SOFTWARE LICENSE AND RELATED SERVICES AGREEMENT
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 orthodontists, and related services (the “Service”). By signing and/or by 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 Service.
This Agreement shall automatically renew for subsequent 12-month terms unless canceled by either party as outlined in section 5 below.
(a) “Confidential Information” means all data, specifications, documents or records that are proprietary and not generally known to third parties; provided, however, information shall not be deemed confidential if it (i) was known to such party prior to disclosure; (ii) is or becomes publicly available other than as a result of a breach of this License; (iii) is disclosed to such party by a third party not subject to an obligation of confidentiality; or (iv) is required by law to be disclosed.
(b) “Products” means the current version (as of the Effective Date) of Cloud 9 Software’s web-based, Cloud 9 Orthodontic Practice Management software suite.
(c) “Services” means, collectively, the services provided by Cloud 9 Software to Customer pursuant to Section 3 of this License.
(d) “Upgrades” means all modifications, updates, and upgrades made to the Products from Time to Time.
(e) “User” means a session created when a Customer employee uses a login and password.
(f) “User Materials” means any user’s manual, guides and other materials provided hereunder with respect to the use or operation of the Products and Services.
(g) “Commencement Date” means the date upon which training has been completed and Customer first begins to actively use the Products and Services in their normal course of operation.
(h) “Initial Term” means a period of 48 months commencing with the Commencement Date.
(i) “Customer Data” may include any or all Customer supplied files (i.e., images and/or documents) and/or database.
(j) “Normal Business Hours” means Monday through Friday from 8 a.m. EST to 8:00 p.m. EST, excluding Cloud 9 Software observed holidays.
(k) “Planned Maintenance” means a period of time in which work is scheduled in advance by Cloud 9 Software with Customer for Cloud 9 Software to complete as scheduled.
(l) “Routine Maintenance” means predictable and routine blackout windows where Cloud 9 Software may or may not be performing service interrupting work with no notice of any kind to Customer. Blackout windows are defined as a) the first Thursday of each calendar month between the hours of 11:00 pm ET and 2:00 am ET and b) the third Saturday of each calendar month between the hours of 10:00 pm ET and 2:00 am ET.
(m) “Unplanned Outage” means an event, which is not scheduled by Cloud 9 Software which prevents Customer from accessing Cloud 9 Software’s Web Services for some indeterminate amount of time.
(n) “Web Services” means HTTP (TCP/80), HTTPS (TCP/443) and Cloud 9 Software’s Print Router (TCP/808).
(o) “Offices” means a location where the Customer conducts patient treatment.
(a) Grant of License. Subject to Customer’s compliance with this License, Customer is granted a perpetual, non-exclusive and non-transferable license to use the Products for Customer’s internal business purposes in accordance with the terms of this License.
(b) Users. The license granted hereunder shall permit the number of Users outlined above to be logged on to the Program. Customer shall obtain a username and password for each of its employees who will be utilizing the Products, but no more than the number of Users set forth above may use the Products at any one time. Customer acknowledges that Cloud 9 Software shall reject the login of any User in excess of the number of Users set forth above. Customer agrees not to encourage or permit its employees and Users to purposefully or willfully avoid or evade the User limits set forth herein.
(c) License Restrictions. Except as expressly permitted by this License, Customer may not: (i) lease, loan, resell, sublicense or otherwise distribute a Product or User Materials; (ii) use a Product 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 Products; (iii) use the Products or User Materials to develop a product or service which is competitive with any of the Products; (iv) distribute or publish keycodes to the Products; or (v) use unauthorized keycodes. Customer shall notify Cloud 9 Software immediately if Customer becomes aware of any unauthorized third-party access to, or use of, a Product, Services or User Materials.
(d) Product Territory. The licenses granted hereunder may be used only for the office(s) where Customer treats or examines patients as set forth above and in any addendum hereto, and Customer agrees not to use the Products for any location where it treats or examines patients other than at such office(s); provided, however, that nothing herein shall prohibit Customer from accessing the Products remotely, provided that Customer complies with all other terms and conditions of this Agreement.
