to access the Service pursuant to these Terms. Cloud9 IDE, LLC reserves the right to require you to change your username and password in Cloud9 IDE, LLC’s sole discretion from time to time. You are responsible for maintaining the confidentiality of your username and password, and are solely responsible for all activities that occur under your username. You agree (a) not to allow a third party to use your account, username or password at any time; and (b) to notify Cloud9 IDE, LLC promptly of any actual or suspected unauthorized use of your account, username or password, or any other breach or suspected breach of these Terms. Cloud9 IDE, LLC reserves the right to terminate any username and password, which Cloud9 IDE, LLC reasonably determines may have been used by an unauthorized third party.
5.7 IP Ownership. The Service and all Intellectual Property Rights in the Service, the Cloud9 IDE, LLC Content and any of Cloud9 IDE, LLC’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, d esigns and other tangible or intangible technical material or information made available to you by Cloud9 IDE, LLC in providing the Service (the “Cloud9 IDE, LLC Technology”) are the exclusive property of Cloud9 IDE, LLC or its suppliers. You hereby assign to Cloud9 IDE, LLC any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you related to the Service, the Cloud9 IDE, LLC Content or the Cloud9 IDE, LLC Technology. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service, the Cloud9 IDE, LLC Content or the Cloud9 IDE, LLC Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Cloud9 IDE, LLC Technology. All rights not expressly granted to you are reserved to Cloud9 IDE, LLC.
6.1 Charges. If you signup for a Service that requires the payment of a fee, you shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charge will be equal to the license fee applicable to the number of Named User licenses designated in your account (“License Fee”) as set forth on the Site. Payments must be made monthly in advance unless otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You must provide Cloud9 IDE, LLC with a valid credit card or valid online payment account information as a condition to registering for the Service. Cloud9 IDE, LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail.
6.2 Billing and Renewal. Cloud9 IDE, LLC charges and collects in advance for use of the Service. Cloud9 IDE, LLC will automatically renew and bill your credit card or online payment account each month. The renewal charge will be equal to the License Fee in effect during the prior month, unless the Cloud9 IDE, LLC has given you at least thirty (30) days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Cloud9 IDE, LLC shall be entitled to withhold performance and discontinue Service until all amounts due are paid in full. Cloud9 IDE, LLC’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cloud9 IDE, LLC’s income. You agree to provide Cloud9 IDE, LLC with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address and name and telephone number of an authorized billing contact and Project Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, Cloud9 IDE, LLC may terminate your access to the Service in addition to any other legal remedies.
6.3 Named Users. You are responsible for paying for the number of Named Users designated in your account, whether or not the Named Users use the Services. You may add Named Users by designating the number of Named Users you desire in your account. Added Named Users will be subject to the following: (a) the fee applicable to Named Users after such addition will be the then-current fee set forth on the Site applicable to the total number of Named Users designated in your account and (b) any increase to the fees as a result of the addition of a Named User in the middle of a billing month will be charged in full for that billing month. You may transfer a Named User license to another User, provided that you may not exceed the number of Named Users for which you have paid the applicable License Fees. You acknowledge that if you have been designated as a Named User by another User (“Paying User”), notwithstanding anything to the contrary in this Agreement, Cloud9 IDE, LLC shall be entitled to withhold performance and discontinue Service to you until all amounts due on your account (including, but not limited to, your License Fee) are paid in full.
7. Customer Content and Conduct
7.1 License; Warranty. You grant Cloud9 IDE, LLC a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content in conjunction with the Service; and (b) to use your trademarks, service marks, and logos as required to provide the Service. All rights in and to the Customer Content not expressly granted to Cloud9 IDE, LLC in these Terms are reserved by you.
