CCProjex Enterprise Subscription Agreement####Please read the terms and conditions of this agreement carefully. This agreement is between you and Dydju Pty Ltd, trading as cloud coach (“Cloud Coach”). By signing the quote acceptance, clicking “I accept” or using the application (as defined below), you agree to be bound by the terms and conditions of this agreement. If you are purchasing a subscription on behalf of your company or organization, you represent and warrant that you have the authority to bind your company or organization to this agreement. If you do not agree to be bound by the terms and conditions of this agreement, do not click “I accept” or use the application.##In consideration of the mutual promises and covenants contained in this agreement and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the parties agree as follows:##1. Definitions##(a) “Application” means CCProjex Enterprise by Cloud Coach, the online project management software application as a service developed by Cloud Coach that operates within the force.com platform.##(b) “Authorized users” means persons affiliated with subscriber as employees, consultants, onsite contractors or temporary employees.##(c) "Force.com platform" means the web-based technology platform provided by salesforce.com that includes a user interface, operating system, customization and integration capabilities for Salesforce.com’s on-demand customer relationship management service.##(d) “Materials” means the material arising out of the provision of the services.##(e) “order form” means a form or invoice issued by Cloud Coach under this agreement setting forth the fees, period of access, number of authorized users for subscriber’s access to the application and services to be provided by Cloud Coach.##(f) “Services” means the services to be provided by Cloud Coach specified on the order form.##(g) “Subscriber” means the company or other business entity that purchases a subscription for the service pursuant to this agreement.##2. Fees##(a) Fees. As consideration for the rights granted and services provided by Cloud Coach pursuant to this agreement, subscriber shall pay Cloud Coach the fees set forth in the applicable order form. Payment shall be in the currency designated in the order form and in accordance with the terms set forth therein.##(b) Late payment. Any payment not received from subscriber when due shall incur interest at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever is less.##(c) Taxes. Any and all amounts payable hereunder by subscriber are exclusive of any goods and services tax, value added, sales, use, excise or other similar taxes (collectively, “taxes”). Subscriber is solely responsible for paying any applicable taxes. If Cloud Coach has the legal obligation to collect any taxes, subscriber shall reimburse Cloud Coach upon invoice by Cloud Coach.##3. License##(a) License grant. Subject to subscriber’s material compliance with the terms and conditions of this agreement, Cloud Coach grants subscriber a non-exclusive, non-transferable, non-sub licensable, limited license to use the application and the materials during the term of this agreement. The licence period commences on the date of signature of this agreement.##(b) Restrictions. Use of the application and the materials is limited to the total number of authorized users specified in the order forms issued by Cloud Coach and paid for by subscriber. Except as expressly permitted under this agreement, subscriber shall not itself or permit any other party to: (1) translate, download, reproduce, make error corrections, or otherwise modify or adapt the application or the materials or create derivative works based upon the application or materials; (2) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or structural framework of the application; (3) access the application or the materials for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the application; (4) sell, loan, rent or lease access to the application or the materials or use the application or materials as part of a service bureau or similar fee-for-service purpose; (5) provide access to the application or the materials to anyone other than authorized users; (6) use the application or the materials in any way that does not comply with applicable laws and regulations; (7) use the application or the materials in any way that could damage the reputation of Cloud Coach or the goodwill or other rights associated with the application or the materials; or (8) modify or remove any copyright or proprietary notices on the application or materials. ##(c) Technical requirements. Subscriber shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software required to access the application, including, but not limited to, computers, operating systems, web browsers and storage devices. Subscriber acknowledges and agrees that use of the application requires a valid subscription to the force.com platform, and subscriber is solely responsible for obtaining, configuring, maintaining and paying for access to the force.com platform.##(d) Usage statistics. Cloud Coach may collect and analyze usage statistics relating to use of the application for purposes of benchmarking, troubleshooting and improving the performance and functionality of the application. ##(e) New Versions. New versions of the ‘Application’ will be made available to the client, free of charge during the subscription period. However custom configurations made by the client however may make automated upgrade impossible and may require the engagement of professional services from Cloud Coach at the cost of the client to migrate to new versions##4. Services##(a) Subject to the subscriber’s material compliance with the terms and conditions of this agreement, Cloud Coach must provide the services to the subscriber.##(b) The subscriber must:##(i) Liaise and cooperate with, and provide all reasonable assistance to, Cloud Coach;##(ii) Provide access to premises and equipment;##(iii) Ensure the safety of Cloud Coach’s personnel; and##(iv) Comply with all relevant laws, including in relation to workplace safety and to the provision of the services.