CoachEm Beta Terms of Use

These CoachEm Beta Terms of Use (including any exhibits, schedules or addenda attached hereto) are incorporated into the Order Form, attached hereto (collectively the “Beta Terms”).  Capitalized terms used but not defined herein have the meanings set forth in the Order Form.

BACKGROUND

CoachEm has developed a software-as-a-service revenue acceleration platform (the “CoachEm Platform”).  The CoachEm Platform uses proprietary technology to analyze data from certain supported collaboration, CRM, and other systems, which may include but not be limited to Salesforce, Gong, and HubSpot, used by Customer (“Customer Systems”), and to provide Customer metrics, insights, and tracking mechanisms to Customer sales managers and others, through a web-based dashboard (the “Sales Manager Console”). CoachEm will provide the implementation and training services, if any, with respect to the Beta Offering as set forth in an Order Form (collectively, the “Services”). 

1. ACCESS TO AND USE OF THE BETA OFFERING.

1. License Grant.  Subject to Customer’s compliance with the terms of these Beta Terms, CoachEm grants to Customer a worldwide, non­exclusive, non-sub-licensable, and non-transferable limited license for Customer End Users to access and use the beta version of the CoachEm Platform and/or the Sales Manager Console, and related documentation, including any generally available updates thereto (the “Beta Offering”) and any CoachEm Materials, as defined in Section 5(a), during the Term identified in the Order Form, for the purposes of Manager Console Users coaching Rep Users and performing internal evaluation of the Beta Offering.

• End Users.  For the purposes of these Beta Terms, “End User” means an individual (i) who has been assigned unique user credentials to access and use the Beta Offering: and (ii) who manages a sales team for Customer and is authorized by Customer to access and use the Sales Manager Console (each a “Manager Console User”) or is a Customer sales representative and is authorized to access and use the CoachEm Platform (each a “Rep User”).  The number of End Users may not exceed the numbers set forth on the Order Form, and such credentials may not be shared or reassigned without the prior written approval of CoachEm. Customer is responsible for End Users’ compliance with these Beta Terms. 
  • Fees.  In consideration of early access to and use of the Beta Offering, as set forth in these Beta Terms, Customer shall pay the discounted CoachEm Platform fees set forth in the Order Form. Unless otherwise provided in the Order Form, all fees are payable within thirty (30) days of an invoice from CoachEm.  Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder; and to the extent CoachEm is required to pay any such sales, use, excise, or other taxes or other duties or charges, CoachEm will itemize such taxes or charges as a separate line item on the applicable invoice. Notwithstanding the previous sentence, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, CoachEm’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Except for invoiced payments that the Customer has disputed within ten (10) days of receipt of an invoice, all overdue payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse CoachEm for all reasonable costs incurred in collecting any overdue payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Beta Terms or at law (which CoachEm does not waive by the exercise of any rights hereunder), CoachEm shall be entitled to suspend access to the CoachEm Platform, or the provision of any Services, if the Customer fails to pay any undisputed amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Fees are due regardless of Customer’s utilization of the Beta Offering once the Term has commenced in accordance with Section 1(d).
    
    
  • Implementation Timeline and Revenue Recognition. Customer acknowledges that access to the Beta Offering will be made available within thirty (30) days of the Effective Date, subject to Customer’s timely completion of prerequisite activities including but not limited to: providing system access credentials, completing data integration requirements, and designating trained End Users. If Customer has not completed such activities within sixty (60) days of the Effective Date despite CoachEm’s good faith efforts to assist, or if Customer delays implementation for any reason beyond such sixty (60) day period, then CoachEm may commence the Term and begin invoicing, and the Beta Offering will be deemed available for Customer’s use.

• CUSTOMER DATA AND CUSTOMER SYSTEMS.   

1. Ownership; Applicable Laws.  As between Customer and CoachEm, Customer owns the data, or other information or materials, input or made available by Customer or an End User (including from Customer Systems) to CoachEm (collectively, “Customer Data”).  Customer will be solely responsible for the accuracy, quality, and completeness of Customer Data and for providing or making such Data available to CoachEm.

• Rights in Customer Data.  Customer represents and warrants throughout the Term: (i) that it owns or otherwise controls any Customer Data that it provides or makes available to CoachEm and that it is explicitly authorized to provide the Customer Data to CoachEm for the purposes described in the Agreement; and (ii) that it will comply with all Applicable Laws, as defined in Section 3(a)(vii), and that it has obtained, or will obtain prior to disclosure of Customer Data to CoachEm, any and all necessary and appropriate authorizations, consents, permissions, and rights consistent with Applicable Laws to provide or make available the Customer Data to CoachEm for use by CoachEm to provide the Beta Offering, including, as applicable, from individuals whose information is included in the Customer Data. CoachEm will have the right to collect, extract, compile, synthesize, and analyze data and information resulting from or relating to Customer’s use of the Beta Offering (“Usage Data”), provided, however, that Usage Data will not (a) allow for the identification of Customer (except as necessary to provide the Services to Customer and (b) will not include any Personal Data (as such term is defined in the DPA attached hereto) or allow for the identification of any individual, natural person. 

