Terms of Service

Software as a Service Agreement and Terms of Use

This Software-as-a-Service Agreement and Terms of Use (this “Agreement”) is a legal contract between you (“you” or “Customer,” either an individual or the entity on whose behalf you are executing this Agreement) and Cloud 9 Software, Inc. (“we”, “us”, “Cloud 9”) which governs your purchase and use of Cloud 9’s practice management software-as-a-service solution for orthodontic practice management, pediatric dental practice management and other related services. By signing and/or submitting an Order Form and placing an order that incorporates this Agreement, you agree that you have read and that you accept the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services. Any usage of the Services indicates agreement with this Agreement in its entirety.

1. Definitions

(b) “Cloud 9 Platform” or “Platform” refers collectively to Cloud 9’s proprietary practice management software solution for orthodontists, pediatric dentists and/or other dental related service providers which features are offered to and accessed by the Customer in a software-as-a-service format as set forth in this Agreement.

(c) “Commencement Date” means the date upon which Customer first begins to actively use the Services in its normal course of operation and monthly billing has commenced.

(d) “Customer Data” means all the data, content and/or information provided, uploaded, recorded and/or posted by Customer during and in connection with its authorized use of the Services, including all video, recordings, information, text, graphics, pictures, photos, images, profiles, reviews, messages, notes, prescriptions and/or any other uploaded content, published or displayed on or through the Platform or Services.

(e) “Normal Business Hours” means Monday through Friday from 8 a.m. ET to 8:00 p.m. ET, excluding Cloud 9 observed holidays.

(f) “Order Form” means the form, document, or online acceptance through which Customer orders and purchases from Cloud 9 services under this Agreement. Order Forms hereunder must reference this Agreement and are incorporated herein by reference upon execution. Access to the Services shall be made only against a written Order Form expressly accepted by Cloud 9.

(g) “Planned Maintenance” means a period of time in which work is scheduled in advance by Cloud 9 with Customer for Cloud 9 to complete as scheduled.

(h) “Routine Maintenance” means predictable and routine blackout windows where Cloud 9 may or may not be performing service interrupting work with no notice of any kind to Customer. Blackout windows are defined as (i) the first Thursday of each calendar month between the hours of 11:00 pm ET and 2:00 am ET and (ii) the third Saturday of each calendar month between the hours of 10:00 pm ET and 2:00 am ET.

(i) “Session” means a successful logon and use of the Platform by an Authorized User. Each concurrent device which an Authorized User uses to access the Platform simultaneously shall constitute a separate Session and, as a result, a single Authorized User may have multiple concurrent Sessions.

(j) “Services” means, collectively, the Platform and the services provided by Cloud 9 to Customer pursuant to Section 3 of this Agreement.

(k) “Subscription Term” means, unless otherwise set forth in the Order Form, an initial period of forty-eight (48) months commencing on the Commencement Date, together with any Automatic Renewal periods thereafter.

(l) “Unplanned Outage” means an event, which is not scheduled by Cloud 9 which prevents Customer from accessing the Platform.

(m) “User Materials” means any user’s manual, guides and other materials provided hereunder with respect to the use or operation of the Platform and Services.

2. License

(a) Grant of License. During the Subscription Term, and subject to Customer’s compliance with this Agreement, Customer and its Authorized Users are hereby granted a non-exclusive, non-transferable (except in compliance with Section 9(f)) right to access the Cloud 9 Platform and use the Services, solely for Customer’s internal business purposes.

(b) Sessions; Authorized Users. The license granted hereunder shall permit the maximum number of concurrent Sessions set forth in the Order Form. Should an Authorized User attempt to login to create a Session in excess of the maximum number set forth in the Order Form, Cloud 9 shall reject such login. For the avoidance of doubt, a single Authorized User may have multiple concurrent Sessions by, among other things, being logged-in to the Program on multiple devices simultaneously or logged into multiple concurrent sessions on the same device. Each such concurrent login shall constitute a separate Session for purposes of determining the number of Sessions being utilized by Customer. Customer agrees to notify Cloud 9 of all persons with logins in and passwords upon Cloud 9’s request. In the event Customer obtains a login and password for any contractor, agent or other non-employee, Customer shall be solely responsible for all acts and omissions of such non-employee and, in such event, Customer shall be responsible for ensuring that such persons have executed a HIPAA-compliant Business Associate Agreement governing their access to Customer’s Data. Customer agrees not to encourage or permit its Authorized Users or others to purposefully or willfully avoid or evade the limits set forth herein. Customer shall be responsible for promptly notifying Cloud 9 when any employee, contractor or agent is no longer authorized to utilize a login so that Cloud 9 may terminate such person’s credentials and access to the Cloud 9 Platform. We reserve the right to terminate or disable any logon which Cloud 9 reasonably believes is being used by any person in violation of this Agreement.

