General Terms & Conditions For CoachPro Services

1. Definitions Capitalised terms used in this document are defined in the Glossary.

2. Usage Rights & Restrictions

2.1. Grant of Rights

CoachPro grants to Customer a non-exclusive and non-transferable right to use the CoachPro Service (including its implementation and configuration), Materials and Documentation solely for Customer’s and its Affiliates’ internal business operations. Customer may use the CoachPro Service world-wide, except Customer shall not use the CoachPro Service from countries where such use is prohibited by Export Laws. Permitted uses and restrictions of the CoachPro Service also apply to Materials and Documentation.

2.2. Authorised Users

Customer may permit Authorised Users to use the CoachPro Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form. Access credentials for the CoachPro Service may not be used by more than one individual, but may be transferred from one individual to another if the original user is no longer permitted to use the CoachPro Service. Customer is responsible for breaches of the Agreement caused by Authorised Users.

2.3. Acceptable Use Policy

With respect to the CoachPro Service, Customer will not:

1. except to the extent such rights cannot be validly waived by law disassemble,

decompile, reverse-engineer, copy, translate or make derivative works,

1. b) transmit any content or data that is unlawful or infringes any intellectual property rights, or
2. c) circumvent or endanger its operation or security.

2.4. Verification of Use

Customer will monitor its own use of the CoachPro Service and report any use in excess of the Usage Metrics and volume. CoachPro may monitor use to verify compliance with Usage Metrics, volume and the Agreement.

2.5. Suspension of CoachPro Service

CoachPro may suspend or limit use of the CoachPro Service if continued use may result in material harm to the CoachPro Service or its users.  CoachPro will promptly notify Customer of the suspension or limitation. CoachPro will limit a suspension or limitation in time and scope as reasonably possible under the circumstances.

2.6. Third Party Web Services

The CoachPro Service may include integrations with web services made available by third parties (other than CoachPro or its Affiliates) that are accessed through the CoachPro Service and subject to terms and conditions with those third parties. These third-party web services are not part of the CoachPro Service and the Agreement does not apply to them.

2.7.Mobile Access to CoachPro Service

Authorised Users may access CoachPro Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application  and not by the terms of the Agreement.

 

3. CoachPro Responsibilities

 

3.1. Provisioning

CoachPro provides access to the CoachPro Service as described in the Agreement.

3.2. Support

CoachPro provides support for the CoachPro Service as referenced in the Order Form.

3.3. Security

CoachPro will implement and maintain appropriate technical and organisational measures to protect the personal data processed by CoachPro as part of the CoachPro Service as described in the Data Processing Agreement for CoachPro Services incorporated into the Order Form in compliance with applicable data protection law.

3.4. Modifications

1. a) The CoachPro Service and CoachPro Policies may be modified by CoachPro. CoachPro will inform Customer of modifications by email, the CoachPro Platform, update notifications, Documentation or the CoachPro Email System. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the CoachPro Service, which Customer may use subject to the then-current Supplement and Documentation.
2. b) If Customer establishes that a modification is not solely an enhancement and materially reduces the CoachPro Service, Customer may terminate its subscriptions to the affected CoachPro Service by providing written notice to CoachPro within thirty days after receipt of CoachPro’s informational notice.

3.5 Analyses

CoachPro or CoachPro Affiliates may create analyses utilising, in part, Customer Data and

information derived from Customer’s use of the CoachPro Service and Consulting Services, as set forth below (“Analyses”). Analyses will anonymise and aggregate information and will be treated as CoachPro Materials. Unless otherwise agreed, personal data contained in Customer Data is only used to provide the CoachPro Service and Consulting Services.

Analyses may be used for the following purposes:

1. a) product improvement (in particular, product features and functionality, workflows and user interfaces) and development of new CoachPro products and services,
2. b) improving resource allocation and support,
3. c) internal demand planning,
4. d) training and developing machine learning algorithms,
5. e) improving product performance,
6. f) verification of security and data integrity
7. g) identification of industry trends and developments, creation of indices and anonymous benchmarking.

 

4. Customer and Personal Data

 

4.1. Customer Data

Customer is responsible for the Customer Data and entering it into the CoachPro Service. Customer grants to CoachPro (including CoachPro, The Online Coach, its Affiliates and subcontractors) a non-exclusive right to process Customer Data solely to provide and support the CoachPro Service.

4.2. Personal Data

Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.