7.2 Content and Conduct. You represent and warrant that any Customer Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Service, any Content, or other data of the Service; or (e) otherwise violate the rights of a third party. In addition, you agree not to use, or encourage or permit others to use, the Site or Service to (i) stalk and/or harass another; (ii) harm minors in any way; (iii) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Service; (v) use the Site, Service or Content such that it will mislead a third party into believing that he or she is interacting directly with Cloud9 IDE, LLC or the Service; (vi) engage in any chain letters contests, junk e-mail, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); (vii) use any Cloud9 IDE, LLC domain name as a pseudonymous return e-mail address; (viii) access or use the Site or Service in any manner that could damage, disable, overburden or impair any Cloud9 IDE, LLC server or the networks connected to any Cloud9 IDE, LLC server; or (ix) market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by Cloud9 IDE, LLC. You will defend at your expense any suit brought against Cloud9 IDE, LLC and will pay any settlement you make or approve or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party based upon, resulting from or related to any improper or unauthorized use of the Service by you or any Customer Content.
7.3 Storage; Security and Backups. Cloud9 IDE, LLC reserves the right to establish capacity limits on your storage of Customer Content on the Service. Cloud9 IDE, LLC shall provide logical and physical security to ensure the logical and physical security of its equipment and Customer Content. The logical and physical security provided by Cloud9 IDE, LLC will include, but not be limited to (a) a defined security administration practice and process including account and password administration; and (b) ensuring that only authorized Cloud9 IDE, LLC employees and contractors who have a need for physical access to provide the Service will have such access to the equipment and Customer Content. During the Term, Cloud9 IDE, LLC shall use commercially reasonable efforts to protect Customer Content behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backups in a separate, fire-resistant facility.
7.4 Content Loss. You represent and warrant that you shall keep and maintain your own copy of all Project Content that is provided to the Service and Cloud9 IDE, LLC. Except as set forth below, Cloud9 IDE, LLC is not obligated to back up any Project Content that is posted on the Service. Cloud9 IDE, LLC therefore recommends that you create backup copies of any Project Content posted on the Service at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this section constitutes improper and unauthorized use of the Service. You agree that Cloud9 IDE, LLC may (but has no obligation to), in Cloud9 IDE, LLC’s sole discretion, remove or modify any Project Content which it deems to violate your representations and warranties in this section. In the event of a loss of Project Content caused by Cloud9 IDE, LLC, Cloud9 IDE, LLC will use commercially reasonable efforts to recover the Project Content within ninety-six (96) hours of notification of loss. If Cloud9 IDE, LLC performs recovery services for a loss of Customer Content not caused by Cloud9 IDE, LLC, you agree to pay Cloud9 IDE, LLC’s then-current time and materials rate to attempt to recover the Project Content. The foregoing constitutes your sole and exclusive remedy for any loss of Customer Content.
7.5 Access to Project Content on Termination. In the event your access to the Service is terminated (other than by reason of your breach), Cloud9 IDE, LLC will make available to you a file of the Project Content if requested in writing by you within thirty (30) days after such termination. You agree and acknowledge that Cloud9 IDE, LLC has no obligation to retain the Project Content, and may delete such Project Content, at any time on or after the thirty-first (31st) day following termination. Cloud9 IDE, LLC reserves the right to withhold, remove and/or discard Project Content, without notice, for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Project Content shall immediately cease, and Cloud9 IDE, LLC will have no obligation to maintain or provide any Project Content.
8. Third Party Links. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of Cloud9 IDE, LLC. Cloud9 IDE, LLC is not responsible for the content of any third party web site or any link contained in a third party web site. Cloud9 IDE, LLC provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
9. Copyright Policy. Cloud9 IDE, LLC reserves the right to terminate its agreement with any User about whom Cloud9 IDE, LLC receives copyright infringement notifications in accordance with this Section 10. Without limiting the foregoing, if you believe that a copyrighted work has been copied and posted via the Service in a way that constitutes copyright infringement, you shall provide Cloud9 IDE, LLC with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Service of the copyrighted work that you claim has been infringed; (c) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, such as telephone number or e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Cloud9 IDE, LLC’s Copyright Agent for notice of claims of copyright infringement is as follows:Cloud9 IDE, LLC.
Attn: General Counsel
P.O. Box 81226
Seattle, WA 98108-1226
United States of America
10. Limited Warranty and Disclaimer
10.1 Limited Warranty. Cloud9 IDE, LLC warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will materially conform to Cloud9 IDE, LLC’s then current Documentation for the Service under normal use and circumstances. If you notify Cloud9 IDE, LLC of a breach of warranty, Clo