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:
Cloud Coach provides enterprise-level project management, project portfolio management, professional services automation and related software-as-a-service (SaaS) subscriptions for access within the SFDC Platform (as defined below). Access to each Cloud Coach offering is granted pursuant to the: (a) terms and conditions of this Agreement; (b) the business terms in an applicable Order Form (as defined below); (c) the salesforce.com (SFDC) Service Agreement; and (d) any valid and current Statement of Work (SOW), where applicable. In case of conflict between the foregoing, the SFDC Agreement shall control this Agreement and the Order Form, and the Order Form shall control this Agreement and any relevant SOW. Any conflict between a Subscriber Purchase Order and Cloud Coach Order Form/Agreement shall be resolved in favor of the Cloud Coach Order Form/Agreement.
(a) “Additional Services” means any additional services to be provided by Cloud Coach as specified in an Order Form.
(b) “AppExchange” means the online directory of on-demand applications that work with the SFDC Platform,” located at http://www.appexchange.com or at any successor websites.
(c) “Application” means any application owned by Cloud Coach that is available for Subscription whether or not bearing the Cloud Coach name as identified on the App Exchange or in an applicable Order Form.
(d) “Authorized User(s) or User(s)” means persons affiliated with Subscriber as employees, consultants, onsite contractors or temporary employees to whom Subscriber grants access to the Services, or whose user record is accessed through Subscriber’s use of the Services.
(e) “Clean Org” means a Salesforce Org that has the Cloud Coach-managed packages installed but no configuration of any kind (including but not limited to custom fields, workflow processes, external views, approval processes, process builder, apex code and triggers, visualforce).
(f) “Confidential Information” means any written, oral or electronic non-public business information, know-how, and trade secrets in any form, including information regarding product plans, roadmap, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party
(f) “Material,” with respect to a particular matter (e.g., a breach, amendment), shall mean that the matter is shown to affect adversely the ability of the other party to perform its obligations hereunder to such a degree that a reasonable person in the management of his or her own affairs would be more likely than not to decline to enter into this Agreement in view of the matter in question.
(g) “Materials” means any deliverables or other work product created by Cloud Coach as part of Additional Services.
(h) “Order Form” means an order form executed by the parties (following the expiration of a stated Trial Period, if applicable) concerning the Services, Additional Services or access to any Application identified in such Order Form. The Order Form will specify the applicable fees, Subscription Term, number of Authorized Users and Additional Services, if any, to be provided by Cloud Coach.
(i) “Personal Data” means any information given to Cloud Coach by Subscriber relating to an identified or identifiable natural person who can be directly or indirectly identified in particular by reference to an identifier.
(j) “Reseller” means a company authorized to procure, accept and deliver to Subscriber an Order Form for reselling Cloud Coach Services and accept payment from Subscriber pursuant to the Order Form.
(k) “Services” means the services to be provided by Cloud Coach pursuant to an Order Form or free Application via the AppExchange.
(l) “SFDC Platform” means the web-based technology platform provided by Salesforce that includes a user interface, operating system, customization and integration capabilities for Salesforce.com’s on-demand customer relationship management service.
(m) “Subscriber” means the individual, company, organization, business entity or group purchasing the Services, persons accessing an Application pursuant to a stated Trial Period, and persons legally accessing a free Application via download on the AppExchange.
(n) “Subscriber Data” means any and all information entered or inputted by Subscriber and its Authorized Users in the course of accessing and utilizing the Services.
(o) “Subscription” means Subscriber’s right to access the Services pursuant to an Order Form.
(p) “Subscription Term” means the period of time specified in an Order Form (or default time period for free Applications) during which Subscriber may access the Applications and Materials covered by the applicable Order Form. Unless otherwise indicated on the Order Form, the Term begins on the Date of Execution of the Order Form, and in the case of free Applications, the date of installation of the free Application.
(q) “Trial Period” means the specified period of time during which Subscriber and any Authorized User has rightful access to any Application prior to the execution of an Order Form.