4.3. Security

Customer will maintain reasonable security standards for its Authorised Users’ use of the CoachPro Service. Customer will not conduct or authorise penetration tests of the CoachPro Service without advance approval from CoachPro.

4.4. Access to Customer Data

1. a) During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case CoachPro and Customer will find a reasonable method to allow Customer access to Customer Data.
2. b) Before the Subscription Term expires, Customer may use CoachPro’s self-service export tools (as available) to perform a final export of Customer Data from the CoachPro Service.
3. c) At the end of the Agreement, Coachpro will delete the Customer Data remaining on servers hosting the CoachPro Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.
4. d) In the event of third party legal proceedings relating to the Customer Data, CoachPro will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

 

5.Fees and Taxes

 

5.1. Fees and Payment

Customer will pay fees as stated in the Order Form. After prior written notice, CoachPro may suspend Customer’s use of the CoachPro Service until payment is made. Customer cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term.  All Order Forms are non-cancellable and fees non-refundable.

5.2. Taxes

Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account.  Customer is responsible for all taxes, other than CoachPro’s income and payroll taxes.  Customer must provide to CoachPro any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If CoachPro is required to pay taxes (other than its income and payroll taxes), Customer will reimburse CoachPro for those amounts and indemnify CoachPro for any taxes and related costs paid or payable by CoachPro attributable to those taxes.

 

6.Term and Termination

6.1. Term

The Subscription Term is as stated in the Order Form.

6.2. Termination

A party may terminate the Agreement:

1. upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty-day period (“de plein droit”)
2. as permitted under Sections  4(b),  7.3(b),  7.4(c),  8.1(c),  or  12.4 (with termination  effective thirty days after receipt of notice in each of these cases)
3. subject to applicable law, immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6.

6.3. Refund and Payments

For termination by Customer or termination under Sections 8.1(c) or 12.4, Customer will be entitled to:

1. a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination (unless such refund is prohibited by Export Laws), and
2. b) a release from the obligation to pay fees due for periods after the effective date of

termination.

6.4. Effect of Expiration or Termination

Upon the effective date of expiration or termination of the Agreement:

1. Customer’s right to use the CoachPro Service and all CoachPro Confidential Information will end,
2. Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and General Terms and Conditions for CoachPro Services (Direct)
3. Termination or expiration of the Agreement does not affect other agreements between the parties.

6.5. Survival

Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.

 

7. Warranties

 

7.1.Compliance with Law

Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with:

1. in the case of CoachPro, the operation of CoachPro’s business as it relates to the CoachPro Service, and
2. in the case of Customer, the Customer Data and Customer’s use of the CoachPro Service.

7.2. Good Industry Practices

CoachPro warrants that it will provide the CoachPro Service:

1. a) in substantial conformance with the Documentation; and
2. b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the CoachPro Service.

7.3. Remedy

Customer’s sole and exclusive remedies and CoachPro’s entire liability for breach of the warranty under Section 7.2 will be:

1. a) the re-performance of the deficient CoachPro Service, and
2. b) if CoachPro fails to re-perform, Customer may terminate its subscription for the affected CoachPro Service. Any termination must occur within three months of CoachPro’s failure to re-perform.

7.4.System Availability

1. CoachPro warrants to maintain an average monthly system availability for the production system of the CoachPro Service as defined in the applicable service level agreement or Supplement (“SLA”).
2. Customer’s sole and exclusive remedy for CoachPro’s breach of the SLA is the issuance of a credit in the amount described in the SLA. Customer will follow CoachPro’s posted credit claim procedure. When the validity of the service credit is confirmed by CoachPro in writing (email permitted), Customer may apply the credit to a future invoice for the CoachPro Service or request a refund for the amount of the credit if no future invoice is due.
3. In the event CoachPro fails to meet the SLA (i) for four consecutive months, or (ii) for five or more months during any twelve months period, or (iii) at a system availability level of at least 95% for one calendar month, Customer may terminate its subscriptions for the affected CoachPro Service by providing CoachPro with written notice within thirty days after the failure.

7.5. Warranty Exclusions

The warranties in Sections 7.2 and 7.4 will not apply if:

1. a) the CoachPro Service is not used in accordance with the Agreement or Documentation,
2. b) any non-conformity is caused by Customer, or by any product or service not provided by CoachPro
3. c) the CoachPro Service was provided for no fee.

7.6.Disclaimer

Except as expressly provided in the Agreement, neither CoachPro nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of CoachPro or product roadmaps in obtaining subscriptions for any CoachPro Service.

