IMPORTANT–READ CAREFULLY: By clicking the button located at the bottom of this document labeled “I ACCEPT”, You agree to the following provisions with ToolsCloud, Inc. (“ToolsCloud”) governing the terms of use of the ToolsCloud website or any ToolsCloud products, software and services, including computer software and, as applicable, associated media, printed materials, and “online” or electronic documentation (collectively the “Services”) for each Month Term purchased by You.  This license agreement (“Agreement”) and Legal Notices (“Notices”), incorporated herein by reference, may be found at http://www.toolscloud.com/legal-notices(the “Web Portal”).

You may not access the Services if You are Our Direct Competitor, except with Our prior written consent.  In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

ToolsCloud reserves the right to change or revise this Agreement at any time.  In the event of any such revisions, You will be required to indicate Your acceptance of the revised Agreement, by clicking on the appropriate box, before resuming use of the Services.

1.         DEFINITIONS

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means these online terms of use, any Legal Notices, order forms, whether written or submitted online on the Web Portal and any materials available on the Web Portal specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Us from time to time in Our sole discretion.

“Content” means text, software or graphics and other materials which may be viewed on or accessed through the Purchased Services.

“Direct Competitor” means a business that hosts, delivers and manages secure, subscription-based online software development tools and services.

“Documentation” means any Software Product documentation files accompanying the Purchased Services.

“License Fees” means the fees payable by You for the Purchased Services and other services identified in this Agreement.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Object Code” means a sequence of instructions that a computer processor can understand but that are difficult for a human to read or modify.

“Personal Information” means any data submitted by You, such as name, address and credit card information, for the purchase of Our Services.

“Purchased Services” means Services that You or Your Affiliates purchase from ToolsCloud.

“Services” means the online, Web-based platform provided by Us through the Web Portal and/or other designated websites as described in the User Instructions, that are ordered by You, including associated offline components and access to Third Party Applications.

“Service Bureau” means a company which provides business and software services for a fee, for instance technology based services.

“Software Code” means the arrangement of programming statements and instructions that are written by a programmer.  Software Code includes both Source Code and Object Code.

“Software Product” means the programs(s), including object, source code, libraries and associated Documentation pertaining to the operation of the Purchased Services provided by Us through the Web Portal and/or other designated websites as described in the User Instructions.

“Source Code” means any text written in any computer programming language with a text editor or a visual programming tool and then saved in a file.  The source code is the preferred Software Code to which modifications are made.

“Subscription Start Date” means the earlier of either the date as recorded on an order form or the date You begin using the Services.

“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.  Third Party Applications are licensed separately by You and are not governed by this Agreement.

“ToolsCloud” means the online Services located at the Web Portal or at any successor websites.

“User Instructions” means the online user instructions for the Services, accessible through the website at the Web Portal.  NOTE:  http://www.toolscloud.com/doc/guide as updated from time to time, and any Documentation provided by Us and/or vendors of Third Party Applications.  You acknowledge that You have had the opportunity to review the User Instructions.

“Users” means individuals who are authorized to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Us.

“We,” “Us” or “Our” means the ToolsCloud company described in Section 15 (Notices, Governing Law and Jurisdiction).

“You” or “Your” means the company or other legal entity for which You are accepting this Agreement and Affiliates of that company or entity.


2.1  Application.  The terms of this Agreement apply to all Users of the Purchased Services, including Users and contributors of any Content to the Services.

2.2  Third Party Applications.  The Purchased Services may include links and/or access to Third Party Applications which are not owned or maintained by ToolsCloud.  ToolsCloud has no control over and assumes no responsibility for the content or functionality of any Third Party Applications.  By using the Purchased Services, You release ToolsCloud from any liability arising from Your Use of any Third Party Applications.