3. Fees for Paid Applications
(a) Fees. As consideration for the rights granted and Services provided by Cloud Coach pursuant to an Order Form, Subscriber shall pay Cloud Coach the fees set forth in the applicable Order Form. Payment shall be in USD unless otherwise 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. Net payment terms are 30 days unless indicated otherwise on the Order Form. Subscriber’s failure to timely provide Cloud Coach with a PO, or any other supporting document required by Subscriber to release payment, does not relieve or change Subscriber’s duty to comply with the contracted net payment terms. Any payments not received within the payment terms may be sent to a collection agency to secure payment. Subscriber shall be responsible for all costs and fees associated in the collection of monies due and owing, including reasonable attorney fees.
(c) Reseller. If Subscriber has purchased the Services through a Reseller, payment is deemed received pursuant to this Section 3 as of the date it is received by Cloud Coach, not the Reseller. If timely payment is not received by Cloud Coach, the Subscriber is subject to the suspension and termination provisions in Section 6(b)(3) herein, regardless whether payment was made to the Reseller.
(d) Taxes. Any and all amounts payable hereunder are exclusive of any goods and services, 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 pay Cloud Coach same as indicated on the invoice by Cloud Coach.
4. Subscription Services
(a) Subscription. Subject to Subscriber’s compliance with the terms and conditions of this Agreement, Cloud Coach shall give Subscriber non-exclusive, non-transferable, access to any free Application and the Applications and Materials identified in an applicable Order Form during the Subscription Term specified in the Order Form (or default period for a free Application).
(1) Use of any Application and Materials is limited to the total number of Authorized Users specified in the applicable Order Form. Except as expressly permitted under this Agreement, Subscriber shall not itself or permit any other party to: (a) translate, download, reproduce, modify, adapt or create derivative works based upon any Application or Materials; (b) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework for any Application or Materials; (c) access any Application or Materials for purposes of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to any Application or Materials; (d) use any Application or Materials in any way that does not comply with applicable laws and regulations; (e) use any Application or Materials in any way that could damage the reputation of Cloud Coach or the goodwill or other rights associated with any Application or Materials; (f) modify or remove any copyright or other proprietary notices on the Application or Materials, or (g) use any part of Salesforce CRM functionality (Leads, Campaigns, Opportunities, Cases, etc.) without a subscription from Salesforce for use of that functionality. The External Resource object is for managing of physical equipment only.
(2) Cloud Coach Enterprise and Cloud Coach Ultimate subscriptions include Salesforce platform access to Cloud Coach objects only. Subscriber is solely responsible to acquire the proper Salesforce platform subscription required to legally access Cloud Coach Professional and/or Cloud Coach Milestones and Cloud Coach is not responsible for Subscriber’s failure to do so.
(3) Subscriber is prohibited (itself or through a third party), from configuring or customizing Cloud Coach Applications to build functionality that is competitive with another Cloud Coach Application.
(c) Usage Statistics. Cloud Coach may collect and analyze anonymous usage statistics (e.g., number of records and page views), but not the contents of any Subscriber Data, relating to use of Applications for purposes of benchmarking, troubleshooting or improving the performance and functionality of Applications.
(d) Browsers Supported. Cloud Coach supports only the most recent public release and the immediately preceding version of current browsers supported by Salesforce Lightning.
(e) New Version Supported. Cloud Coach supports only the most current version of its Applications. New versions of Applications are released by Cloud Coach via automatic push upgrades to its Subscribers at large free of charge; provided, however, that custom configurations may make automated upgrade impossible and may require the engagement of Additional Services from Cloud Coach at Subscriber’s expense to migrate to new versions. With Salesforce moving its business toward Salesforce Lightning, Cloud Coach cannot guarantee continued support of Classic functionality from Salesforce and is therefore unable to offer support for Cloud Coach in the Salesforce Classic interface after December 31, 2019. From December 2020 Cloud Coach Fundamentals and Cloud Coach Professional solutions are entering end of life. Feature updates will cease as of December 2020, bug fix support will continue throughout 2021.