(e) Product Ownership and Restrictions. All intellectual property rights and title to the Products, Services and User Materials shall remain with Cloud 9 Software and/or its suppliers and no interest or ownership therein is conveyed to Customer. This License does not convey to Customer any title or ownership to the Products, Services and User Materials, but only a right of limited use in accordance with the terms of this License. No right to modify (even for purposes of error correction), adapt or translate any Product or create derivative works therefrom is granted to Customer, except as necessary to configure the Product using the menus, options and tools provided for such purposes and contained in the Product. Nothing in this License shall be construed to mean, by inference or otherwise, that Customer has any right to obtain Product source code. 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 Products is prohibited. If Customer wishes to exercise any right to reverse engineer to ensure inoperability in accordance with applicable law, Customer shall first provide written notice to Cloud 9 Software and permit Cloud 9 Software at its discretion, to make an offer to provide information and assistance reasonably required to ensure Product inoperability with other Customer products for a fee to be mutually agreed upon (if any).
- SUPPORT AND ADDITIONAL SERVICES.
(a) Availability. Customer access to Web Services shall be available via supported access methods (i.e., computer browser, mobile browser, etc.) with a service level agreement objective of 99% annual uptime. Exceptions to the objective include 1) Unplanned Outages, 2) Routine Maintenance or 3) Planned Maintenance. Unplanned Outages will be accounted for in annual uptime; however, Routine Maintenance and Planned Maintenance will not affect annual uptime accounting.
(b) Data Services. Cloud 9 Software shall back up Customer Data daily. Recovery time will vary on a case by case basis.
(c) Data Request. Upon request by Customer, Cloud 9 Software shall supply a copy of the Customer’s Data to Customer up to twice per calendar year at no charge other than the cost of media and shipping where applicable. Each additional Customer request shall be subject to a one-time $400 service charge plus media and shipping. Each Customer request shall be fulfilled within no more than twenty (20) Cloud 9 Software business days, excluding Cloud 9 Software’s observed holidays, starting on the Cloud 9 Software business day in which the Customer’s request is received and acknowledged by Cloud 9 Software.
(d) Maintenance. Customer understands and accepts Cloud 9 Software’s Planned Maintenance and Routine Maintenance programs. For each Planned Maintenance event, Customer will work with Cloud 9 Software 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 Software Otherwise, Cloud 9 Software reserves the right to execute as communicated.
(e) Monitoring. Cloud 9 Software shall proactively monitor Customer’s Web Services’ Availability both from and on the Internet as well as from and within our data center(s). Monitoring shall be in effect 24x7x365. Exceptions to the objective include 1) Unplanned Outages, 2) Routine Maintenance or 3) Planned Maintenance. Customer shall not have access to Cloud 9 Software’s monitoring system(s) at any time, but Customer may request that Cloud 9 Software generate Availability reports on occasion for Customer.
(f) Security. Cloud 9 Software shall take commercially reasonable efforts to secure Customer’s data from unauthorized access. This approach centers on maintaining a global security program which includes, but is not limited to, infrastructure and server patch management, security audits, access controls, and incident prevention and response, etc.
(g) Storage Services. Cloud 9 Software shall provide and maintain storage services which will store Customer Data. Storage services work in conjunction with Web Services on Cloud 9 Software’s equipment in accordance with Availability and Security standards.
(h) Support Services. Upon Customer’s payment of the monthly Services Fee (set forth below), Cloud 9 Software shall make available to Customer all Upgrades to the Products as may become available during such period and shall provide Product Support via telephone or email during Cloud 9 Software’s normal business hours.