2.3. Provision of Purchased Services.  We shall make the Purchased Services available to You pursuant to this Agreement during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.4. User Subscriptions. Unless otherwise specified in an applicable order form, (i) Services are purchased as User subscriptions and may be accessed by only the specified Users; (ii) each subscription requires the use of a login and password assigned when the account is activated; and (iii) additional User subscriptions may be added.  We reserve the right to issue User credentials on a per seat or per account basis, which will be clearly indicated on any applicable order form and acknowledgement by Us of account creation and/or payment of fees (“Transaction Records”).  User subscriptions are for designated Users and cannot be shared or used by more than one User, as defined in the Transaction Records.  You expressly acknowledge that the Purchased Services may not be used for any Service Bureau applications.

3.         LICENSE TERMS

3.1  Purchased Services.  ToolsCloud grants You a non-exclusive, non-transferable license to use the Purchased Services with which this license is distributed, including any Software Products and Documentation provided pursuant to the Purchased Services for which You have paid the License Fee for each Month Term, provided that You agree to be bound by the terms of this License Agreement.

3.2  Licenses required for Third Party Applications.  The Purchased Services enable You to run Third Party Applications in the ToolsCloud environment. You are responsible for complying with any licenses necessary to operate any such Third Party Applications.  A general overview of the licensing requirements for the Third Party Applications can be found in the Legal Notices document posted at the Web Portal and incorporated herein by reference, including a link to the applicable Third Party Application licenses.  You acknowledge that you reviewed these Legal Notices and the applicable Third Party Application licenses and agree to and be bound by all terms and conditions thereof.


4.1  Support Services.  ToolsCloud will provide You with error corrections, bug fixes, patches, updates and other modifications to the Software Product and Documentation that are made generally available to its customers, together with resolution of all substandard performance  arising from Your Use of the Software Products, Documentation and Purchased Services (collectively, “Support Services”).  Use of and availability of the Support Services is governed by ToolsCloud policies and programs described in the online Documentation, and/or in other provided materials.  Such Support Services may only be obtained by access to the online support links found at the Web Portal.  Support Services may also include the following:

a.         Corrections of material defects in the Software Products so that they operate in substantial conformance in all material respects with any Documentation; and

b.         Periodic updates of the Software Product and Documentation, if available, that may incorporate (i) corrections of any substantial defects, (ii) fixes of any minor bugs, and (iii) at the sole discretion of ToolsCloud, enhancements to the Software Product and Purchased Services.

Online assistance, relating to usage queries and help desk requests, may be obtained for an additional fee, as described at the Web Portal.

ToolsCloud will make all commercially reasonable efforts to respond to requests for Support Services within 48 hours.  Any supplemental ToolsCloud Software Code provided to You as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this Agreement.  Support Services will be available from 8 a.m. to 9 p.m., Eastern United States time, Monday through Friday.

4.2 Our Responsibilities. We shall: (i) provide to You with Support Services for the Purchased Services at no additional charge; (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

We will use commercially reasonable efforts to make the Software Product and Documentation available with an uptime percentage of at least 99%, based upon 5 minute incremental periods during each Month Term.  In the event this uptime is not met for a given Month Term, You will be eligible to receive a credit equal to 10% of Your bill for that Month Term.

We will apply any such credits only against future Software Product payments otherwise due from You. Credits shall not entitle you to any refund or other payment from Us.

4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use; and (iii) use the Purchased Services only in accordance with the User Instructions, attached hereto, and applicable laws and government regulations.  http://www.toolscloud.com/doc/guide .  You shall not (a) make the Purchased Services available to anyone other than Users; (b) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Purchased Service in any way; (c) use the Purchased Services to store or transmit infringing, obscene, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (d) use the Purchased Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Purchased Services or third party data contained therein; (f) attempt to gain unauthorized access to the Purchased Services or their related systems or networks, modify or make derivative works based upon the Purchased Services; or (g) reverse engineer or access the Purchased Services in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Purchased Services, or (iii) copy any ideas, features, functions or graphics of the Purchased Services.  For the purpose of clarity, the foregoing shall not apply to any unmodified open source Third Party Applications.