(f) Other Support. Cloud Coach offers a basic success support plan, which is made available free of charge to Subscriber and includes bug fixes replicable in a Clean Org only (with no custom configuration). Support related to anything not replicable in a Clean Org requires an additional fee. To the extent access to Subscriber’s sandbox is necessary to administer basic support, Subscriber agrees to grant such access to any sandboxes where no Subscriber Data resides.
(g) Trademark License. Cloud Coach may use the names, logos and trademarks of Subscriber to publicize the existence of the business relationship established by this Agreement.
5. Intellectual Property Rights, Confidentiality and Privacy
(a) Subscriber acknowledges and agrees that Cloud Coach and its licensors own all rights, 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 Materials. Cloud Coach acknowledges and agrees that Subscriber and its licensors own all rights, title and interest (including, but not limited to, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the contents of Subscriber Data entered by Subscriber and its Authorized Users in Applications.
(b) To the extent either party has access to the Confidential Information of any other party, each party agrees to treat such information with at least the same degree of care it would use to protect its own Confidential Information. Any disclosure (mandatory, inadvertent or otherwise) of Confidential Information must be immediately disclosed to the party owning such information.Subscriber agrees that the pricing and other terms given to Subscriber are considered Confidential Information under this Agreement and shall not be disclosed to any third party. Notwithstanding, Subscriber agrees that the disclosure to Salesforce of the existence of this Agreement is not considered a disclosure of Subscriber’s Confidential Information to a third party.
(d) Subscriber Data that is subject to the terms of the General Data Protection Regulation (“GDPR”) (eff. 25 May 2018) is governed by the Salesforce Data Processing Addendum, which Subscriber can download and execute here.
6. Term and Termination
(a) Term. The term of this Agreement shall continue in effect until the expiration or termination of all existing Subscription Terms as defined in Order Forms, Renewals, Additional Services, and as otherwise agreed in writing and signed by the parties, or as earlier terminated pursuant to Section 6(b). The default Term for access to a free Application is ongoing until Subscriber 1) successfully uninstalls the Application from their Org(s) or 2) either party terminates earlier pursuant to Section 6(b).
(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows:
7. 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, bylaws 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 governmental approvals and licenses necessary to perform its obligations under this Agreement.
8. Indemnification/Exclusive IP Remedy
(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 arising from any third-party action or claim (collectively, “Losses”) attributable to: (1) infringement of such third party’s copyright based upon Subscriber’s use of any Application or Materials in conformity with the terms and conditions of this Agreement in all material respects. In the event that any Application or Materials becomes the subject of a claim of infringement or Cloud Coach reasonably determines that any Application or Materials is likely to become the subject of such a claim, then, as Subscriber’s exclusive remedy under this Agreement, Cloud Coach may, at its option: (i) procure for Subscriber a subscription as necessary for Subscriber to exercise the rights granted by Cloud Coach under this Agreement; (ii) modify or replace the Application or Materials to avoid infringement, provided that the Application and Materials as modified or replaced retain materially the same functionality; or (iii) terminate the applicable Order Form for such Application or Materials without further obligation to Subscriber; provided, however, that Subscriber shall be entitled to a pro rata refund of the fees paid for any unused Subscription 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 Losses arising from any: (1) infringement of a third party’s copyright attributable to any materials provided by Subscriber or any Authorized User or (2) gross negligence or willful misconduct of Subscriber or any Authorized User.
(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 defense or settlement of any Loss or threat of Loss; and (3) give the indemnifying party sole and complete control over the defense 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.
9. Disclaimer of Warranties
THE APPLICATION AND MATERIALS ARE PROVIDED “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 7), EXPRESS OR IMPLIED, 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 MATERIALS, OR THAT SUBSCRIBER’S USE OF THE APPLICATION OR MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET SUBSCRIBER’S REQUIREMENTS.