(i) Termination. Upon termination of this Agreement in accordance with this Agreement’s terms and conditions, Customer’s access to Cloud 9 Software’s Web Services shall immediately cease. Upon Customer’s written request to Cloud 9 Software for Customer’s Data, Cloud 9 Software shall provide the Customer with a copy of all the Customer’s Data in Cloud 9 Software’s current format within no more than 20 business days, excluding Cloud 9 Software’s observed holidays, starting on the Cloud 9 Software business day in which the Customer’s request is received and acknowledged by Cloud 9 Software Customer shall pay for the media and shipping.
(j) Web Services. Upon Customer’s payment of the monthly Services Fee, Cloud 9 Software shall make available and maintain its Internet-based Web Services for Customer’s remote use.
- FEES AND PAYMENT TERMS.
(a) Invoicing and Payment. All payment of fees and charges under this License shall be made in U.S. dollars within fifteen (15) days of the invoice date. Cloud 9 Software shall charge Customer on or about the first (1st) day of each month for the Service Fees for such month. All Initial License Fees and Setup Fees shall be paid upon initial installation of the Products, and any Additional Service Fees shall be paid as the parties may agree. 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 Software’s rights with respect to any other remedies it may pursue including, but not limited to, termination of this License.
(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 Products and Services (other than taxes on Cloud 9 Software income).
(C) Increase in Fees. No less than thirty (30) days prior to each anniversary of the Commencement Date, Cloud 9 Software shall advise Customer in writing of any increases (if any) in any of the Support Services Fee, Data Hosting Fee, or Additional Fees for the following year. The fees shall not increase by more than 10% per year for equivalent services.
(a) Cloud 9 Software may immediately terminate this License and Services hereunder if: (i) Cloud 9 Software notifies Customer in writing of a breach of this License (including Customer’s failure to pay any Fees due hereunder) and such breach is not cured within thirty (30) days; or (ii) Customer makes an assignment for the benefit of creditors or proceedings are commenced by or for Customer under any bankruptcy, insolvency or debtor’s relief laws. Upon the termination of this License for any reason, Cloud 9 Software’s obligation to provide any Services shall immediately cease. Customer acknowledges and agrees that the performance of the Products may be impacted by the failure to obtain the Services. Notwithstanding anything to the contrary herein, the termination of this License shall not relieve Customer from its obligation to pay Fees that remain unpaid and shall not limit either party from pursuing any other available remedies.
(b) Customer may terminate this License and Services hereunder if: (i) Customer notifies Cloud 9 Software in writing at least thirty (30) days prior to the date upon which Customer desires to cease using Cloud 9 Software’s Services and (ii) Customer has paid all fees due hereunder. Upon the termination of this License for any reason, Cloud 9 Software’s obligation to provide any Services shall immediately cease. Customer acknowledges and agrees that the performance of the Products may be impacted by the failure to obtain the Services. Notwithstanding anything to the contrary herein, the termination of this License shall not relieve Customer from its obligation to pay Fees that remain unpaid and shall not limit either party from pursuing any other available remedies.
- CUSTOMER COMPUTER HARDWARE AND EQUIPMENT. At all times, Customer shall be solely responsible for acquiring or using such computer hardware, communications devices, networks and services and other equipment necessary to run the Programs and interface with Cloud 9 Software’s equipment, services and other computer hardware, and Customer’s failure to acquire, use or maintain such equipment or services shall not affect Cloud 9 Software’s right to payment of the Fees set forth herein for the Products and Services.
- LIMITED WARRANTIES.
(a) Limited Warranty. Cloud 9 Software warrants that the Products will substantially perform the material functions as set forth in the User Materials for one (1) year from the Commencement Date; provided, however, that Cloud 9 Software does not warrant that the Products will meet Customer’s requirements, that the Products will operate in combinations which Customer may select for use, that the use of the Products will be uninterrupted or error-free or that all errors with the Products will be corrected. Except for the express warranty contained herein, the Products 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 Software correct the errors causing such non-performance.