4.4. Usage Limitations. Purchased Services may be subject to other limitations, such as, for example, limits on disk storage space.  Any such limitations are specified in the User Instructions.

4.5.  Discontinuation of Services.  ToolsCloud reserves the right to discontinue any aspect of the Purchased Services at any time.

5.         USE OF CONTENT

5.1.  Condition of Content.  Content is provided to You AS IS.

5.2  Third Party Application Content.  ToolsCloud is not responsible for the accuracy, usefulness, safety or intellectual property rights relating to any Third Party Application Content.  You agree to waive any legal or equitable rights or remedies against ToolsCloud with respect to this Third Party Application Content to the extent permitted by applicable law.


6.1  Submissions.  When you provide Us with Content through use of the Purchased Services, You grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right to exercise any and all copyright, trademark, publicity and database rights (but no other rights) You have in the Content, for the purpose of storage and maintenance of the Content.

6.2  Responsibility for Content.  You are solely responsible for the consequences of submitting any Content through the Purchased Services.

6.3  Proprietary Rights.  You agree that any Content You submit through the Purchased Services does not contain third party copyrighted material or material which is subject to other third party proprietary rights unless You have permission from the rightful owner of the material.


7.1  Altering of Software.  You may not reverse engineer, decompile, or disassemble any ToolsCloud Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

7.2  Assignment.  You may not transfer, sub-license or assign this Agreement or its rights hereunder and any such attempted transfer, sub-license or assignment shall be void.


8.1. User Fees. You shall pay all fees specified in all order forms hereunder.  Except as otherwise specified herein or in an order form, (i) fees are quoted and payable in United States dollars; (ii) fees are based on services purchased and not actual usage; (iii) payment obligations are noncancelable and fees paid are non-refundable; and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the order form.  User subscription fees are based on monthly periods that begin on the subscription start date and extend monthly for the number of calendar days in the month beginning each monthly period (each a “Month Term”).

8.2. Invoicing and Payment. You will provide Us with valid and updated credit card information.  You authorize Us to charge such credit for all Services listed in the order form for the Month Term subscriptions as set forth in Section 14.2 (Term of Purchased User Subscription).  Such charges shall be made in advance on the anniversary date beginning each Month Term. You are responsible for maintaining complete and accurate billing and contact information.

8.3. Overdue Charges. If any charges are not received from You by the first day of the month, then the subscription will terminate.

8.4. Payment Disputes. We shall not exercise Our rights under Section 8.3 (Overdue Charges) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

8.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “ Taxes”).  You are responsible for paying all Taxes associated with Your purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.  For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.


9.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all right, title and interest in and to the Services, including all copyrights and other related intellectual property rights.  No rights are granted to You hereunder other than as expressly set forth herein.

9.2. Restrictions. You shall not permit any third party to access the Services except as permitted herein or in an order form.

9.3. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

9.4  Third-Party Applications.  You are responsible for complying with any licenses necessary to operate Third Party Applications, including but not limited to, Third Party Applications which the Purchased Services enable You to utilize for Your own Use or for the benefit of Your end users.

10.                   CONFIDENTIALITY

10.1. Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential 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. Your Confidential Information shall include any personal information provided by You in paying for Our services; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and any order forms.  However, Confidential Information (other than Your person information used to purchase Our services) shall 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.

10.2. Protection of Confidential Information.  Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such 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.

10.3. Protection of Your Personal Information.  Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Information.  We shall not (a) disclose Your Personal Information except as compelled by law in accordance with Section 10.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (b) access Your Personal Information except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

10.4. Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.

11.                   WARRANTIES AND DISCLAIMERS

11.1. Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Instructions, and (ii) subject to Section 3.1, the functionality of the Services will not be materially decreased during a subscription term.  For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 14.3 (Termination at Will) below.

11.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.