• Rights in Customer Systems.  Customer represents and warrants throughout the Term: (i) that it has a valid entitlement to use the Customer Systems throughout the Term; (ii) that it will comply with all agreements, terms and conditions, and policies in effect between Customer and third-party providers of Customer Systems; and (iii) that it has the right to provide CoachEm with access to the Customer Systems for the purpose of providing the Beta Offering.  

• Licenses.  Customer hereby grants to CoachEm: (i) a non-exclusive, worldwide, royalty-free, fully paid up, right and license during the Term to access and use Customer Data solely to the extent required to perform CoachEm’s obligations under the Agreement; (ii) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license during the Term to access and use Customer Systems solely to the extent required to perform CoachEm’s obligations under the Agreement; and (iii) a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to use the Usage Data solely in an aggregated, de-identified and/or anonymized format such that Customer, End Users and individuals whose data is included in the Usage Data is not identified, for the sole purpose of enhancing and improving the CoachEm Platform.    

• RESTRICTIONS ON USE.

1. Customer agrees that it will not, nor will it authorize or permit any End User or third party, to:

1. modify, copy, or create derivative works based on the Beta Offering or CoachEm Materials;

1. disassemble, reverse engineer, or decompile the Beta Offering or any part thereof, or attempt to gain any access to the Beta Offering or its related software, systems, platforms, or networks for any purpose, including in order to copy any ideas, features, content, functions, or graphics of the Beta Offering or CoachEm Materials;

1. interfere with or disrupt the integrity or performance of the Beta Offering;

1. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store any viruses or malicious code, via the Beta Offering;

• access the Beta Offering for the purpose of competitive benchmarking, competitive intelligence gathering, or other competitive purposes, including but not limited to developing competing products or services, or release any results of performance tests related to Beta Offering to any third party without CoachEm’s prior written consent; reverse engineer, analyze, or otherwise attempt to derive the methodologies, algorithms, or processes underlying the Beta Offering for competitive purposes;

• sell, distribute, rent, lease, sublicense, display, modify, timeshare, outsource or otherwise provide the Beta Offering to any third party or use it in a service bureau, outsourcing environment, or for the processing of data on behalf of a third party;

• use the Beta Offering in a manner or for any purpose that is not in compliance with all applicable federal, state, and local laws, rules, and regulations, including, without limitation, all import and export restrictions, the Fair Labor Standards Act, any statutes prohibiting discrimination because of race, creed, color, national origin, age, sex, or other prohibited classification, the FTC Act (15 U.S.C. §45(a)), the CAN-SPAM Act of 2003, and all state, federal and international laws with respect to privacy and data security (“Applicable Laws”); or

• use any components provided with the Beta Offering, including the CoachEm Materials, separately from the Beta Offering or use the Beta Offering for any purpose other than as specifically provided in these Beta Terms.

• Customer will be responsible for maintaining the confidentiality of the credentials used to access the Beta Offering. Customer will immediately notify CoachEm if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities under Customer’s account and/or using Customer credentials. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of, the Beta Offering and notify CoachEm promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Beta Offering.

• Customer is responsible for obtaining and maintaining all of the appliances, hardware, software, and services (Including Customer Systems) that Customer may need to access and use the Beta Offering.  Without limiting the foregoing, Customer must obtain, maintain, and pay all charges, taxes, and other costs and fees related to, internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Beta Offering.

• FEEDBACK. Customer shall promptly provide to CoachEm any relevant feedback on the functionality and performance of the Beta Offering and any test results (together, the “Feedback”).  CoachEm or its affiliates own all Feedback relating to the Beta Offering.  Customer hereby assigns to CoachEm all rights, title, and interest in the Feedback and all intellectual property therein. If requested by CoachEm, Customer agrees to execute such further instruments as CoachEm may reasonably request confirming CoachEm’s ownership interest in such Feedback.