(c) License Restrictions. Except as expressly permitted by this Agreement, Customer may not: (i) lease, loan, resell, sublicense or otherwise distribute the Platform, Services or User Materials; (ii) use the Platform, Services or the User Materials to provide or operate a service bureau, marketing, training, outsourcing or consulting services, or any other commercial service related to the Platform or Services; (iii) use the Platform, Services or User Materials to develop a product or service which is competitive with any of the Services, including the Platform; (iv) distribute or publish keycodes to the Platform or Services; or (v) use unauthorized keycodes. The Platform and Services are made available to Customer solely as hosted by or on behalf of Cloud 9, and nothing in this Agreement shall be construed to grant Customer any right to receive any copy of the Platform, Services or any other software. Customer shall notify Cloud 9 immediately if Customer becomes aware of any unauthorized third-party access to, or use of, the Platform, Services or User Materials.

(d) Use at Authorized Locations Only. The license granted hereunder may be used only for the practice and office(s) where Customer treats or examines patients identified in the Order Form. Customer agrees not to use the Platform or Services for any other practice or any location where it treats or examines patients other than at such office(s) identified in the Order Form; provided, however, that nothing herein shall prohibit Customer or Authorized Users from accessing the Platform or Services remotely, provided that Customer complies with all other terms and conditions of this Agreement.

(e) Ownership and Restrictions. As between Cloud 9 and Customer, Cloud 9, its affiliates and/or licensors retain all right, title and interest to the Services, the Cloud 9 Platform, the User Materials, Cloud 9 trademarks and service marks, and all other related software, applications, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, ideas, concepts, inventions, systems, interfaces, tools, utilities, forms, report formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by Cloud 9 in providing the Services and/or when providing other services and any other intellectual property or items used to deliver the Services or provide other services or made available to Customer as a result of the Services (collectively, the “Cloud 9 Technology”). This Agreement does not convey to Customer any title or ownership to the Platform, Services and User Materials, but only a right of limited use in accordance with the terms of this Agreement. The Services and related Cloud 9 Technology are protected by applicable intellectual property laws and rights, including rights deriving from copyright, trade secret, patents, trademarks and related industrial property. Customer’s access and use of the Services, Cloud 9 Technology and any related materials shall be governed by the terms of this Agreement and any documents incorporated by reference. There are no licenses granted by implication in this Agreement and Cloud 9 reserves and retains any rights not expressly granted to Customer. In the event Customer (or its Authorized Users) provides Cloud 9 with any suggestions, enhancement requests, recommendations or other feedback relating to the Services or Cloud 9 Technology (“Feedback”), Customer hereby grants Cloud 9 a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate such Feedback into any Cloud 9 products or services, provided the Feedback so used does not include any of Customer’s Confidential Information. No right to modify (even for purposes of error correction), adapt or translate any Services or create derivative works from the Platform or Services is granted to Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that Customer has any right to obtain any source code of the Platform or Services. Except as required to be permitted by applicable law, reverse compiling (including reverse compiling to ensure inoperability), reverse engineering and other source code derivation of the Platform and Services is prohibited.

3. Support and Additional Services

(a) Hosting and Data Services. Cloud 9 shall provide data hosting and storage services which will store and permit Customer to access Customer Data. Cloud 9 shall back up Customer Data daily. Recovery time will vary on a case by case basis. Customer acknowledges that the Platform and Services depend on the availability of the Customer Data and that Cloud 9 does not assume any responsibility for, or undertake to verify, the accuracy or completeness of Customer Data. As between Cloud 9 and Customer, Customer and its licensors own all rights, title and interest in and to the Customer Data. Customer hereby grants to Cloud 9 a royalty-free, nonexclusive, worldwide, right and license (with the right to sublicense through multiple tiers) to use, copy, store, process, transmit and display Customer Data as necessary to provide the Services hereunder. Customer hereby agrees and consents that in providing the Services, Cloud 9 may enter into arrangements with and utilize the services of third party cloud services provider(s) for hosting of the Cloud 9 Platform (“Cloud Providers”). Cloud 9 shall require that any such Cloud Provider be contractually bound to provide substantially the same level of protection with respect to Customer’s Data as provided by the terms of this Agreement and if required by law. If applicable, Cloud 9 will reasonably make the Cloud Provider service levels, acceptable use policies and information security policies available to Customer upon request. Upon request by Customer, Cloud 9 shall supply a copy of the Customer’s Data to Customer, subject to a service charge at Cloud 9’s then prevailing rates, plus media and shipping.