####5. Protection and compliance##(a) Protection. Subscriber shall make reasonable efforts to advise all authorized users of the restrictions on use of the application and the materials set forth in section 3(b). In the event that subscriber becomes aware of any unauthorized use of the application or the materials by way of subscriber’s network, servers or other facilities, subscriber shall promptly give notice to Cloud Coach of such unauthorized use and make all reasonable efforts to eliminate such unauthorized use. Subscriber shall establish appropriate security policies, procedures, access control methodologies and network protection techniques to safeguard access to the application and the materials and ensure compliance with the terms and conditions of this agreement. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.##(b) Compliance. Upon not less than five (5) business days written notice, Cloud Coach may, at its expense, inspect the equipment and facilities used by subscriber to access or provide access to the application and materials and subscriber’s records concerning access to and use of the application and materials, but only as reasonably necessary to verify compliance with the terms and conditions of this agreement. Such inspection shall be conducted no more frequently than once per twelve (12)-month period. If an inspection reveals that subscriber’s usage of the application or materials materially exceeded the scope of the license granted herein, subscriber shall reimburse Cloud Coach for the reasonable costs of the inspection and pay Cloud Coach the fees associated with such usage. Notwithstanding the foregoing, Cloud Coach shall be entitled to pursue any other legal and equitable remedies it may have on account of subscriber’s breach of this agreement.##6. Intellectual property rights## Subscriber acknowledges and agrees that Cloud Coach and its licensors own all right, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the application and the materials.##7. Term and termination##(a) Term. The term of access granted pursuant to each order form shall be for the period of time set forth in such order form. This agreement shall continue in full force and effect until all terms of access granted pursuant to all order forms expire or are terminated.##(b) Termination. Notwithstanding section 7(a), this agreement may be terminated as follows: ##(1) Material breach. Either party may terminate this agreement in the event of a material breach by the other party that remains uncured thirty (30) days after the non-breaching party gives the breaching party written notice of such breach;##(2) Insolvency. Either party may terminate this agreement in the event that the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business; or##(3) Suspension. In the event that subscriber fails to make any payment when due under this agreement, Cloud Coach may immediately suspend subscriber’s access to the application and suspend the services. If any such payment remains unpaid more than thirty (30) days after it becomes due, then Cloud Coach may immediately terminate this agreement. Subscriber shall not be entitled to any refund or credit for any period of suspension, and any suspension or termination by Cloud Coach pursuant to this section 7(b)(3) shall be without prejudice to any other rights or remedies available to Cloud Coach under this agreement or applicable law.##(c) Effect of termination. If this agreement is terminated or expires for any reason: (a) the licenses granted pursuant to clause 3(a) will immediately cease; (b) the subscriber must immediately cease use of the application and remove the application from its hardware , computers, operating systems and other storage devices; and (c) the subscriber must cease all use of the materials and, at the option of Cloud Coach, destroy or deliver up to Cloud Coach all the materials (including copies) in its possession or control. ##8. Representations and warranties## Cloud Coach and subscriber each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this agreement; (b) the execution and performance of this agreement has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this agreement will not conflict with any provision of law or the certificate of incorporation, by-laws or comparable organizational documents of the party or conflict with any condition of any contract to which it is a party; (d) no action by any governmental organization is necessary to make this agreement valid and binding upon the party; and (e) it possesses all licenses and other governmental approvals necessary to perform its obligations under this agreement.##9. Indemnification##(a) Cloud Coach indemnification. Cloud Coach agrees that subscriber shall have no liability and Cloud Coach shall indemnify, defend and hold subscriber harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) arising from any action or claim of a third party (collectively, “losses”) that subscriber’s use of the application or the materials in material conformity with the terms and conditions of this agreement infringes the copyright of such third party (“Cloud Coach indemnification”). In the event that the application or the materials become the subject of a claim of infringement or Cloud Coach reasonably determines that the application or the materials are likely to become the subject of such a claim, Cloud Coach may, at its option: (1) procure for subscriber a license as necessary for subscriber to exercise the rights granted by Cloud Coach under this agreement; (2) modify the application or the materials to avoid infringement or replace the application or the materials, provided that the modified or replacement application or materials retain materially the same functionality as the application or materials; or (3) terminate this agreement without further obligation to subscriber; provided, however, that subscriber shall be entitled to a pro rata refund of the fees paid for any unused term.##(b) Subscriber indemnification. Subscriber agrees that Cloud Coach shall have no liability and subscriber shall indemnify, defend and hold Cloud Coach harmless against any loss, except as to losses covered by Cloud Coach indemnification, arising from: (1) use of the application or materials by subscriber or its authorized users or through subscriber’s accounts or facilities; (2) negligence or willful misconduct of subscriber or any authorized user; or (3) breach of this agreement or the subscriber’s representations or warranties herein.##(c) Procedure. The indemnified party shall: (1) give the indemnifying party prompt written notice of any loss or threat of loss; (2) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defence or settlement of any loss or threat of loss; and (3) give the indemnifying party sole and complete control over the defence or settlement of any loss or threat of loss; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.