Cloud 9 Business Apps – Terms and Conditions of Service

Last updated: May 31, 2020

Definitions.

“Administrators” mean the personnel designated by you who administer our products.

“our products” and “Cloud 9 products” means our hosted or cloud-based solutions, including any hosted websites or other applications

“Cloud 9”, “we” and “our” refers to Cloud 9 Business Apps including it’s officers, directors, agents, representatives, employees, successors or assigns and service partners

“Documentation” means our standard published documentation for the our products on either our website or videos

“End User” means an individual you or an Affiliate permits or invites to use our products. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud 9 product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud 9 Product.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to our products, Support or Additional Services.

“Laws” means all applicable local, provincial, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a Cloud 9 Product account or otherwise sign up for a Cloud 9 Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” means any request from you via telephone, email, online form or otherwise whereby you request us to begin services for you.

“Our Policies” means our Privacy Policy, Support Policy and (unless specified) any other policies or terms referenced in these Terms.

“Our Technology” means the Cloud 9 products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that apply to certain Cloud 9 products and Additional Services.

“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social insurance or social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Subscription Term” means your permitted monthly subscription period for a Cloud 9 product.

“Support” means support for our products.

“Training” means Cloud 9 provided training.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to our products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through our products.

“Your Materials” means your materials, systems, personnel or other resources.

Acceptance of Terms. These Terms of Service (“Terms”) describe the rights and responsibilities of you and Cloud 9 as parties to this agreement. These Terms are between you and Cloud 9 Business Apps (“Cloud 9 Business Apps”, “Cloud 9”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not use our products or websites. PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD 9 PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOU WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

1. What these Terms cover.

1.1. Our Products. These Terms govern our products, related Support, and any additional services provided by Cloud 9. These Terms include our Privacy Policy.

2. How Our Products are administered.

2.1. Administrators. Through our products, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of our products and End User Accounts. This may include enabling Apps (which may incur fees); creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others. Administrators may also take over management of accounts previously registered using an email address belonging to your domain (which become “managed accounts”). Without limiting Section 2.4 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above.

2.2. Responsibility for End Users. You are responsible for understanding the settings and controls for each Cloud 9 product you use and for controlling whom you allow to become an End User. You are responsible for compliance with these Terms by all End Users, including for any payment obligations. Please note that you are responsible for the activities of all your End Users, including Bookings they may make and how End Users use Your Data, even if those End Users are not from your organization or domain. We may display our User Notice to End Users at sign up, account creation, product registration, or in-product. If you use single sign-on (SSO) for identity management of your Cloud 9 product(s) such that End Users will bypass these screens and our User Notice, you are responsible for displaying our User Notice to End Users and for any damages resulting from your failure to do so.

2.3. Credentials. You must require that all End Users keep their user IDs and passwords for our products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons. If you share a user ID and password, you are fully responsible for any damages that might result from that action. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

2.4. Age Requirement for End Users. Our products are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all End Users are at least 16 years old.

3. What’s included in your Cloud 9 Product subscriptions; what are the restrictions.

3.1. Access to our products. Subject to these Terms and during the applicable Subscription Term, you may access and use our products for your own business purposes or personal use, as applicable, all in accordance with these Terms. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.

3.2. Support. During the Subscription Term, we will provide unlimited but reasonable levels of free support for our products. The reasonableness of your support level shall be determined at the sole discretion of Cloud 9.

3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of our products; (b) rent, lease, distribute, sell, sub license, transfer or provide access to our products to a third party; (c) incorporate any Cloud 9 Products into a product or service you provide to a third party; (d) interfere with or otherwise circumvent mechanisms in our products intended to limit your use; (e) reverse engineer, disassemble, de-compile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud 9 products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (f) remove or obscure any proprietary or other notices contained in any Cloud 9 Product; (g) use our products for competitive analysis or to build competitive products; (h) publicly disseminate information regarding the performance of the Cloud 9 Products; or (i) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications.

4.2. Privacy. We collect certain data and information about you and your End Users in connection with your and your End Users’ use of our products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.

4.3. Improving Our Products. We are always striving to improve our products. In order to do so, we use analytics techniques to better understand how our our products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

4.4. Subpoenas. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you where permitted to do so. Cloud 9 strives to balance your privacy rights with other legal requirements.

5. Terms that apply to Your Data.

5.1. Using Your Data to provide Our Products to You. You retain all right, title and interest in and to Your Data in the form submitted to our products. Subject to these Terms, and solely to the extent necessary to provide our products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud 9 product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud 9 products with End User permission in order to respond to your support requests.

5.2. Your Data Compliance Obligations. You and your use of our products (including use by your End Users) must comply at all times with these Terms. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to our products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with our products.

5.3. No Prohibited Sensitive Personal Information. You will not submit to our products (or use our products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Cloud 9 product. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.