(b) Maintenance, Updates and Support. Customer understands and accepts Cloud 9’s Planned Maintenance and Routine Maintenance programs. For each Planned Maintenance event, Customer will work with Cloud 9 in advance within a reasonable amount of time in order to align mutual expectations. Customer agrees to take no longer than 5 business days, excluding holidays, to respond to a Planned Maintenance notice from Cloud 9. Otherwise, Cloud 9 reserves the right to execute as communicated. Cloud 9 shall use commercially reasonable efforts to provide Customer with technical support and updates for the Platform and Services in accordance with its regular business practices. Cloud 9 shall provide technical support via telephone or email during Cloud 9’s normal business hours. Customer agrees that Cloud 9 may charge in accordance with its then-current policies and rates for any support services resulting from problems, errors or inquiries related to the Customer Data or Customer’s system.

(c) Monitoring; Availability. Customer’s access to the Platform and Services shall be available via supported access methods (i.e., computer browser, mobile browser, etc.) with a service level objective of 99% annual uptime. Cloud 9 shall proactively monitor Customer’s availability both from and on the Internet as well as from and within our data center(s). Monitoring shall be in effect 24x7x365. Unplanned Outages will be accounted for in the annual uptime; however, Planned Maintenance and Routine Maintenance will not affect annual uptime calculations. Customer shall not have access to Cloud 9’s monitoring system(s) at any time, but Customer may request that Cloud 9 generate availability reports from time to time upon Customer’s reasonable request Customer’s sole and exclusive remedy in the event of an availability failure shall be a partial credit against future payments.

(d) Security and HIPAA Compliance. Cloud 9 shall endeavor to maintain and handle all Customer Data in accordance with industry standard privacy and security practices and measures adequate to preserve its confidentiality and security as required by applicable privacy laws and regulations, including but not limited to the federal Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and their regulations (collectively to be referred to as “HIPAA”). As between Cloud 9 and Customer for purposes of disclosure of Customer Data, to the extent it may contain individually identifiable health information that is transmitted or maintained in or by electronic or any other media (“PHI”), Cloud 9 may be considered a “Business Associate” if and when Customer may be considered a “Covered Entity”. If Cloud 9 is a Business Associate, the parties agree to enter into a Business Associate Agreement (the “BAA”) as required by HIPAA. BY EXECUTING AN ORDER FORM HEREUNDER, CUSTOMER AGREES THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE BAA, WHICH IS HEREBY INCORPORATED BY REFERENCE.

(e) Service Standards. Cloud 9 will provide the Services in a professional manner consistent with general and reasonable industry standards.

(f) Termination; Return of Customer Data. Upon termination of this Agreement in accordance with the terms and conditions hereof, Customer’s access to the Platform and Services shall immediately cease. Upon Customer’s written request to Cloud 9 for Customer’s Data, Cloud 9 shall provide the Customer with a copy of all the Customer’s Data in Cloud 9’s then-current format within no more than twenty (20) business days, excluding Cloud 9’s observed holidays, starting on the business day in which the Customer’s request is received and acknowledged by Cloud 9. Customer shall pay for the media, shipping and any ancillary data extraction fees that might be charged by Cloud 9 or Cloud 9’s hosting provider.

4. Customer Responsibilities

(a) Restrictions. Customer and its Authorized Users shall comply with all applicable laws in using the Services. Customer and its Authorized Users shall not directly or indirectly (i) modify, copy or create derivative works based on the Platform or Services, Cloud 9 Technology or use any of Cloud 9’s Confidential Information to create any service, software or documentation that performs substantially the same functionality as the Services or which is competitive with the Services or the Cloud 9 Technology; (ii) create Internet “links” to or reproduce any content forming part of the Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, decompile or use any other means to attempt to gain unauthorized access to, or attempt to discover any source code, algorithms or trade secrets underlying the Services or Cloud 9 Technology or any part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Services or Cloud 9 Technology (except and only to the extent these restrictions are expressly prohibited by applicable statutory law); (iv) interfere with or disrupt the integrity or performance of the Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the Services; (vii) send or store viruses or malicious code via the Services; (viii) use any components provided with the Services separately from the Services; (ix) encumber, sublicense, transfer, distribute, rent, lease, loan, time-share or use the Services or Cloud 9 Technology in any service bureau arrangement or otherwise for the benefit of any third party; or (x) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with Customer’s use of the Services in violation of any export control or other laws and regulations of the United States of America or any other relevant jurisdiction. Customer shall notify Cloud 9 immediately if Customer becomes aware of any violation or breach of these restrictions, whether by Customer or any third-parties.