12.                   MUTUAL INDEMNIFICATION

12.1. Indemnification by Us.  We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Purchased Services as permitted hereunder, excluding use of any Third Party Applications, infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.

12.2. Indemnification by You.  You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Purchased Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.

12.3. Exclusive Remedy.  This Section 12 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.





14.1. Term of Agreement.  This Agreement commences on the date Your first subscription fee is received and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.

14.2. Term of Purchased User Subscriptions.  User subscriptions purchased by You commence on the subscription date and continue on a monthly basis until (i) payment is not received or (ii) notification by You of termination of the subscription.  Except as otherwise specified in any applicable order form, all User subscriptions shall automatically renew for an additional period equal to one month, starting on the anniversary date corresponding to the beginning of each Month Term , unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant month.  The per-unit pricing during any such month shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior month, in which case the pricing increase shall be effective upon renewal and thereafter.

14.3  Termination.  Without prejudice to any other rights, ToolsCloud may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement or if You violate any ToolsCloud policy included with any order form, Documentation or posted at the Web Portal.  In such event, You must destroy both electronic and tangible copies, if any, of any Content relating to the Purchased Services other than User Content of Third Party Applications, and ToolsCloud may suspend or deactivate Your use of the Purchased Services with or without notice.

14.4. Termination at Will.  A party may terminate this Agreement at will: (i) upon 30 days written notice to the other party, or (ii) 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.  Termination is effective on the last day of the month in which termination is requested.  In such event, You must destroy both electronic and tangible copies, if any, of any Content relating to the Purchased Services other than User Content of Third Party Applications, and ToolsCloud may suspend or deactivate Your use of the Purchased Services with or without notice.

14.5. Refund or Payment upon Termination.   No refund of fees will be given upon termination of the Purchased Services.

14.6. Surviving Provisions.  Section 8 (Fees and Payment for Purchased Services), 9 (Proprietary Rights), 10 (Confidentiality), 11.3 (Disclaimer), 10 (Mutual Indemnification), 13 (Limitation of Liability), 15 (Notices, Governing Law and Jurisdiction) and 16 (General Provisions) shall survive any termination or expiration of this Agreement.


15.1. Notice.   We may give notice by means of a general notice pursuant to delivery of the Purchased Services, email to Your address on record in Our account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Our account information.  Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).  You may give notice to Us (such notice shall be deemed given when received by Us) at any time by any of the following: letter sent by confirmed electronic mail to Us at the following address: info@toolscloud.com.

15.2. Governing Law and Jurisdiction.  This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Allegheny County, Pennsylvania.  No text or information set forth on any other purchase order, preprinted form, or document (other than an order form, if applicable) shall add to or vary the terms and conditions of this Agreement.

15.3.  Arbitration.   In the event of any dispute in connection with this Agreement, including without limitation, any dispute relating to the construction or interpretation of this Agreement, You and ToolsCloud (collectively the “Parties”) agree to promptly provide notice of such dispute to one another and then first engage each other, within thirty (30) days of receipt of such notice, in bona fide good faith discussions and negotiations to resolve such dispute.  If matters remain in dispute after such discussions and negotiations, the Parties agree that such dispute shall be finally resolved by binding arbitration by one (1) arbitrator agreed upon and designated in writing by the Parties and in accordance with the commercial arbitration rules of the American Arbitration Association, and judgments upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereover.  Both Parties shall bear equally the cost of the arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately).  The place of the arbitration shall be Pittsburgh, Pennsylvania, and the language of arbitration will be English.


16.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

16.2. Relationship of the Parties. The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

16.3. No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement.

16.4. Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

16.5. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

16.6. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement.

16.7. Assignment. You may not assign Your obligations under thus contract absent written notice to Us and the execution of a similar Subscription Agreement by Your assignee.

16.8. Entire Agreement.  This Agreement, including all exhibits and addenda hereto and all order forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.  However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the terms of such exhibit, addendum or order form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding order forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

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