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 (31<sup>st</sup>) 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
E: firstname.lastname@example.org Phone: +1 (206)-266-4064
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, Cloud9 IDE, LLC will correct or modify the Service so that it conforms to Cloud9 IDE, LLC’s then current Documentation for the Service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.
10.2 Disclaimer. The limited warranty set forth in these Terms is made for your benefit only. Except as expressly provided in this section and to the maximum extent permitted by applicable law, the Service and any other services provided by Cloud9 IDE, LLC are provided “as is,” and Cloud9 IDE, LLC makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of merchantability, title, noninfringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the Service (in whole or in part) or any other products or services provided to you by Cloud9 IDE, LLC. Cloud9 IDE, LLC does not warrant that all errors can be corrected, or that operation of the Service shall be uninterrupted or error-free.
10.3 Internet Delays. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Cloud9 IDE, LLC is not responsible for any delays, delivery failures or other damages resulting from such problems.
11. Limitation of Liability
11.1 Types of Damages. To the maximum extent permitted under applicable law, in no event shall Cloud9 IDE, LLC, or its suppliers, be liable to you for any special, indirect, incidental or consequential damages or any lost profits, including any such damages or costs due to loss of data, use or goodwill, personal or property damage resulting from or in connection with Cloud9 IDE, LLC’s performance hereunder or the use, misuse, or inability to use the Service or other products or services hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if Cloud9 IDE, LLC has been notified of the likelihood of such damages. In no event shall Cloud9 IDE, LLC be liable for procurement costs of substitute products or services.
11.2 Amount of Damages. To the maximum extent permitted under applicable law, the maximum liability of Cloud9 IDE, LLC arising out of or in any way connected to these Terms shall not exceed the fees paid by you to Cloud9 IDE, LLC during the Twelve (12) months immediately preceding the claim. The existence of one or more claims under these Terms will not increase Cloud9 IDE, LLC’s liability. In no event shall Cloud9 IDE, LLC’s suppliers have any liability arising out of or in any way connected to these Terms.
11.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
11.4 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
12.1 By Cloud9 IDE, LLC. Cloud9 IDE, LLC will defend at its expense any suit brought against you, and will pay any settlement Cloud9 IDE, LLC makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Service becomes, or in Cloud9 IDE, LLC’s opinion is likely to become, the subject of a claim of infringement, Cloud9 IDE, LLC may, at Cloud9 IDE, LLC’s option: (a) procure for you the right to continue using the Service; (b) replace the Service with non-infringing services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate the Service and refund any fees actually paid by you to Cloud9 IDE, LLC for the remainder of the License Term then in effect. Notwithstanding the foregoing, Cloud9 IDE, LLC shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Service not in accordance with these Terms or the Documentation; (x) Cloud9 IDE, LLC’s conformance to your specifications; (y) any use of the Service in combination with other products, equipment, software or Content not supplied by Cloud9 IDE, LLC; or (z) any modification of the Service by any person other than Cloud9 IDE, LLC or its authorized agents. This subsection states your sole and exclusive remedy for infringement claims and actions.
12.2 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
13.1 Term. These Terms will continue to apply until terminated by either you or Cloud9 IDE, LLC as set forth below (the “Term”).
13.2 Termination by You. If you want to terminate your agreement with Cloud9 IDE, LLC, you may do so by (a) notifying Cloud9 IDE, LLC at any time; and (b) closing your account for the Service, where Cloud9 IDE, LLC has made this option available to you. Your notice should be sent, in writing, to Cloud9 IDE, LLC’s address set forth below.
13.3 Termination by Cloud9 IDE, LLC. Cloud9 IDE, LLC may at any time terminate these Terms if (a) you or any of your Named Users have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) Cloud9 IDE, LLC is required to do so by law (for example, where the provision of the Site or Service to you is, or becomes, unlawful); (c) the provision of the Service to you by Cloud9 IDE, LLC is, in Cloud9 IDE, LLC’s opinion, no longer commercially viable; or (d) Cloud9 IDE, LLC has elected to discontinue the Site or the Service (or any part thereof).
13.4 Effect of Termination. Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon expiration or termination, you shall promptly discontinue use of the Site and the Service. However, Sections 5.6 (IP Ownership), 6 (Payment), 7.1 (License; Warranty), 7.4 (Content Loss), 8 (Third Party Links), 11 (Limited Warranty and Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Termination) and 15 (Miscellaneous) of these Terms will survive any termination of the Terms.