(b) Customer Data. Customer agrees that it is solely responsible for the accuracy and completeness of Customer Data transmitted through the Services, and it shall (i) require Authorized Users not to modify, post, transmit, or share Customer Data on the Services absent express permission; (ii) notify patients of Customer’s Notice of Privacy Practices in accordance with HIPAA; and (iii) obtain all necessary authorizations and consents from patients in connection with Customer’s use of the Services, including authorization to send any marketing or other communications sent by Cloud 9 on behalf of Customer.

(c) Customer Systems. Customer is solely responsible for providing, whether directly by itself or through the use of third-party products and/or services, (i) all subscriptions and credentials necessary for Cloud 9 to receive the Customer Data, and (ii) all information technology infrastructure, including all equipment, servers, devices, storage, other software, databases, network and communications equipment and ancillary services needed to send Customer Data to Cloud 9 and/or to use or access the Services (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the User Materials. Customer represents and covenants that all Customer Systems are in compliance with HIPAA and other federal and state data privacy and security laws. Customer shall be solely responsible for the operation of all Customer Systems. Customer hereby authorizes Cloud 9 to access Customer Systems for purposes of providing maintenance, support and troubleshooting services.

(d) Terms of Service, Privacy Policy and Other Requirements. Customer acknowledges and agrees that, in addition to the terms herein, use of the Service shall be subject to Cloud 9’s current Terms of Service (available at https://cloud9.software/terms/) and Privacy Policy (available at https://www.iubenda.com/privacy-policy/42263486). In addition, Customer agrees and understands that it must provide all legally required notifications to, and obtain all legally required consents and authorizations from, patients prior to using the Services, including but not limited to authorizations, HIPAA disclosures, informed consents, and other applicable documents permitting the sharing and/or disclosure of PHI, participation in telemedicine, receipt of marketing communications, or agreement to any recording feature of the Services in compliance with applicable law.

(e) Representations and Warranties. Customer represents and warrants (i) that, to the best of its knowledge, it has the right to disclose and provide to Cloud 9 any data it provides through use and access of the Services including, without limitation, all PHI of Customer’s patients, and that, to the best of its knowledge, no materials of any kind submitted by Customer as Customer Data or otherwise posted, transmitted, uploaded or shared on or through the Services will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material; and (ii) that, to the best of Customer’s knowledge, Customer shall use commercially reasonably efforts to ensure that the Customer’s (and that of its Authorized Users’) use of and access to the Services complies with all applicable laws, rules and regulations. Specifically, Customer represents and warrants that, to the best of its knowledge, all necessary licenses, certifications, and other permissions, which may be required to use the Service in professional practice, are in effect and will be maintained.

(f) Third-Party Applications and Integrations. The Cloud 9 Platform is compatible with and supports a variety of third-party applications and integrations. A list of Cloud 9 approved third-party vendors, applications and integrations is available upon request. Notwithstanding the foregoing, Cloud 9 disclaims any and all warranties, whether express or implied, with respect to any third-party applications or integrations, and the terms and conditions for the use of such third-party applications and integrations is governed exclusively by the agreement between Customer and the third-party vendor. Cloud 9 reserves the right to reject or terminate access to or by any third-party application or integration at any time upon reasonable notice to Customer. Customer covenants and agrees not to provide its user names and/or passwords to any third-party vendor which has not been approved by Cloud 9 or otherwise allow any vendor, application or integration to access the Cloud 9 Platform. Customer acknowledges and agrees that Cloud 9 reserves the right, in its sole discretion, to terminate any credentials of any Customer personnel which is being used by an unauthorized third-party to access the Cloud 9 Platform and/or terminate or suspend Customer’s access to the Cloud 9 Platform should Customer allow, permit or otherwise facilitate any unauthorized third-party to access the Cloud 9 Platform, immediately upon notice to Customer. For the avoidance of doubt, Customer acknowledges and agrees that the violation of this Section constitutes a material breach under Section 6(d) hereof.

5. Pricing and Payment

(a) Invoicing and Payment. Customer shall pay the fees for the right to use the Services (the “Service Fees”) at Cloud 9’s then-current rate or as otherwise set forth on the Order Form. Customer shall pay the Service Fees monthly in advance. All Setup Fees and other initial fees shall be paid as set forth on the Order Form. Any Additional Service Fees shall be billed at Cloud 9’s then-current rates or as otherwise agreed by the parties. All fees and charges under this Agreement shall be made in U.S. Dollars. Any amount payable by Customer hereunder which is past due shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or the highest rate permitted by law, whichever is less. The receipt or request for payment of such amounts shall not prejudice Cloud 9’s rights with respect to any other remedies it may pursue including, but not limited to, termination of this Agreement.

(b) Taxes. The fees set forth herein are exclusive of, and Customer is solely responsible for, any and all taxes in connection with the sale, use or license of the Platform and Services (other than taxes on Cloud 9’s income).

(c) Increase in Fees. No less than thirty (30) days prior to each anniversary of the Commencement Date, Cloud 9 shall advise Customer in writing of any increases (if any) in the Service Fees for the following year of the Subscription Term. The Service Fees shall not increase by more than 10% per year for equivalent services.

6. Term and Termination

(a) Term. This Agreement shall commence on the date Customer (or an authorized representative on its behalf) accepts the terms to this Agreement in completion of the purchase of the Services and shall continue until terminated. Unless otherwise specified in the applicable Order Form, the Initial Subscription Term hereof shall be for a period of forty-eight (48) months, as measured from the Commencement Date. At the end of the Initial Subscription Term, this Agreement shall automatically renew for additional one (1) year periods in accordance with Section 6(b).

(b) Auto-renewal. Customer acknowledges and agrees that Cloud 9 will automatically renew Customer’s Subscription Term on each anniversary of the Commencement Date (the “Automatic Renewal”) unless either party notifies the other of non-renewal at least sixty (60) days prior to the expiration of the then-current Subscription Term.

(c) Suspension of Services for Cause. In addition to its other rights and remedies, Cloud 9 reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement including, without limitation, non-payment of any fees, until such material breach is cured.

(d) Termination. This Agreement may be earlier terminated by either party (i) if the other party breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment of any fees) after receiving written notice of such breach from the non-breaching party; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

(e) Effects of Termination. Upon any expiration or termination of this Agreement:

  1. All rights, obligations and licenses of the parties shall cease, except that all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of this Agreement shall survive;
  2. Customer will make no further use of the Services, provided that no termination will relieve the Customer of the obligation to pay any fees accrued or payable to Cloud 9;
  3. Cloud 9 has no obligation to retain Customer Data for more than thirty (30) days after complete termination of the Service. Customer shall have thirty (30) days from the date of termination of their Services in which to request a copy of their Customer Data, which will be made available to Customer in the same format maintained by Cloud 9.
  4. Upon termination, each party shall delete any of the other party’s Confidential Information still in their possession (with the exception of Customer Data as set forth in the preceding paragraph) from computer storage or any other media including, but not limited to, online and off-line libraries; and each party shall return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information.

(f) Early Termination. Customer may terminate this Agreement at any time upon sixty (60) days prior written notice to Cloud 9. In the event Customer terminates this Agreement pursuant to this Section 6(f), Customer shall not be entitled to any refund of any fees previously paid, and Customer shall pay to Cloud 9 an early termination fee equal to fifty percent (50%) of the remaining Services Fee due during the remainder of the then-current Subscription Term.

7. Limited Warranties; Remedies; Limitation of Liability

(a) Limited Warranty. Cloud 9 warrants that the Services will substantially perform the material functions as set forth in the User Materials; provided, however, that Cloud 9 does not warrant that the Platform or Services will meet Customer’s requirements, that the Services will operate in combinations which Customer may select for use, that the use of the Services will be uninterrupted or error-free or that all errors with the Services will be corrected. Except for the express warranty contained herein, the Platform and Services are provided “AS IS”.

(b) Remedies for Breach. Customer’s sole and exclusive remedy for the breach of the limited warranty provided herein shall be to request that Cloud 9 correct the errors causing such non-performance in connection with Cloud 9’s standard service level response matrix.