• PROPRIETARY RIGHTS AND CONFIDENTIALITY.
  • CoachEm and its licensors retain all rights, title, and interest to the Beta Offering and all related intellectual property and proprietary rights. The Beta Offering and all third-party software and other content provided with the Beta Offering is protected by applicable patent, copyright, trade secret, and other intellectual property laws. Except for the limited licenses in the CoachEm Materials granted hereunder, CoachEm or its licensors owns all right, title, and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, and any other items used or made available to Customer to deliver the Beta Offering or any Setup Services (“CoachEm Materials”) and access to and use of any CoachEm Materials will be governed by the terms of these Beta Terms. CoachEm reserves any rights not expressly granted to Customer in these Beta Terms.
  •  “Confidential Information” means any non-public information, including pricing, technology, business methods, finances, that is marked or identified as “Confidential” or the equivalent when disclosed, or that a reasonable person would recognize as confidential from its nature or the circumstances of its disclosure. In connection with the Agreement, each party (the “Receiving Party”) may have access to certain of the other party’s (the “Disclosing Party”) Confidential Information or that of third parties that the Disclosing Party is required to maintain as confidential. Each party retains ownership of its Confidential Information. For purposes of clarity, all Customer Data, pricing information, technical specifications, integration details, and business information shared between the parties shall be deemed Confidential Information regardless of marking
  • The Receiving Party will: (i) only use Confidential Information to fulfill its obligations and exercise its rights hereunder; (ii) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and consultants who are bound by written obligations materially similar to this Section 6, and (iii) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but with at least a reasonable degree of care. The Receiving Party will promptly return or destroy the Disclosing Party’s Confidential Information and Personal Data upon termination or expiration of the Agreement, except that it may maintain limited copies of the same consistent with its established data retention policies and subject to this Section 5. The obligations in this Section 5(c) will apply during and for three (3) years after the Term.
  • Confidential Information does not include, and Section 5(c) does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the Receiving Party after disclosure; (ii) rightfully communicated to the Receiving Party by entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; or (iv) approved for disclosure by the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information (x) to comply with the order of a court, governmental body, or regulator, provided that, to the extent permitted by law, the Receiving Party will first give written notice to the Disclosing Party and reasonably cooperate with the Disclosing Party’s efforts, at the Disclosing Party’s expense, to limit the scope of such disclosure; or (y) to establish its rights under the Agreement.
• RESERVED

• TERM AND TERMINATION.  These Beta Terms commence on the Effective Date set forth in the Order Form and continue until the earlier of the following:
  • the expiration of the Term indicated in the Order Form; or

• the date of CoachEm’s notice to Customer of Customer’s breach of these Beta Terms.

Either party may terminate the Agreement for a material breach of any of its provisions by the other party that is not cured within thirty (30) days following written notice thereof. The Agreement may be terminated immediately by either party upon written notice if the other party (i) commences insolvency, receivership, bankruptcy, or any other proceedings for the settlement of its debts (or if such proceedings are instituted by a third party and not dismissed within thirty (30) days), (ii) makes an assignment for the benefit of creditors, or (iii) ceases to do business in the normal course.

Upon termination of these Beta Terms, all rights and licenses granted herein that are not expressly intended to survive termination will terminate, and Customer shall cease accessing or using the Beta Offering. Sections 2(b), 5, 7, 8, 9(d) and 9(e) survive the termination of these Beta Terms for any reason.

If a generally available offering (“GA Offering”) is announced that replaces a Beta Offering and Customer desires to acquire a license to access and use that GA Offering, then Customer, may, at its option, either (a) use the GA Offering for the remainder of the Term at no additional fees and subject to the terms of this Agreement, or (b) enter into a new agreement specific to the GA Offering, in which case any pre-paid fees under this Agreement will be applied to the fees for the GA Offering on a pro-rata basis. .

• DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY, AND EXCLUSIVE REMEDY.

1. THE BETA OFFERING, SERVICES, AND COACHEM MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. CoachEm, ITS AFFILIATES, AND LICENSORS DO NOT WARRANT THAT ANY BETA OFFERING, SERVICES, OR COACHEM MATERIALS WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT ANY BETA OFFERING, SERVICES, OR COACHEM MATERIALS ARE WITHOUT DEFECT, ERROR-FREE, OR WITHOUT DELAY, OR THAT THE OPERATION OF ANY BETA OFFERING WILL BE UNINTERRUPTED. CoachEm, ITS AFFILIATES, AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, MADE WITH RESPECT TO THE BETA OFFERING, SERVICES, OR COACHEM MATERIALS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, OR NON-INFRINGEMENT.

b. CoachEm DISCLAIMS AND REJECTS ANY LIABILITY TO CUSTOMER, OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE BETA TERMS OR THE BETA OFFERING, SERVICES, OR COACHEM MATERIALS (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF CoachEm HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CoachEm’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THESE BETA TERMS OR THE BETA OFFERING, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ACCESS THE BETA OFFERING DURING THE TERM SET FORTH IN THE APPLICABLE ORDER FORM. Notwithstanding the foregoing, the limitations in this Section 8(b) shall not apply to (i) damages arising from a data breach caused by CoachEm’s failure to implement reasonable security measures, (ii) regulatory fines or penalties imposed on Customer as a direct result of CoachEm’s breach of applicable data protection laws, or (iii) Customer’s indemnification obligations under these Beta Terms.

