TERMS AND CONDITIONS

TERMS AND CONDITIONS OF NINE APPS FOR USE

Last modified [June 27, 2019]

Some portions of Nine are modifications based on work created and shared by Google. This product uses Microsoft® Exchange ActiveSync® technology licensed from Microsoft. All other product and company names mentioned herein may be trademarks or tradenames of their respective owners. The content of this terms and conditions is furnished for informational use only, is subject to change without notice, and should not be construed as a commitment by 9Folders, Inc. (“9folders,” “the Company,” “we,” “us,” or “our”). 9folders assumes no responsibility or liability for any errors or inaccuracies, which may appear in the informational content contained in this document.

This Terms of Service (“Agreement” or “Terms of Service”) is a binding agreement between you (“End User” or “you”) and 9Folders (“9folders, Inc.”, “we”, “us”, and “our”). This Agreement governs your use of the Nine mobile applications on iOS and Android as available, (including all related documentation, the “App” or “Application”). The Application is licensed, not sold, to you. These Terms of Service do not govern your use of the websites located at 9folders.com (“Site”). The Site is governed by the 9Folders, Inc.

By downloading the app, clicking “Install,” from Google Play Store or clicking and installing the app from the website which asserting acceptance through purchasing from the 9folders, you (a) acknowledge that you have read and understand this agreement; (b) Represent that you are of legal age to enter into binding agreement; and (c) accept this agreement and agree that you are legally bound by its terms. If you do not agree to these terms, do not use the application and delete it from your mobile device.

We may revise and update this Agreement from time to time in our sole discretion. Changes are effective immediately when we notify you by sending an email or posting them to the Application and apply to all access to and use of the Application thereafter. However, any changes to the dispute resolution provisions will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Application. Your continued use of the Application following the posting of the revised Agreement means that you accept and agree to the changes. You are expected to check this Agreement from time to time so you are aware of any changes, as they are binding on you.

1. Definitions.

"License Type" for the Software is set forth in the Quote (or order form) and described in the definition of this document attached hereto.
The following licensing terms and conditions apply to the Quote entered into by and between the Customer (as identified on the Quote) and the Licensor (as identified on the Quote) (the “License Agreement” or the “Enterprise License Agreement”). Capitalized terms used but not defined in this document have the meanings assigned to them elsewhere in the License Agreement or the Enterprise License Agreement.

"License" means the terms of use or End User License Agreement between COMPANY and an End User.

"Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License.

“License Fees” shall mean unless otherwise provided in the Quote, Licensor may invoice Customer for all license fees, other fees, and charges due thereunder immediately following the Term Start Date.

"Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity.

"Authorized Users" shall mean unless otherwise specifically provided in the Quote, Authorized Users are defined as employees of Customer;

“Authorized Use” shall mean Authorized Users may use the Software (App or Service) in the operating software environment specified in the applicable Quote (or order form or In-app purchase of the App market). Unless otherwise expressly permitted in the Quote, Customer shall not permit any subsidiaries, affiliated entities, or third parties to access the Software.
"You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License.

2. License Grant

The Grant of License. Any Software (apps) licensed hereunder shall be licensed subject to the terms and conditions enclosed in the app and shall be so licensed upon full payment of applicable fees hereunder. each such license shall be a limited (during the licensed period), worldwide, nonexclusive, and nontransferable license to use the Software, solely to perform those functions defined in the Documentation, and subject to all limitations and restrictions contained herein (“Use”). Generally, the license shall be granted if Customers shall purchase this Nine app (The "App") after downloading from the markets and accepting these terms and conditions of Nine apps for use (hereafter, "Terms"). However, if you do not agree with these terms, you should immediately uninstall this app and discontinue its use. Continued use of the app signifies your continued acceptance of these terms and any changes to them. These terms form a binding legal contract between you and 9folders, Inc. ("9folders").

The Grant of Enterprise License. Except for the case that Customers personally purchased Nine app on the Play Store, any software (apps) licensed hereunder shall be licensed pursuant to a separate Quote. Generally, this enterprise license shall be applied for the Nine Work apps. As specifically stated in the Quote written by enterprises requests, each such license shall be a fixed term, worldwide, nonexclusive, royalty-free during the contracted period (upon full payment of license fees), and nontransferable license to use the Software, solely to perform those functions defined in the Documentation, and subject to all limitations and restrictions contained herein (“Use”). The Enterprise license shall expire upon expiration of the Term described on the Quote unless and until renewed as per the terms and conditions of renewal set forth in the Quote. Customer shall request a written renewal of the License Agreement within 30 days prior to the expiration of the Agreement.

Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined in Section 6) or permit others to do so. Disassembling, decompiling and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this License Agreement. Customer may use Licensor’s Confidential Information solely in connection with the Software and pursuant to the terms of this License Agreement.

3. Payment

License Fees. Unless otherwise provided in the Quote, Licensor may invoice Customer for all license fees, other fees, and charges due thereunder immediately following the Term Start Date. In case of apps selling on the Google Play Store, all users can use the app for the trial for 14 days (two weeks). Provided that you purchased the app with the specified price in the Google play store after the trial, users acquire the license subject to section 2.