 

8.Third Party Claims

 

8.1.Claims Brought Against Customer

1. a) CoachPro will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the CoachPro Service infringes or misappropriates a patent claim, copyright, droit d’auteur or trade secret right. CoachPro will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement CoachPro enters into) with respect to these claims.
2. b) CoachPro’s obligations under Section 8.1 will not apply if the claim results from

(i) Customer’s breach of Section 2,

(ii) use of the CoachPro Service in conjunction with any product or service not provided by CoachPro, or

(iii) use of the CoachPro Service provided for no fee.

1. c) In the event a claim is made or likely to be made, CoachPro may

(i) procure for Customer the right to continue using the CoachPro Service under the terms of the Agreement, or

(ii) replace or modify the CoachPro Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, CoachPro or Customer may terminate Customer’s subscription to the affected CoachPro Service upon written notice to the other.

8.2.Claims Brought Against CoachPro

Customer will defend CoachPro against claims brought against CoachPro, The Online Coach, its Affiliates and subcontractors by any third party related to Customer Data. Customer will indemnify CoachPro against all damages finally awarded against CoachPro, The Online Coach,  its  Affiliates  and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.

8.3. Third Party Claim Procedure

1. a) The party against whom a third party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defence and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defence.
2. b) The party that is obligated to defend a claim will have the right to fully control the defence.
3. c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.

8.4. Exclusive Remedy

The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third-party intellectual property rights.

 

9.Limitation of Liability

 

9.1. Unlimited Liability

Neither party will exclude or limit its liability for damages resulting from:

8. the parties’ obligations under Section 8.1(a) and 8.2,
9. unauthorized use or disclosure of Confidential Information,
10. either party’s breach of its data protection and security obligations that result in an

unauthorized use or disclosure of personal data,

1. gross negligence or wilful misconduct, or
2. any failure by Customer to pay any fees due under the Agreement.

9.2. Liability Cap

Subject to Sections 9.1 and 9.3, the maximum aggregate liability of either party (or its respective Affiliates or CoachPro’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the annual subscription fees paid for the applicable CoachPro Service directly causing the damage for that twelve month period. Any “twelve-month period” commences on the Subscription Term start date or any of its yearly anniversaries.

9.3.Exclusion of Damages

Subject to Section 9.1:

a)neither party (nor its respective Affiliates or CoachPro’s subcontractors) will be liable to the other party for any consequential, or indirect damages, loss of goodwill or business profits, work  stoppage or punitive damages, and

1. b) CoachPro will not be liable for any damages caused by any CoachPro Service provided for no fee.

9.4. Risk Allocation

The Agreement allocates the risks between CoachPro and Customer. The fees for the CoachPro Service and Consulting Services reflect this allocation of risk and limitations of liability.

 

10. Intellectual Property Rights

10.1. CoachPro Ownership

CoachPro, The Online Coach, their Affiliates or licensors own all intellectual property rights in and related to the CoachPro Service, CoachPro Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to CoachPro, the Online Coach, and its licensors.

10.2. Customer Ownership

Customer retains all rights in and related to the Customer Data. CoachPro may use Customer-provided trademarks solely to provide and support the CoachPro Service.

10.3. Non-Assertion of Rights

Customer covenants, on behalf of itself and its successors and assigns, not to assert against CoachPro, The Online Coach, their Affiliates or licensors, any rights, or any claims of any rights,  in any CoachPro Service, CoachPro Materials, Documentation, or Consulting Services.

11.Confidentiality

11.1. Use of Confidential Information

11. a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorised Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. Customer will not disclose the Agreement or the pricing to any third party.
12. b) Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.
13. c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.

11.2. Exceptions

The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

1. is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,
2. is generally available to the public without breach of the Agreement by the receiving party,
3. at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or the disclosing party agrees in writing is free of confidentiality restrictions.

11.3. Publicity

Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that CoachPro may use Customer’s name in customer listings or quarterly calls with its investors or as part of CoachPro’s marketing efforts (including reference calls and stories, press testimonials, site visits). Customer agrees that CoachPro may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with CoachPro.

12.Miscellaneous

12.1. Severability

If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.

12.2. No Waiver

A waiver of any breach of the Agreement is not deemed a waiver of any other breach.

12.3. Electronic Signature

Signatures in any electronic form (including email or dedicated signature solutions) are deemed original signatures.