(c) Disclaimer of Implied Warranties. OTHER THAN EXPRESSLY SET FORTH ABOVE, CLOUD 9 DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO CUSTOMER OR ANY USER WITH RESPECT TO THE PLATFORM, THE SERVICES OR THE USER MATERIALS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT AND THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

(d) LIMITATION OF LIABILITY. In no event shall Cloud 9 its officers, directors, shareholders, agents or employees be liable to Customer for any special, indirect, incidental, exemplary or consequential damages or loss of goodwill or lost profits or lost opportunities in any way relating to this Agreement or resulting from the use or inability to use the Platform, Services or User Materials or the performance or non-performance of any Services, including the failure of essential purpose, even if Cloud 9 has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based in contract, tort, negligence, strict liability, products liability or otherwise. In no event shall Cloud 9’s liability in the aggregate for any damages to Customer or any third-party ever exceed the sum of all fees paid by Customer hereunder, regardless of the form of action, whether based in contract, tort, negligence, strict liability, products liability or otherwise.

8. Confidentiality

(a) Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data. Cloud 9’s Confidential Information includes the Platform, Services and Cloud 9 Technology. The Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.

(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

(d) Survival. This Section 8 shall survive expiration or termination of this Agreement for any reason whatsoever, and each party’s obligations shall continue (i) with respect to Confidential Information which constitutes a trade secret under applicable law, until such time as such information no longer constitutes a trade secret under applicable law due to no fault of such party and (ii) with respect to all other Confidential Information, for a period of five (5) years after the termination of this Agreement. Each party shall (i) promptly notify the other party of any material unauthorized possession, access, use or knowledge or attempt thereof of the Platform, Services and/or User Materials or other Confidential Information by a person or entity that may become known to such party, (ii) assist the other party in investigating such unauthorized acts and taking action to prevent the continuation or recurrence thereof, and (iii) provide reasonable cooperation with respect to any litigation or other action deemed necessary by the other party to protect its proprietary rights.

9. Miscellaneous

(a) Entire Agreement; Modifications and Amendment. This Agreement, together with the Order Form and BAA (if applicable) represents the entire agreement between the parties and supersedes and replaces all prior oral and written proposals, communications, and agreements with regard to the subject matter hereof between Customer and Cloud 9. Cloud 9 may modify and/or amend this Agreement, the Terms of Service, Privacy Policy and/or other documents governing the parties’ relationship (other than the Order Form) from time to time by written notice to Customer.

(b) Governing Law; Jurisdiction and Venue. This Agreement will be governed in all respects by the laws of the state of Georgia, and the parties do hereby irrevocably consent to the exclusive jurisdiction and venue of the Superior Court of Cobb County, Georgia for any dispute arising out of this Agreement.

(c) Independent Contractors. Neither Cloud 9 nor any of its employees or agents shall be deemed to be employees or agents of Customer, it being understood that Cloud 9 is an independent contractor for all purposes and at all times.

(d) Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties hereto. In no event will any third-party, including any patient of Customer, have any rights hereunder or right to enforce the terms hereof.

(e) Notice. Except for any invoices and billings, any notice required or permitted to be given hereunder by either party to the other shall be in writing, shall be deemed given and effective when (i) hand delivered or (ii) one (1) business day following deposit with a recognized overnight courier or delivery by reliable electronic means (including facsimile or email), at the addresses set forth in the Order Form.

(f) Successors and Assigns; Assignment. This Agreement shall be binding upon and for the benefit of Cloud 9, Customer and their permitted successors and assigns. Except as expressly set forth in the succeeding sentences, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without first providing written notice and obtaining the written consent of the other party, and any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, Cloud 9 may assign this Agreement to its affiliates and as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or business to which this Agreement relates. Customer may not assign this Agreement without the prior written consent of Cloud 9, which consent may be withheld in Cloud 9’s sole and absolute discretion. For the purposes of the foregoing sentence, any merger, sale of stock or change in control of Customer, in which Customer is not the surviving entity, shall constitute an assignment for the purposes hereof. Cloud 9 reserves the right to impose a reasonable transfer and assignment fee in connection therewith, as well as to require Customer execute a new Order Form with respect to any new office(s).

(g) Waiver. No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the party may have under this Agreement.

(h) Sale of an Office. Should Customer sell or transfer an Office to another party, this Agreement and the number of authorized Sessions shall remain with the original Customer. The purchasing party must cease using the Services immediately but may be eligible to obtain their own license by contacting Cloud 9. Charges will apply to perform a data split and for additional training.