Payment Due Date. Unless otherwise purchased in Google Play Stores, in case you are purchased through the invoice sent by Licensor, all invoices shall be payable by Customer in United States dollars and payment shall be due fifteen (15) days after the invoice date. Notwithstanding any provision to the contrary, any and all payments required to be made hereunder shall be timely made, and no payments to Licensor shall be withheld, delayed, reduced or refunded if Licensor has fully performed its material obligations and its inability to meet any schedule or delivery requirements is caused by Customer’s failure to provide certain of its facilities, computer resources, software programs, project management activities, personnel, and business information as are required to perform any of Licensor’s obligations hereunder.

Purchase Orders. Customer may provide Licensor with a valid purchase order, upon execution of a Quote. Notwithstanding anything to the contrary herein, purchase orders are to be used solely for Customer’s accounting purposes and any terms and conditions contained therein shall be deemed null and void with respect to the parties’ relationship and this License Agreement. Any such purchase order provided to Licensor shall in no way relieve Customer of any obligation entered into pursuant to this License Agreement including, but not limited to, its obligation to pay Licensor in a timely fashion.

4. DELIVERY

Delivery. Unless otherwise specifically provided in the Quote, Customers shall download Nine apps on its market stores such as Google Play Store, Apple App Store, etc. For purposes of this License Agreement, delivery shall be deemed complete in an even case when Customers shall download or receive from the app market or using electronic methods without physically delivering the Master Copy to Customer. As such, the Software may contain time-out devices, counter devices, or other similar devices intended to prevent the Software from being used beyond the bounds of the license. Customer consents to such activity and agrees not to disable, attempt to disable, or tamper with the license management system or any other such license enforcement technology.

5. OWNERSHIP

Reservation of Rights. By signing the applicable Quote, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Licensor Materials provided to Customer. Licensor shall own all right, title, and interest in such Software or Licensor Materials, subject to any limitations associated with intellectual property rights of third parties. Licensor reserves all rights not specifically granted herein.

Marks and Publicity. Licensor and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), shall be the sole and exclusive property of the respective owning party, which shall own all right, title and interest therein. Licensor may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Licensor may include Customer’s name and/or logo within its list of customers for general promotional purposes. Licensor shall comply with Customer’s trademark use guidelines as such are communicated to the Licensor in writing and Licensor shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other rights in any Marks except as provided in this Section.

Feedback. Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about Nine app or our products or Services (collectively, “Feedback”), is non-confidential and will become the sole property of 9Folders. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

6. CONFIDENTIALITY

Definition. All information which is defined as Confidential Information hereunder in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. visually or orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. “Confidential Information” may include all technical, product, business, financial, and other information regarding the business and software programs of either party, its customers, employees, investors, contractors, vendors and suppliers, including, but not limited to, programming techniques and methods, research and development, computer programs, documentation, marketing plans, customer identity, and business methods. Without limiting the generality of the foregoing, Confidential Information shall include all information and materials disclosed orally or in any other form, regarding Licensor’s software products or software product development, including, but not limited to, the configuration techniques, data classification techniques, user interface, applications programming interfaces, data modeling and management techniques, data structures, and other information of or relating to Licensor’s software products or derived from testing or other use thereof. Confidential Information includes all such Confidential Information that may have been disclosed by either party to the other party, before or after the first Term Start Date. Confidential Information includes information generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. For clarity, the term ‘Confidential Information’ does not include any personally identifiable information. Obligations with respect to such information (if any) will be set forth in a separate written agreement between the parties. For the purpose of this entire Section 6, ‘Licensor’ shall include all its Affiliates. “Affiliate” under this License Agreement shall mean any entity, directly or indirectly, controlled by or under common control with or controlling a party to this License Agreement.

Confidentiality of Software. The following is deemed Licensor Confidential Information with or without marking or written confirmation: (i) the Software and other related materials furnished by Licensor; (ii) the oral and visual information relating to the Software and provided in Licensor’s training classes; and (iii) Licensor’s representation methods of modeled data.

Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality to the receiving party; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.

Ownership of Confidential Information. Nothing in this License Agreement shall be construed to convey any title or ownership rights to the Software or other Licensor Confidential Information or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in Licensor Confidential Information to the Customer. Nothing in this License Agreement shall be construed to convey any title or ownership rights to Customer’s Confidential Information or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in the Customer Confidential Information to Licensor. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce, or distribute the Confidential Information except as expressly permitted in this License Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction, or distribution of the Confidential Information.

Non-Disclosure. Each party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees, who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section 6. Notwithstanding anything contained hereunder and subject to the Confidentiality obligations set forth under this Section 6, all references to Licensor or its employees under this Section 6 shall be deemed to include such employees of Affiliates and Subcontractors and Licensor will ensure that its Subcontractors abide by the applicable terms of the License Agreement.