5.4. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents, technology partners and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of our products, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.

5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to our products. Nonetheless, if we deem such action necessary based on your violation of these Terms, we may (1) remove Your Data from our products or (2) suspend your access to our products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of our products or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud 9 products as described in this Section 5.5.

6. Additional Services.

6.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable requests. Additional Services may be subject to additional policies and terms as specified by us, usually via email. Terms and Conditions provided via email for any Additional Services are considered to be part of this agreement.

7. Billing, renewals, and payment.

7.1. Monthly Plans. Except for No-Charge Products, most Cloud 9 products are offered on a monthly subscription basis.

7.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in our products or contacting our support team ([email protected]). Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud 9 product continuing to be offered and will be charged at the then-current rates.

7.4. Payment. You must pay all fees by the due dates specified on your invoices and in Canadian dollars. Monthly invoices can be paid by credit card (Visa, Mastercard or American Express) or Interac (etransfer).

8. Taxes not included.

8.1. Taxes. Your fees under these Terms exclude any taxes or duties payable in respect of the our products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under these Terms. Notwithstanding the foregoing, if you have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, you may provide us with such exemption information, and we will use reasonable efforts to provide you with invoicing documents designed to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.

9. IP Rights in Our Products and Feedback. Cloud 9 products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licencors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud 9 products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

10. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to our products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 16 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 16. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Term and Termination.

11.1. Term. These Terms are effective as of the date you first use or access a Cloud 9 product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by engaging our services or using our products, create a Cloud 9 account, or place an order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product. The Terms may be revised from time to time without notice, and the then-current version of the Terms will apply to any transaction or action or omission of you or the Company. This Agreement shall apply for an indefinite term and may be terminated by either party by providing thirty days’ notice to the other party.

11.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

11.3. Termination for Convenience. You may choose to stop using the our products and terminate these Terms at any time for any reason upon written notice to us, but (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

11.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud 9 products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud 9 products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 11.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 11.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

11.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity),  7.4 (Payment), 8 (Taxes not included),  9 (IP Rights in the our products and Feedback), 10 (Confidentiality), 11 (Term and Termination), 12 (Warranty Disclaimer), 13 (Limitations of Liability), 15 (Dispute Resolution) and 19 (General Provisions).

12 Warranties and Disclaimer.

12.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

12.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into our products but we are not responsible for harmful materials submitted by you or End Users.

12.3. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 18, ALL CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

13. Limitation of Liability.

13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

13.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 19 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

14. Publicity Rights. We may identify you as an Cloud9 customer in our promotional materials. We will promptly stop doing so upon your request sent to [email protected]

15. Dispute Resolution.

16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 22.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 22.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

16.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the Alberta, Canada, without giving effect to the principles of that Province relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the Province of Alberta, Canada, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Edmonton, Alberta, Canada, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

16.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 22.1 (Informal Resolution) and 22.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

16.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

17. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 26.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

17.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 9.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Services upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud 9 products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Subscription is subject to the version of these Terms in effect at the time of the initial subscription.

17.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

18. Changes to  Cloud 9 Products. You acknowledge that the Cloud 9 products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to our products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud 9 Products, we can discontinue any Cloud 9 Products or any portion or feature of any of our products for any reason at any time without liability to you.

19. General Provisions.

19.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by [email protected]

19.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

19.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

19.5. Entire Agreement. These Terms are the entire agreement between you and us relating to the our products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to our products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

19.6. Conflicts. In any event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

19.7. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 24 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

19.8. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

19.9. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

20. Support

20.1 Reasonable Levels of Included Support. Most of our services provide unlimited support. We can only offer this “within reason”. Cloud 9 reserved the right, in its sole discretion, to determine what is reasonable or unreasonable and you must be bound by that determination.

20.2 Additional Support Charges. If Cloud 9 determines that your support requests are unreasonable, we have the right to charge you what we believe to be a reasonable amount for the support over and above the amount we deem to be reasonable.

21. GDPR Obligations. If you are located in the European Union, offer goods or services to data subjects located in the European Union, or monitor the behaviour of any individuals that occurs in the European Union, then you are subject to and must comply with the provisions of the GDPR with respect to your use of Cloud 9 services. Without limiting the generality of the foregoing, you must:

1. Obtain the consent of any data subject about whom you gather any personal data as that term is defined in the GDP are using the services unless you have established that you are authorized to process information about such data subject under another lawful basis bracket such as legitimate interest or contractual basis for processing such information and bracket. The consent you obtain must be clear and in compliance with the provisions of the GDPR;
2. Use the personal data you obtained using the services only for the purposes for which consent is given or for other purposes allowed by the GDPR;
3. notify us immediately of any data subject that makes or lodges a complaint regarding your use of their personal data and;
4. comply with any reasonable request Cloud 9 may make regarding compliance with the GDPR and cooperation with any applicable data protection authority.