c. CoachEm will indemnify and hold harmless (including payment of reasonable attorneys’ fees and court costs) Customer and its officers, directors, and employees against any third-party claim to the extent alleging that the Beta Offering and CoachEm Materials infringe the intellectual property rights of such third party (each an “IP Claim”). The foregoing indemnification obligation will not apply to the extent the alleged infringement arises out of  Customer’s breach of the restrictions on use of the Beta Offering set forth in Section 3(a). 

d. The indemnification obligations in this Section Error! Reference source not found. are contingent on the indemnified party (i) promptly notifying the indemnifying party of any indemnifiable claim; (ii) granting the indemnifying party sole control over the defense and settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified party without its prior, written consent); and (iii) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense.If a third party asserts a claim against CoachEm arising from or related to a breach by Customer of a representation or warranty set forth herein (“Claim”), Customer will, at its own expense: (i) defend or settle the Claim (provided any such settlement is without cost or prejudice to CoachEm), and (ii) indemnify CoachEm for any damages finally awarded against CoachEm based on the Claim.

• MISCELLANEOUS.

1. No Guarantee as to New Versions. Customer acknowledges and agrees that CoachEm is not obligated to provide any maintenance releases, updates, or new versions of the Beta Offering.  CoachEm does not guarantee that any Beta Offering will become a GA Service. If a GA Service is announced to replace a Beta Offering, CoachEm does not guarantee that the GA Service will be similar in functionality to the Beta Offering referenced in these Beta Terms. These Beta Terms create no obligation on behalf of Customer to acquire any GA Service, or for CoachEm to provide any GA Service to Customer.

• Entire Agreement and Modifications. Except as set forth in the Order Form, these Beta Terms is the entire understanding between Customer and CoachEm and replace any prior or contemporaneous communication, agreement, or understanding of any kind, oral or written, concerning this subject matter. These Beta Terms may only be changed if mutually agreed to in writing by the parties. 

• Enforceability, Non-Waiver, and Non-Assignment. If any part of these Beta Terms is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. A waiver by a party of any breach of any term of these Beta Terms will not be construed as a waiver of any continuing or succeeding breach. Neither party may assign or otherwise transfer these Beta Terms or any of its rights or obligations without the prior written consent of the other party, except in connection with any merger, consolidation, sale of all or substantially all of such party’s assets, or otherwise by operation of law.

• Choice of Law. These Beta Terms and all related documents and all matters arising out of or relating to these Beta Terms, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts

• Third Party Arbitration. Any controversy or claim arising out of or relating to these Beta Terms, or breach thereof, which cannot first be settled amicably and satisfactorily between the parties, shall be determined in Boston, MA by binding arbitration in the English language administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be governed by the laws of the Commonwealth of Massachusetts. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any arbitration proceedings initiated hereunder, and any arbitration award, shall be maintained by the parties as confidential, except as is necessary to confirm, vacate, or enforce such arbitration award or as may otherwise be required by law, and for disclosure in confidence to the parties’ respective attorneys, advisors, and senior management. Any arbitral award may include compensatory damages against either party and shall be limited by the provisions of Section 7 (Limitation on Liability). Notwithstanding the above, either Party may seek injunctive relief in any court of competent jurisdiction against improper use or disclosure of Proprietary Information or the infringement or misappropriation of the intellectual property of the other.

• Independent Contractor. Nothing in these Beta Terms will be construed as creating a joint venture, partnership, franchise, fiduciary, employment, or principal/agent relationship between the parties.

• Links to Third Party Websites. The Beta Offering may contain hyperlinks to websites controlled by parties other than CoachEm. CoachEm is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them.

• Salesforce Integration Terms. In the event that the Order Form indicates that Salesforce is one of the Customer Systems being integrated with the CoachEm Platform under these Beta Terms, Customer acknowledges and agrees that: (1) Customer’s use of the CoachEm Platform to analyze Customer Data contained in the Salesforce Customer System will result in that Customer Data being transmitted or processed by CoachEm outside Salesforce’s system, and (2) Salesforce is not responsible for the privacy, security, or integrity of the Customer Data in connection with such transmittal or processing.

1. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Beta Terms, for any failure or delay in fulfilling or performing any term of these Beta Terms (except for any obligations of the Customer to make payments to CoachEm hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) national or regional emergency; and (f) other events beyond the reasonable control of the Impacted Party.  The Impacted Party shall use commercially reasonable efforts to give notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of fifteen (15) days following written notice given by it under this Section 14, the other Party may thereafter terminate these Beta Terms upon ten (10) days’ written notice.