enCloud9 LLC End User License Agreement

(EULA)

THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS BETWEEN ENCLOUD9, LLC (ENCLOUD9) AND THE PERSON AND/OR LEGAL ENTITY WHO SUBSCRIBES TO THE SOLUTION(S) PROVIDED WHICH ACCOMPANIES THIS AGREEMENT (THE “USER”). THIS AGREEMENT GIVES THE USER THE RIGHT TO ACCESS AND USE ENCLOUD9’S SOLUTION(S) THAT ARE SUBSCRIBED TO FROM ENCLOUD9. ENCLOUD9 WILL CHARGE FOR EVERY USER WHO HAS ACCESS TO THE SOLUTIONS. ENCLOUD9 IS WILLING TO GRANT A USER THE RIGHT TO ACCESS AND USE THE ENCLOUD9 SOLUTION(S) ONLY IF THE USER ACCEPTS ALL OF THE TERMS OF THIS AGREEMENT AND PAYS OR HAS PAID ENCLOUD9 THE FULL SUBSCRIPTION PRICE FOR USE OF THE LICENSE TO WHICH THE USER HAS SUBSCRIBED. THE PRICE FOR THE SOLUTION(S) IS PER USER AND MUST BE LICENSED FOR ALL INDIVIDUALS WHO HAVE ACCESS TO THE SOLUTIONS.

THE USER ACKNOWLEDGES THAT THE USER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF THE USER DOES NOT AGREE TO ALL OF THE TERMS IN THIS AGREEMENT, THE USER SHOULD NOT ACCESS OR OTHERWISE UTILIZE THE PRODUCTS BECAUSE NO LICENSE SHALL HAVE BEEN GRANTED THERETO.

1. LICENSE

In consideration of the payment of the subscription price for the right to use enCloud9’s solutions and the User’s adherence to all provisions of this Agreement, enCloud9 grants the User a personal, non-exclusive, non-transferable license to access and use enCloud9’s solutions.

2. RESTRICTIONS

User may not copy or transfer the solution to others, in whole or in part, except as expressly provided in this Agreement. enCloud9 Apps may not be copied or replicated in any way for any purpose. The solution contains trade secrets of enCloud9, and the User may not reverse engineer, disassemble, decompile, or translate the solutions or otherwise attempt to derive its source code or the source code through which the solution is accessed or authorize any third party to do any of the foregoing. The license granted hereunder is personal to the User, and any attempt by the User to transfer any of the rights, duties, or obligations hereunder shall terminate this Agreement and be void. The User may not rent, lease, loan, resell, or distribute the solution or any part thereof in any way, including, but not limited to, making the solution available to others via shared access to a single computer, a computer network, or by sharing access information, which includes the User’s Username and Password.

3. TERM

Users must subscribe to the service each month. Renewal of monthly subscription will be automatic until User communicates in writing the desire to terminate the subscription. The charge is paid at the beginning of each month and will be paid electronically only. enCloud9 will process User credit card or ACH for each solution subscribed, charging for all User subscribed solutions until the last day of the current month. If the credit card transaction fails, the solutions will expire. This Agreement and license granted herein will terminate at the end of the last day of the month subscribed and for which payment has been received in full unless payment is processed for service(s).

4. TERMINATION

This Agreement will terminate immediately if the User breaches any term of this Agreement. Further, in the event of a termination or expiration of any agreement between enCloud9, the User’s right to access and use the solutions may also terminate or expire without prior notice to the User. A User may terminate this Agreement at any time by notifying enCloud9 electronically prior to the 1st of the month (payment processing). Upon receipt of notice of termination from the User, the license and the User’s access to the solution(s) shall expire on the last day of the month. User must immediately remove the solutions from all environments and shall be obligated for payment until this occurs.

5. OWNERSHIP

enCloud9’s solutions are the property of enCloud9 and are subject to applicable patent, copyright, trade secrets, trademarks, and other proprietary rights. The solutions are only licensed to the User for use only under the terms of this Agreement, and enCloud9 reserves all rights not expressly granted to the User.

6. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN, ENCLOUD9’S SOLUTION(S) ARE PROVIDED “AS IS” AND ENCLOUD9 MAKES NO REPRESENTATIONS OR WARRANTIES. ENCLOUD9 EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, FOR THE SOLUTION(S) AND ANY OTHER MATERIAL PROVIDED TO THE USER BY ENCLOUD9, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ENCLOUD9 DOES NOT WARRANT THAT THE SOLUTION(S) ARE ERROR-FREE, THAT THEIR OPERATION WILL BE UNINTERRUPTED, OR THAT SOLUTION(S) WILL MEET ANY PARTICULAR USER REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENCLOUD9 MAKES NO WARRANTY AND PROVIDES NO ASSURANCE THAT THE SOLUTION(S) WILL MEET THE CERTIFICATION REQUIREMENTS OF ANY REGULATORY AUTHORITY OR OTHER ASSOCIATION LICENSING AGENCY WITHIN OR OUTSIDE OF THE UNITED STATES.

7. GOVERNING LAW, JURISDICTION, AND VENUE

This Agreement shall, for all purposes, be governed by and interpreted in accordance with the laws of the State of Nebraska. Any legal suit, action, or proceeding arising out of, or relating to this Agreement, shall be commenced in a federal court in Omaha, Nebraska, or in state court in Sarpy County, Nebraska, and each party hereto irrevocably submits to the personal and exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any right which it may have to transfer or change the venue of any such suit, action or proceeding, except that in connection with any suit, action or proceeding commenced in a state court, each party retains the right to remove such suit, action or proceeding to federal court to the extent permissible.

8. LIMITATION OF LIABILITY

THE LICENSOR SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE LICENSOR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL THE LICENSOR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USER’S USE OF THE SOFTWARE (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY THE LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT FOR THE SOFTWARE LICENSED HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. THE LICENSOR SHALL NOT BE LIABLE FOR ANY DELAYS OR FAILURES IN PERFORMANCE RESULTING FROM ACTS BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, WAR, OR ACT OF TERRORISM.

9. WAIVER

No failure to enforce any term of this Agreement shall constitute a waiver of such term in the future unless such waiver so provides by its terms.

10. SEVERABILITY

If any part of this Agreement is for any reason found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be affected, and the same shall remain in effect.

11. PROMOTION

User agrees that their company logo and name may be displayed on our website for promotional purposes.