12.4. Trade Compliance

1. a) CoachPro and Customer shall comply with Export Laws in the performance of this Agreement. CoachPro Confidential Information is subject to Export Laws. Customer, its Affiliates, and Authorised Users shall not directly or indirectly export, re-export, release, or transfer Confidential Information in violation of Export Laws. Customer is solely responsible for compliance with Export Laws related to Customer Data, including obtaining any required export authorizations for Customer Data. Customer shall not use the CoachPro Service from Crimea/Sevastopol, Cuba, Iran, the People’s Republic of Korea (North Korea) or Syria.
2. b) Upon CoachPro’s request, Customer shall provide information and documents to support obtaining an export authorisation. Upon written notice to Customer CoachPro may immediately terminate Customer’s subscription to the affected CoachPro Service if

(i) the competent authority does not grant such export authorisation within eighteen months or

(ii) Export Laws prohibit CoachPro from providing the CoachPro Service to Customer.

12.5. Notices

All notices will be in writing and given when delivered to the address set forth in an Order Form. Notices by CoachPro relating to the operation or support of the CoachPro Service and those under Sections 3.4 and 5.1 may be in the form of an electronic notice to Customer’s authorised representative or administrator identified in the Order Form.

12.6. Assignment

Without CoachPro’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. CoachPro may assign the Agreement to The Online Coach, or any of its Affiliates.

12.7. Subcontracting

CoachPro may subcontract parts of the CoachPro Service or Consulting Services to third parties. CoachPro is responsible for breaches of the Agreement caused by its subcontractors.

12.8. Relationship of the Parties

The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.

12.9. Force Majeure

Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

12.10. Governing Law

The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of The United Kingdom, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Commercial Courts of The United Kingdom. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

12.11.Entire Agreement

The Agreement constitutes the complete and exclusive statement of the agreement between CoachPro and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if CoachPro accepts or does not otherwise reject the purchase order.

[1]Glossary

“Agreement”

means an Order Form and documents incorporated into an Order Form.

“Authorised  User”

means any individual to whom Customer grants access authorisation to use the CoachPro

Service that is an employee, agent, contractor or representative of

1. a) Customer,
2. b) Customer’s Affiliates, and/or
3. c) Customer’s and Customer’s Affiliates’ Business Partners.

“Business Partner”

means a legal entity that requires use of a CoachPro Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.

“CoachPro Service”

means any distinct, subscription-based, hosted, supported and operated on-demand solution

provided by CoachPro under an Order Form.

“CoachPro Materials”

mean any materials provided or developed by CoachPro (independently or with Customer’s

co-operation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. CoachPro Materials do not include the Customer Data, Customer Confidential Information or the CoachPro Service.

“Confidential Information”

means

1. with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and
2. with respect to CoachPro: (i) the CoachPro Service, Documentation, CoachPro Materials and analyses under Section 3.5, and (ii) information regarding CoachPro research and development, product offerings, pricing and availability.
3. Confidential Information of either Coachpro or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.

“Consulting Services”

means professional services, such as implementation, configuration, custom development and training, performed by CoachPro’s employees or subcontractors as described in any Order Form

and which are governed by the Supplement for Consulting Services or similar agreement.

“Customer Data”

means any content, materials, data and information that Authorised Users enter into the

production system of a CoachPro Service or that Customer derives from its use of and stores in the CoachPro Service (e.g.  Customer-specific reports). Customer Data and its derivatives will not include CoachPro’s Confidential Information.

“Documentation”

means CoachPro’s then-current technical and functional documentation as well as any roles and

responsibilities descriptions, if applicable, for the CoachPro Service which is made available to Customer with the CoachPro Service.

“Export Laws”

means all applicable import, export control and sanctions laws, including without limitation, the

laws of the United States, the EU and the United Kingdom.

“Order Form”

means the ordering document for a CoachPro Service that references the GTC.

“The Online Coach”

means The Online Coach Limited, the parent company of CoachPro.

“CoachPro Policies”

means the operational guidelines and policies applied by CoachPro to provide and support the

CoachPro Service as incorporated in an Order Form.

“Subscription Term”

means the term of a CoachPro Service subscription identified in the applicable Order Form,

including all renewals.

“Supplement”

means the supplemental terms and conditions that apply to the CoachPro Service and that are incorporated in an Order Form.

“Usage Metric”

means the standard of measurement for determining the permitted use and calculating the

fees due for a CoachPro Service as set forth in an Order Form.