14. User Disputes. Your interactions with other Users found on or through the Service are solely between you and such other Users.If there is a dispute between you and any third party (including, without limitation, any User), Cloud9 IDE, LLC is under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.
15.1 Governing Law. To the fullest extent permitted by law, and except as explicitly provided otherwise, these Terms and any disputes arising out of or relating to it will be governed by the laws of the state of California, in accordance with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The laws of the jurisdiction where you are located may be different from California law. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to your purchase and use of the Service hereunder.
15.2 Arbitration. If you and we have a disagreement related to the Service or the validity of these Terms, we’ll try to resolve it by talking with each other. If we can’t resolve it that way, we both agree to use confidential binding arbitration, not lawsuits (except for small claims court cases) to resolve the dispute. We agree that any controversy or claim between us will be settled by one neutral arbitrator before the American Arbitration Association (“AAA”). There’s no judge or jury in arbitration, arbitration procedures are simpler and more limited than rules applicable in court, and review is limited. But you are entitled to a hearing and the arbitrator’s decisions are as enforceable as any court order.
(a) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. As modified by these terms of conditions of use, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). We further agree that: (i) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us; (ii) any claims brought by you or us must be brought in our individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding; (iii) the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding; (iv) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (v) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (vi) the arbitrator shall honor claims of privilege and privacy recognized at law; and (g) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or us shall be confidential unless otherwise required to be disclosed by law or by any administrative body.
(b) With the exception of subparts (ii) and (iii) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained in these terms of conditions of use. If, however, either subpart (ii) or (iii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither your or we shall be entitled to arbitration, and the provision below titled “Forum and Jurisdiction” will apply.
(c) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879, write the AAA at 1633 Broadway, 10th Floor, New York, New York 10019, or visit the AAA website at http://www.adr.org.
15.3 Forum and Jurisdiction: You and Cloud9 IDE, LLC agree that (i) claims for infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret (including injunctive remedies or an equivalent type of urgent legal relief for asserted violation or threatened violation of intellectual property rights), (ii) claims for interim equitable relief in court in order to maintain the status quo pending the arbitrator’s ruling, and (iii) if this subparts (ii) and (iii) in Section 15.2(a) are held unenforceable or any claims, demands, or disputes are initiated, filed, or proceed in court rather than in arbitration for whatever reason, such claims, demands, or disputes shall be exclusively resolved by an appropriate federal or state court located in the County of San Mateo, California. You and Cloud9 IDE, LLC agree to submit to the personal jurisdiction of the courts located in the County of San Mateo, California for such purpose.
15.4 Export. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Cloud9 IDE, LLC, or any products utilizing such data, in violation of the United States export laws or regulations.
15.5 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that Section 12 (Limitation of Liability) will remain in effect notwithstanding the unenforceability of any provision in Section 11 (Limited Warranty and Disclaimer).
15.6 Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.7 Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Users. If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15.8 Remedies. The parties acknowledge that any actual or threatened breach of Section 5 (License Grant and Restrictions) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
15.9 No Assignment. You will not assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of Cloud9 IDE, LLC, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that you may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of you assets, or other operation of law, without any consent of Cloud9 IDE, LLC. These Terms shall be binding upon the parties and their respective successors and permitted assigns.
15.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
15.11 Independent Contractors. Your relationship to Cloud9 IDE, LLC is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that you have, any authority to act on behalf of Cloud9 IDE, LLC.
15.12 Use of name and logo. You hereby grant Cloud9 the right to use your name and logo to identify you as a customer of Cloud9 in materials promoting the Service. You may request that we cease further use of your name and logo in newly created materials at any time by submitting a written request via email to email@example.com, requesting to be excluded from such materials. Cloud9 will use commercially reasonable efforts to honor such request within thirty (30) calendar days after Cloud9’s receipt of such request unless such request is received by Cloud9 less than five (5) business days following the date you enter into these Terms, in which case such request will be effective immediately upon receipt by Cloud9.
Cloud9 IDE, LLC.
410 Terry Avenue North
Seattle, WA 98109-5210
United States of America
15.13 Notices. You are responsible for updating your data to provide Cloud9 IDE, LLC with your most current e-mail address. In the event that the last e-mail address you have provided to Cloud9 IDE, LLC is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, Cloud9 IDE, LLC’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to Cloud9 IDE, LLC pursuant to these Terms should be sent to firstname.lastname@example.org to the following physical address:
15.14 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing.