EULA (End User Agreement)
Effective Date: 1 July 2021
This End User License Agreement (the “Agreement”) contains the terms and conditions governing access to and use of all the Software and Services obtained from Coach in the Corner (each, a “Solution”) (hereinafter referred to as Coach in the Corner) by you and any entity or individual you represent or for whose computer, smartphone or other Device you acquire the Solutions (“you”).
By clicking the “ACCEPT” or “ACTIVATE” or similar option in connection with this Agreement, you agreed to be bound by these terms and conditions not just with respect to the Solution you are obtaining at the time, but also for any additional Solution you later acquire directly or indirectly through that first Solution, including new and different products or services, or updates and upgrades to a prior Solution, for which you do not accept a separate end user license agreement.
If you do not wish to agree to these terms, please click “DECLINE”, “REJECT”, “CANCEL” or “BACK” or any similar option presented with this Agreement. If you do so, you will not be able to use the Solutions covered by this Agreement. If you decline to accept this Agreement, or if you are not satisfied with a Solution for any other reason, you may obtain a refund of the amounts you have paid for the Solutions within the past 30 days by following the instructions here.
Coach in the Corner may amend this Agreement at any time by notice provided to you in accordance with this Agreement, and your continued use of, or decision not to seek a refund for, any Solution at any point at least 30 days after the notice date will constitute your acceptance of the amendment of this Agreement.
Coach in the Corner may require that you accept the amendment of this Agreement in order to continue using Solutions you have previously purchased. If you decline to accept the amendment of this Agreement, Coach in the Corner may terminate your use of the affected Solutions, but will refund the amounts you paid for the Solutions (prorated for the unexpired portion of the Subscription Period).
Note that this Agreement comes in two parts.
Sections 1 through 11 of this Agreement (the “General Terms”) apply to all Solutions, including those listed below.
Section 12 sets out additional terms and conditions (“Special Terms”) that apply to specific Solutions, including Coach in the Corner Database, Coach in the Corner Assignment, Coach in the Corner Session, Coach in the Corner Canvas, Coach in the Corner Packages, Coach in the Corner Project, Coach in the Corner Fishbone, Coach in the Corner Reports and Mobile Solutions. If there is a conflict between the General Terms and the Special Terms, the Special Terms will control with respect to the Solution addressed by those Special Terms.
If you have any questions or concerns about this Agreement or the Solutions to which it relates, please direct them to the Coach in the Corner contacts shown in Section 11.17.
Note as well that in this Agreement you:
Represent that you are 18 years of age or older, and are authorized to accept this Agreement on behalf of all of the individuals and entities for whom (or for whose Device) you obtain Solutions;
Represent and warrant that you are not located in a country that is subject to a South African Government embargo, or that has been designated by the South African Government as a “terrorist supporting” country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using the Solutions under the laws of the country in which you are resident or from which you access or use the Solutions;
If, in the course of acquiring a Solution you provided Coach in the Corner with an email address and that email address later changes, you must update your user profile to ensure that you receive notices about Subscription Period extensions and other important information about this Agreement and the Solutions.
Affiliate means, with respect to Coach in the Corner, an entity controlling, controlled by or under common control with the Coach in the Corner. “Control”, as used in this section, means ownership of more than 50% of the outstanding voting interest of the applicable entity.
Applicable Conditions, with respect to any Solution, means the Subscription Period for the Solution, whether the Subscription Period automatically extends, the number and type of Devices for which the Solution is authorized, and other similar terms governing use of that Solution. The Applicable Conditions are specified (i) on the checkout payment page if you obtain the Solution over the Internet, from a Mobile App Store or by other electronic means, or (ii) on the package if you acquired the Solution on CD or other physical medium.
Authorized Purposesmeans (i) with respect to Free Solutions and Beta Solutions, your personal, non-commercial use, and (ii) with respect to other Solutions, your personal use or internal commercial use, and in each case not for resale or other exploitation for the benefit of a third party.
Coach in the Corner means Human and Mentor Consulting (Pty) Ltd South Africa, a company formed under the laws of the Republic of South Africa or, with respect to any Solution, the Coach in the Corner Affiliate providing the Solution to you.
Beta Solution means any Evaluation Solution and any Solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made.
Device means any mobile phone, mobile device, tablet, mobile network appliance, other mobile product (each, a “Mobile Device”) or any personal computer running on an operating system supported by Coach in the Corner as specified in the Applicable Conditions and in the Technical Specifications in respect of the Solution.
Dispute has the meaning ascribed to it by Section 11.3.1 of this Agreement.
Evaluation Solution means an otherwise paid Solution that Coach in the Corner provides without receiving payment for trial or evaluation purposes.
Extension Period has the meaning ascribed to it by Section 3.1 of this Agreement.
Free Solution means any Solution other than Beta Solutions that Coach in the Corner designates as “free” or otherwise provides without charge.
Initial Subscription, for each Solution, means the period beginning on the date you obtain the Solution and continuing for the term specified by the Applicable Conditions.
Managed Services (or MSP Services) means remote Device monitoring and management services you provide to your customer, including Coach in the Corner Services you have agreed to provide to such customer pursuant to an agreement between you and such customer.
Mobile App Store means an online store that currently or in the future offers Mobile Solutions, including through the Device itself.
Mobile Solution means a Solution available to you on a Mobile Device platform, e.g., Android, iOS, and Windows Phone.
Personally Identifiable Information means information that can be used to uniquely identify, contact, or locate a single individual or can be used with other sources to uniquely identify a single individual including, as applicable under applicable law, personal data (as the term is used by the South Africa Protection of Personal Information Act and the EU Data Protection Directive 95/46/EC).
Service means a Solution comprising services delivered online or by telephone.
Software means a Solution comprising software intended to be installed on a Device and shall include any Updates.
Solution has the meaning set forth in the preamble.
Subscription Period, with respect to each Solution, means the Initial Subscription together with all Extension Periods.
Technical Specifications means the technical documentation applicable to the relevant Software.
Third Party Materials means software, services, websites, offers and promotions or products provided by any third party and governed by Third Party Terms and Conditions.
Update means content or code Coach in the Corner deploys to update a Solution including but not limited to new releases or versions of Software or any other available update provided by Coach in the Corner from time to time in connection with a Solution.
US Government means the federal government of the United States of America.
Your Coach in the Corner Account:
- To the extent you purchased your license directly from Coach in the Corner pursuant to a signed, written agreement, this requirement does not apply to you, or if applicable, your MSP Services customers.
- Coach in the Corner, subject to the Special Terms, may from time to time update any Solution or replace a Solution with another Solution with similar functionality without requesting or obtaining your separate consent, and your Device or certain Device functions may not be available to you while the Update is in process;
- Some Solutions, including those comprising Software, may contain a “time out” feature that automatically will render the Solution inoperative at the end of the Subscription Period.
2. LICENSE GRANT; GENERAL.
2.1 Grant of License.
Coach in the Corner, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive and non-transferable license to use each Solution you purchase or otherwise properly acquire, in each case during the applicable Subscription Period for Authorized Purposes in accordance with the Applicable Conditions and Technical Specifications. The Subscription Period for Free Solutions continues indefinitely, without the need for extensions, until you orCoach in the Corner terminates it in accordance with this Agreement.
2.2.1 General. You will not, and will not permit any third party to, (i) use any license or other authorization number supplied by Coach in the Corner in connection with any Solution on more than the number of Devices specified by the Applicable Conditions, (ii) disclose any license or authorization number to any party other than Coach in the Corner or Coach in the Corner designated representatives, (iii) except as expressly authorized by law, (A) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any Solution or any portion of the Solution (including without limitation any related malware signatures and malware detection routines), or (B) change, modify or otherwise alter any Solution (including without limitation any related malware signatures and malware detection routines), (iv) publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any Solution, (v) grant any third party access to or use of any Solution on a service bureau, timesharing, subscription service or application service provider or other similar basis, (vi) test or benchmark, or disclose or publish testing or benchmark results, for any Coach in the Corner Solution without Coach in the Corner’s prior written consent or (vii) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of any Solution.
2.2.2 Software. In addition to the limitations established by Section 2.2.1, you will not (i) copy Software for any purpose other than, as reasonably necessary to use the same as contemplated by this Agreement, (ii) install the Software on any operating system not supported by Coach in the Corner as reflected in the Technical Specifications, or (iii) remove any copyright, trademark or other proprietary notices from the Software.
2.2.3 Administrator Rights. Certain Solutions grant you or another user administrative privileges that, among other things, may allow the administrator to monitor other Devices and/or the status of Solutions deployed on other Devices, including for example Solution notifications and messages. You represent and warrant that you will exercise administrator privileges only with respect to Devices and Solutions for which you are authorized and for no other purpose. You also represent and warrant that you have the authority to accept this Agreement on behalf of owners and users of those administered Devices, and hereby accept this Agreement on their behalf.
2.2.4 Warning. IF YOU USE ANY SOLUTION FOR PURPOSES OR IN A MANNER NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT, YOU ARE COMMITTING A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS, AND ALL WARRANTIES PROVIDED BY Coach in the Corner FOR THE PRODUCT WILL TERMINATE IMMEDIATELY FOLLOWING YOUR BREACH.
2.3 Third Party Fees. You may incur access fees or data or usage fees from third parties (such as your Internet provider or mobile carrier) in connection with your use of a Solution. For instance, you may incur such fees if you use the Coach in the Corner Mobile Solution and it downloads Updates. You are responsible for all such fees.
2.4 Updates. Coach in the Corner, from time to time during the Subscription Period and, without your separate permission or consent, may deploy Updates for any Solution, and you may not be able to use the applicable Solution or Device (or certain functions of the Device) until the Update is fully installed. Updates will be deemed a part of the Solution for all purposes under this Agreement. Updates may include both additions to and removals of functionality offered by a Solution or may replace it entirely, and the content and functionality of such updates is at the sole discretion of Coach in the Corner. Coach in the Corner or your Device may offer you the option to decline or delay Updates, but you must download and permit installation of all available Updates to obtain maximum benefit from the Solution. Coach in the Corner may stop providing support for a Solution until you have accepted and installed all Updates. Coach in the Corner will determine when and if Updates are appropriate and has no obligation to make any Updates available to you. Coach in the Corner in its sole discretion may stop providing Updates for any version of the Solution other than the most current version, or Updates supporting use of the Solution in connection with any versions of operating systems, email programs, browser programs and other software with which the Solution is designed to operate.
2.5 Conflicting Functionality and Uninstallation. Some third-party applications, such as other anti-virus products, may not allow the Solutions to run correctly. If you choose to ignore the warnings provided during the installation of the Solution, such Solutions may not function properly, and notwithstanding anything to the contrary in this Agreement, Coach in the Corner disclaims any and all warranties and liability with respect to such Solutions. Additionally, Coach in the Corner does not support third-party applications which provide uninstallation functionality for our Solutions as they may cause further problems for the end user. Should you choose to use such third-party uninstallers, notwithstanding anything to the contrary in this Agreement, Coach in the Corner disclaims any and all warranties and liability with respect to such Solutions.
2.5.1 User Comments. Coach in the Corner welcomes your comments concerning Solutions, including notice that you have experienced a failure, error or other malfunction, and suggestions for additional or different features and functions. Please send us your comments and suggestions using the web form located at http://www.coachinthecorner.co.za/contact/. Coach in the Corner accepts no obligation to respond or act on any such comments or suggestions and this invitation to comment does not constitute any admission of liability or product failure of a Solution, but you grant Coach in the Corner a perpetual, irrevocable, transferrable, sublicensable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever your comments and suggestions in any Solution and other products and services.
2.6 User Content. Certain Solutions may enable you to publish or share with others content you have generated or obtained from other sources (“User Content”). You retain any and all intellectual property rights you already hold under applicable law in User Content you publish or share through the Solution, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of others in any User Content that you may use or modify. You grant to Coach in the Corner, a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of the User Content you publish or share through a Solution (and derivative works thereof), solely for the purpose of providing the Solutions to you under this Agreement. Each time you publish or share any User Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you publish or share, and that, in regard to that User Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to publish or share the User Content and grant Coach in the Corner the right to use it as described in this Section, all without any Coach in the Corner obligation to obtain consent of any third party and without creating any obligation or liability of Coach in the Corner; (b) the User Content is accurate; (c) the User Content does not and, as to Coach in the Corner’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate this Agreement or cause injury or harm to any person.
3. SUBSCRIPTION EXTENSIONS, TERMINATION.
To the extent you purchased your license directly from Coach in the Corner under a signed, written agreement or from an Coach in the Corner business partner or directly online you are paying directly for your Solution and this provision applies to you. Please refer to your written agreement for subscription periods and renewals information.
3.1 Subscription Extensions. At the end of any Subscription Period, your subscription may extend for successive time periods (each, an “Extension Period”) in accordance with this Section 3.1.
3.1.1 Automatic Extensions. If, under the Applicable Conditions for a given Solution, the Subscription Period automatically extends for an additional month, year or a similar consecutive time period, Coach in the Corner may provide you with a notice that includes instructions on how to cancel your subscription at the end of the current Subscription Period. Should you cancel your subscription during a Subscription Period no refunds will apply. You may cancel your subscription at the end of the Subscription Period by following the instructions in the notice. You may also cancel your subscription during the Subscription Period at any time by logging into the Subscriptions section of your profile at https://www.coachinthecorner.co.za/login/. Cancelling your subscription will stop recurring fees going forward, but will not retroactively refund current payments, and you will retain access to your paid-for Solutions until the end of the then-current Subscription Period. If you do not cancel the subscription, Coach in the Corner will charge your credit card or debit card, where applicable, and within a reasonable time prior to the end of the then-current Subscription Period for the then-current extension fee (which may be higher than the price you initially paid) and, on receipt of payment, will extend the Subscription Period for the applicable Extension Period.
3.1.2 Manual Extensions. If, under the Applicable Conditions, the Subscription Period does not automatically extend, Coach in the Corner may (but is not required to) notify you prior to the conclusion of the Subscription Period that your Subscription Period is due to expire and may offer you the opportunity to extend the Subscription Period at Coach in the Corner’s then-current price (which may be higher than the price you initially paid). You may accept the offer by following the instructions set forth in the notice, in which case the Subscription Period will extend for the period you select.
3.2 Refunds. Coach in the Corner for most Solutions does not offer a 30-day money-back guarantee. If you have paid for an eligible product such product will be available to you for the balance of you Subscription Period.
3.2.1 Other Solutions. Unless otherwise provided in this Agreement, you may be able to cancel any Solution that you have purchased by following the instructions in the subscriptions section of your Profile at https://www.coachinthecorner.co.za/login/.
3.3 Payment Information. To ensure your use of a Solution is not interrupted, Coach in the Corner may participate in recurring billing programs or account updated services. If your Subscription Period automatically extends and Coach in the Corner is unable to charge the credit card or debit card Coach in the Corner may have on file for you, Coach in the Corner at its option may obtain an updated card number, expiration date or other updated payment information from your bank or another source, or your card issuer may automatically charge your card without notifying Coach in the Corner or you.
3.4 Termination. Coach in the Corner, in addition to such other rights as may be available at law, in equity or otherwise, may terminate your license to any or all Solutions without liability (i) for convenience on five (5) days’ prior notice, provided that Coach in the Corner, in its sole discretion, shall for paid Solutions, either (a) grant a license for a substantially similar product for the remainder of the Subscription Period, or (ii) for breach or cause at any time without notice if you commit a breach of this Agreement. For the avoidance of doubt, for Free Solutions and Beta Solutions, Coach in the Corner shall have no further obligation to you beyond providing five (5) days’ prior notice to terminate for convenience in accordance with this Section and shall have no obligation to provide notice in the case of a termination for your breach of this Agreement.
3.5 Effect of Termination. On the expiration of the applicable Subscription Period for any relevant Solution or termination of the Subscription Period for any relevant Solution or this Agreement, you shall cease using the relevant Solutions, Coach in the Corner may cease making Updates available to you, and the relevant Solution may cease functioning. Sections 1, 2.5.1, 2.6, 4, 5, 6, 7, 8, 9, 10, 11 and 12 will survive the expiration or termination of this Agreement.
4. THIRD PARTY MATERIALS; THIRD PARTY TERMS AND CONDITIONS.
Coach in the Corner, directly or through a Solution, may present links to or offers for Third-Party Materials, all of which are controlled by third parties and most of which are subject to Third-Party Terms and Conditions. Please read those conditions carefully before accepting them. Coach in the Corner is not responsible for the content or performance of any such Third-Party Materials, does not warrant or endorse any such Third-Party Materials or assume or have any liability whatsoever to you or any third party with respect to such Third-Party Materials. If you access, download, or use such Third-Party Materials, you do so entirely at your own risk.
5.1 Coach in the Corner reserves all rights in the Solutions not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Solution (including, but not limited to, malware signatures and other data files, images appearing in the Solution and screen displays as well as any and all documentation relating to the Solution) are owned by Coach in the Corner or its licensors, and are protected by South African copyright laws, foreign copyright laws, international treaties and other applicable laws. You may not copy the software in any manner.
5.2 Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any third-party products or services including Third Party Materials available on or through a Solution are the property of the third-party providers or their respective licensors.
6.1 General. Except as provided by Section 6.2, Coach in the Corner represents with respect to each Solution that, on delivery of the Solution and for a period of thirty (30) days thereafter (i) the medium (if any) on which the Solution is delivered will be free of material defects, and (ii) subject to Section 6.3, the Solution will conform to the description, if any, set forth in the Applicable Conditions and/or the Technical Specifications. The foregoing warranty applies only to the Solution as originally delivered and does not apply to Updates or defects caused by the combination, operation or use of the Solution with software, hardware or other materials not provided by Coach in the Corner, or by Devices, software, or other materials that do not conform to Coach in the Corner requirements set forth in the Technical Specifications. Your sole and exclusive remedy for breach of the warranty in this Section 6.1 is replacement of the defective media or Solution or, at Coach in the Corner’s option, return of the Solution for a full refund. In order to exercise your rights under this Section 6.1, you must uninstall and destroy all copies of the Solution you may have made (including all archival copies) and follow the instructions at the subscriptions section of your profile at https://www.coachinthecorner.co.za/login/
6.2 Free Solutions and Beta Solutions. THE PROVISIONS OF THIS SECTION 6.2 APPLY IN PLACE OF SECTION 6.1 WITH RESPECT TO FREE SOLUTIONS AND BETA SOLUTIONS. ALL Coach in the Corner FREE SOLUTIONS AND BETA SOLUTIONS ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT SUPPORT OR OTHER SERVICES BY Coach in the Corner.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 6.1 OF THIS AGREEMENT, Coach in the Corner PROVIDES EACH SOLUTION ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND Coach in the Corner AND ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED, OR OTHER BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE AFFILIATES, REPRESENTATIVES, VENDORS, AGENTS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOLUTIONS, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, WHETHER GIVEN BY ANY THIRD PARTY LICENSORS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OR CONDITION OF NONINFRINGEMENT. Coach in the Corner DOES NOT WARRANT THAT THE OPERATION OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SOLUTIONS WILL WORK PROPERLY ON ANY GIVEN DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF HARDWARE AND/OR SOFTWARE, OR THAT THE SOLUTIONS WILL PROVIDE COMPLETE PROTECTION FOR THE INTEGRITY OF SELECTED DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Some jurisdictions do not allow limitations on certain warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
6.4 Hazardous Environments. Solutions are not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use any Solution. Without limiting the provisions of Sections 6.2 and 6.3 of this Agreement, Coach in the Corner and its licensors hereby disclaim any express or implied warranties of fitness for such purposes or uses.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Coach in the Corner OR ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED OR OTHER BUSINESS PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY, OR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) INCURRED FOR LOSS OF BUSINESS, PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY DEVICE OR SOLUTION INCLUDING THE SOLUTION, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT OR THE SOLUTION PROVIDED HEREUNDER, EVEN IF Coach in the Corner HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Coach in the Corner WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION, INADVERTENT DISCLOSURE OR LOSS OF DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED BY OR IN CONNECTION WITH A SOLUTION REGARDLESS OF THE CAUSE.