10. Limitation of Damages
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 OR INABILITY TO USE THE APPLICATION OR MATERIALS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
Cloud Coach undertakes no responsibility for, and disclaims all liability arising from, any defects or failures in any communication lines, the internet or internet service provider, Subscriber’s computer hardware or software, the SFDC 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 Subscriber Data contained in the application, and Cloud Coach shall not be liable for any losses or damages resulting from reliance on any such Subscriber Data under any circumstances. Cloud Coach shall not be liable for any losses or damages resulting from Subscriber’s grant of access to Cloud Coach to its production org via Subscriber, its Authorized Users, or any other mechanism. Cloud Coach has no access to or obligation to retain any Subscriber Data at any time. Retention of Subscriber Data is governed solely by the terms of the SFDC Service Agreement between Subscriber and SFDC. Cloud Coach shall not be liable for any losses or damages resulting from Subscriber’s denial of access to the Application(s) or Services, which access is denied pursuant to Subscriber’s direct subscription agreement(s) with SFDC. Cloud Coach reserves the right to make changes to product tier functionality at any time with or without notice to Subscriber and disclaims all liability to Subscriber arising therefrom.
11. Limitation of Liability.
EXCEPT FOR THE PARTIES’ DUTY TO INDEMNIFY THE OTHER AS DESCRIBED ABOVE AND IN ADDITION TO SUBSCRIBER’S DUTY TO PAY ALL FEES DUE, THE TOTAL LIABILITY OF EITHER PARTY 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.
(a) 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.
(b) Assignment. Subscriber may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Cloud Coach; provided, however, that no consent shall be required with respect to an assignment as part of any transfer by merger, acquisition, stock transfer or other consolidation of a Subscriber with another entity, or sale of all or substantially all of Subscriber’s assets. The terms of this Agreement shall be binding upon Subscriber with respect to an assignment by Cloud Coach made pursuant to a transfer, merger, acquisition, stock transfer or other consolidation of Cloud Coach with another entity, or sale of all or substantially all of Cloud Coach’s assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement, including all Order Forms, valid and current SOW, annexes, exhibits and schedules, and the attached SFDC Service Agreement (Enterprise and Ultimate Subscribers Only), contains the final and entire agreement of the parties on the subject matter herein and supersedes all previous and contemporaneous oral or written negotiations, email correspondence, or agreements regarding such subject matter, including any oral or written terms contained in Cloud Coach proposals and/or demos during the sales process and Requests for Proposals submitted pursuant to Subscriber’s internal buying processes.
(d) Amendment. This Agreement may be amended only by Cloud Coach. Cloud Coach shall notify Subscriber of any Material amendments in writing.
(e) 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, without in any way affecting the remaining parts of this Agreement.
(f) Non-Solicitation of Employees. Subscriber shall not, for a period of twenty-four (24) months following the termination of this Agreement, without the prior written approval of Cloud Coach, hire or enter into a contract with any employee of Cloud Coach to provide services to Subscriber or, directly or indirectly, induce or attempt to induce or otherwise counsel, discuss, advise or encourage any employee of Cloud Coach to leave or otherwise terminate such person’s relationship with Cloud Coach.
(g) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Colorado, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(h) Dispute Resolution. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in the United States District Court for the District of Colorado in Denver or, if federal jurisdiction is not available, in any state court of competent jurisdiction in Denver, Colorado. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(i) 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.
(j) 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, 3(b), 3(d), 4(b), 4(c), 5, 7, 8, 9, 10, 11 and 12.
(k) SFDC Service Agreement. Subscriber’s execution of this Agreement constitutes acceptance of the SFDC Service Agreement located at https://cloudcoach.com/reseller-terms-sf/ If Subscriber is installing the Application into an existing SFDC org, then Subscriber’s current MSSA terms with Salesforce take precedence over the SFDC Service Agreement part of this Agreement.