(c) Disclaimer of Implied Warranties. OTHER THAN EXPRESSLY SET FORTH ABOVE, CLOUD 9 SOFTWARE DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO CUSTOMER OR ANY USER WITH RESPECT TO THE PRODUCTS, 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 Software its members, managers, officers, directors, 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 License or resulting from the use or inability to use the Programs, Services or User Materials or the performance or non-performance of any Programs, including the failure of essential purpose, even if Cloud 9 Software 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 Software’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.
(e) CONFIDENTIALITY. Except as otherwise provided in this License, each party shall maintain the Confidential Information of the other party in accordance with the following: (i) protect the confidential and proprietary nature of the Confidential Information and shall not disclose the same except to its employees, agents or contractors who are legally bound to respect the confidentiality thereof and have a “need to know” the same; (ii) treat the Confidential Information with at least the same concern and protective measures accorded its Confidential Information; (iii) use great care in the selection and assignment of personnel to work with the Confidential Information and instruct all personnel so assigned to take all reasonable precautions necessary to prevent unauthorized disclosure; and (iv) not at any time disclose the Confidential Information, whether directly or indirectly, to any third-party (except as otherwise permitted by this License or required by law or regulation and then only after providing the other party with such notice of, and opportunity to object to, such requirement as may be reasonable under the circumstances) or use the Confidential Information for any purpose other than the proper and lawful performance of, and exercise of such party’s rights under, this License.
This Section 5 shall survive expiration or termination of this License 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 date such Confidential Information is disclosed to such party. Each party shall (x) promptly notify the other party of any material unauthorized possession, access, use or knowledge or attempt thereof of the Programs, Services and/or User Materials or other Confidential Information by a person or entity that may become known to such party, (y) assist the other party in investigating such unauthorized acts and taking action to prevent the continuation or recurrence thereof, and (z) provide reasonable cooperation with respect to any litigation or other action deemed necessary by the other party to protect its proprietary rights.
(f) FORCE MAJEUR. Any party’s delay in, or failure of, performance under this License shall be excused where such delay or failure is beyond a party’s control, including as a result of an act of nature, fire, or other catastrophe, enemy, hostile governmental or terrorist action, electrical, computer software or mechanical failure, internet disruptions, work stoppage, delays or failure to act of any carrier or agent, direction or effect of an order from a court or government agency or body, or any other such cause beyond a party’s direct control. Any party seeking to be excused for a delay in performing any obligation due to force majeure must exercise reasonable efforts to minimize the delay in performing such obligation.
(a) Entire Agreement. This License 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 Software. This License may only be amended by an instrument in writing, executed by Customer and Cloud 9 Software.
(b) Counterparts. This License may be executed in two (2) or more counterparts, each of which shall be deemed an original for all purposes, and all of which shall constitute but one and the same instrument.
(c) Governing Law. This License will be governed in all respects by the laws of the state of Georgia, and the parties do hereby consent to the exclusive jurisdiction and venue of the Superior Court of Cobb County, Georgia for any dispute arising out of this Agreement.
(d) Independent Contractors. Neither Cloud 9 Software nor any of its employees or agents shall be deemed to be employees or agents of Customer, it being understood that Cloud 9 Software is an independent contractor for all purposes and at all times, and Cloud 9 Software shall be solely responsible for the withholding or payment of all federal, state and local personal income taxes, social security, unemployment, sickness and disability insurance and other payroll taxes with respect to its employees, including contributions from them when and as required by law.
(e) Third-Party Beneficiaries. This License 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.
(f) 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) when followed-up via mail, at the addresses set forth above.
(g) Assignment. This License may not be assigned by Customer without prior written consent of Cloud 9 Software which consent may be withheld for any reason or no reason.
(h) 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 License.
(i) Sale of an Office. Should Customer sell or transfer an Office to another party, the License and number of Users remain with the original Customer. The purchasing party must cease using the software immediately but may be eligible to obtain their own License by contacting Cloud 9 Software. Charges will apply to perform a data split and additional training may be necessary.