Suggestions/Improvements to Software. Notwithstanding this Section 6, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Licensor materials provided to Customer shall be owned by Licensor, and Customer hereby agrees to assign any such rights to Licensor. Nothing in this License Agreement or the applicable Quote shall preclude Licensor from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Licensor in the performance of any services hereunder.

Return of Confidential Information. Upon the written request of disclosing party, receiving party shall return or destroy (and certify such destruction in a signed writing) all Confidential Information of disclosing party, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. Each party may retain a copy of the other party’s Confidential Information solely for archival purposes. To the extent that it is impracticable to return or destroy any Confidential Information, and with respect to any copies retained for archival purposes, receiving party shall continue to maintain the Confidential Information in accordance with this License Agreement. The confidentiality obligations set forth in this License Agreement shall survive the termination of this License Agreement and remain in full force and effect until such Confidential Information, through no act or omission of receiving party, ceases to be Confidential Information as defined hereunder.

7. WARRANTY

Software Warranty. Licensor warrants that for a period (specified in Quote, usually for 1 year) from the applicable Term Start Date (the “Warranty Period”), the Applications will materially conform to the functional specifications set forth in the Documentation (the “Specifications”). Should the Applications fail to materially conform to such Specifications during the Warranty Period, Customer shall promptly notify Licensor in writing on or before the last day of the Warranty Period and identify with specificity the nonconformance. To the extent that the nonconformance exists in a current, unaltered release of the Applications, Licensor shall, at its option (and cost and expense), either (i) correct the nonconformance or, (ii) replace the nonconforming Applications or, (iii) if neither of the foregoing options is commercially reasonable, terminate the license for the Software. Upon such termination of the license and Customer’s return of the Software pursuant to Section 10 below, Licensor will refund to Customer, as Customer’s sole remedy for such Applications, all license fees paid by Customer for such Applications.

Authorized Representative. Customer and Licensor warrant that each has the right to enter into this License Agreement and that the License Agreement and all Quotes executed hereunder shall be executed by an authorized representative of each entity.

Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Any and all SOFTWARE, documentation, CONFIDENTIAL INFORMATION and any other technology or materials provided by LICENSOR to the CUSTOMER are provided “as is” and without warranty of any kind. EXCEPT AS OTHERWISE STATED IN THIS LICENSE AGREEMENT, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

No Modifications. Notwithstanding anything to the contrary in this Section 7, any and all warranties under this License Agreement are void if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Licensor.

8. Limitation of Liability.

In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, Licensor shall have no liability for any claim of infringement based on: (i) Software which has been modified by parties other than Licensor; (ii) Customer’s use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Software with non-Licensor software or hardware, where use with such other software or hardware gave rise to the infringement claim.

9. Severability and Disclaimer of damages.

Severability. If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of 9Folders to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.

Disclaimer of damages. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL 9FOLDERS, INC OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT (A) BE LIABLE WITH RESPECT TO USE OF THE APP; AND/OR (B) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APP, OR DEVICE FAILURE OR MALFUNCTION. YOUR SOLE REMEDY IS TO CEASE USE OF THE APP. 9FOLDERS, INC, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.

10. TERM AND TERMINATION

Term. The term of this License Agreement shall continue for the license term set forth in the Quote (the “Term”) unless terminated as provided herein.

Termination by Licensor. This License Agreement and any license under an applicable Quote hereunder may be terminated by Licensor: (i) if Customer fails to make any payments due hereunder within fifteen (15) days after Licensor delivers notice of default to Customer; (ii) by giving prior written notice to Customer if Customer fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Customer’s receipt of Licensor’s notice to cure such non-performance of material obligation; or (iii) if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

Termination by Customer. This License Agreement may be terminated by Customer by giving prior written notice to Licensor if Licensor fails to perform any material obligation required of it hereunder. Such notice shall describe, in detail, Licensor’s alleged non-performance shall describe, in detail, the steps Customer believes Licensor must take to remedy such alleged non-performance.

Termination of Licenses. Upon termination of this License Agreement or any license hereunder, Customer’s rights to the affected Software, Licensor Confidential Information, and other Licensor materials (collectively “Materials”) shall cease. Customer shall immediately stop using such Materials and shall return such Materials to Licensor, or destroy all copies thereof. In addition, Customer shall provide Licensor with a written certification signed by an officer of Customer, that all copies of the Materials have been returned or destroyed and that no copies have been retained by Customer for any purpose whatsoever. Following termination, any use of the Materials by Customer shall be an infringement and/or misappropriation of Licensor’s proprietary rights in the Materials. Upon termination of this License Agreement by Customer, Licensor shall have no further obligation or liability hereunder and all fees due under the License Agreement shall become due and payable to Licensor immediately upon such termination.

Termination of Enterprise Licenses. Upon expiration of the Term set forth in the Quote or upon termination of this License Agreement or any license hereunder, Customer’s rights to the affected Software, Licensor Confidential Information, and other Licensor materials (collectively “Materials”) shall cease.

Other Remedies. Termination of this License Agreement or any license created hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this License Agreement including, but not limited to, any Quote.

11. CONTACT US

If you have any questions regarding our terms and condition, you can email us at sales@9folders.com.

Nine