##10. Confidential information## “Confidential information” as used herein means information identified in good faith by either party as “confidential” and/or “proprietary,” or information that, under the circumstances, ought reasonably be treated as confidential and/or proprietary. “confidential information” shall include, but not be limited to, the terms and conditions of this agreement, the source code and structural framework of the application, the materials, information relating to future releases of the application and pricing information and business plans provided by Cloud Coach. Neither party shall disclose to a third party confidential information of the other party. To maintain in confidence the confidential information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any confidential information that: (1) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such confidential information to the receiving party; (2) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (3) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such confidential information; (4) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (5) is required to be disclosed by law, provided that the receiving party takes reasonable and lawful actions to avoid and/or minimize such disclosure and promptly notifies the disclosing party so that the disclosing party may take lawful actions to avoid and/or minimize such disclosure. Each party agrees that it will use the confidential information provided by the other party only as necessary to discharge its obligations under this agreement and for no other purpose without the prior written consent of the disclosing party.##11. Disclaimer of warranties## The application is provided to subscriber “as is” and “with all faults.” Cloud Coach, to the maximum extent permitted by law, expressly disclaims all guarantees, warranties and representations (except as set forth in section 8), express or implied, in relation to the application, materials and the services including, without limitation: (a) consumer guarantees relating to, and implied warranties of, merchantability, fitness for a particular purpose and due care and skill; and (b) any consumer guarantee and any warranty with respect to the quality, accuracy, currency or completeness of the application, or that subscriber’s use of the application will be error-free, uninterrupted, free from other failures or will meet subscriber’s requirements.##12. Limitation of liability##(a) In no event shall either party be liable to the other party for any incidental, indirect, special, punitive or consequential damages, including, but not limited to, damages arising from any type or manner of commercial, business or financial loss (including loss of data) occasioned by or resulting from any use of the application, such as any malfunction, defect or failure of the application or its delivery via the internet, even if such party had actual or constructive knowledge of the possibility of such damages and regardless of whether such damages were foreseeable. The total liability of Cloud Coach for any claim under this agreement shall not exceed the aggregate fees paid by subscriber to Cloud Coach under this agreement during the twelve (12)-month period preceding the date on which such claim arose.##(b) Cloud Coach undertakes no responsibility for, and disclaims all liability arising from, any defects or failures in any communications lines, the internet or internet service provider, subscriber's computer hardware or software, the force.com platform or any other product or service used to access the application. Subscriber acknowledges and agrees that Cloud Coach is not responsible for the accuracy of any information or data contained in the application, and Cloud Coach shall not be liable for any losses or damages resulting from reliance on any such information or data under any circumstances.##13. General##(a) Use of name. Subscriber acknowledges and agrees that Cloud Coach may identify subscriber as a cloud coach customer in advertising and promotional materials.##(b) Notice. Notices given under this agreement shall be in writing and may be delivered by hand or sent by internationally-recognized courier service, e-mail or fax to the physical address, e-mail address or fax number for each party set forth in the most current order form. Any such notice shall be deemed successfully given: (1) if delivered personally, at the time of delivery; (2) in the case of an internationally-recognized courier service, the date of delivery confirmation; or (3) in the case of e-mail or fax, at the time of successful transmission. ##(c) Assignment. Subscriber may not assign this agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Cloud Coach. ##(d) Entire agreement. This agreement, including all order forms, annexes, exhibits and schedules, contains the final and entire agreement of the parties on the subject matter herein and supersedes all previous and contemporaneous oral or written negotiations or agreements on the subject matter herein.##(e) Amendment. This agreement may not be amended except in a writing executed by an authorized representative of each party.##(f) Severability. If any provision of this agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability. Such provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of this agreement. ##(g) Governing law. This agreement shall be governed by and construed in accordance with the laws of new south wales, Australia.##(h) Dispute resolution. Each party: (1) irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of new south wales, Australia and all courts that have jurisdiction to hear appeals from those courts; and (2) waives any right to object to proceedings being brought in those courts for any reason.##(i) Force majeure. Any prevention of or delay in either party’s performance hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond such party’s reasonable control shall excuse such party’s performance of its obligations hereunder for a period equal to the duration of any such prevention or delay.##(j) Non-waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.##(k) Survival. The provisions of this agreement that should by their nature survive termination of this agreement shall survive such termination, including, but not limited to, sections 2(b), 2(c), 3(b), 3(d), 5, 6, 7, 8, 9, 10, 11, 12 and 13.