IN NO EVENT SHALL Coach in the Corner’S LIABILITY RELATED TO ANY SOLUTION EXCEED THE LESSER OF (I) THE FEES YOU ACTUALLY PAID OR ARE REQUIRED TO PAY FOR THE SOLUTION, AND (II) THE Coach in the Corner SUGGESTED RETAIL PRICE FOR THE SOLUTION AS OF THE DATE YOU RECEIVED IT (OR, WITH RESPECT TO A FREE SOLUTION OR BETA SOLUTION, R5.00 (R1.00 FOR FREE AND BETA MOBILE SOLUTIONS). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS Coach in the Corner, ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS AND OTHER BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM YOUR USE OF THE SOLUTION OR ANY VIOLATION OF THIS AGREEMENT BY YOU, INCLUDING BUT NOT LIMITED TO ANY BREACH OR ALLEGED BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR UNDERTAKINGS HEREUNDER INCLUDING PROVACY AND VIOLATION OF STORED DATA SUBJECT INFOMRATION. Coach in the Corner RESERVES THE RIGHT TO ASSUME, AT ITS SOLE EXPENSE, THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH Coach in the Corner IN ASSERTING ANY AVAILABLE DEFENSES.
9. PRIVACY AND SECURITY.
10. USAGE MONITORING/COMPLIANCE.
Coach in the Corner MAY MONITOR YOUR USE OF A SOLUTION TO CONFIRM THAT IT COMPLIES WITH THE TERMS OF THIS AGREEMENT. SHOULD Coach in the Corner DETERMINE THAT YOU ARE IN BREACH OF THIS AGREEMENT, Coach in the Corner, IN ADDITION TO SUCH OTHER RIGHTS THAT MAY BE AVAILABLE AT LAW, EQUITY OR OTHERWISE, SHALL BE ENTITLED TO EXERCISE ITS RIGHTS UNDER SECTIONS 3 AND 8 OF THIS AGREEMENT.
11.1 Notice. Coach in the Corner may at any time deliver any notice to you via electronic mail, pop-up window, dialog box or other means, even though in some cases you may not receive the notice unless and until you launch a Solution. Any such notice will be deemed delivered on the date Coach in the Corner first makes it available through a Solution, irrespective of when you actually receive it.
11.2 Choice of Law. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of the Republic of South Africa excluding its conflict of laws principles.
11.3 Binding Arbitration Agreement and Class Action Waiver.
11.3.1 This Binding Arbitration Agreement and Class Action Waiver applies to any Dispute arising from or related to a Solution or this Agreement and involving you and Coach in the Corner and/or its Affiliates. “Dispute”, for purposes of this provision, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, fraud, and violation of statute or regulation). The foregoing definition of “Dispute” will be given the broadest possible meaning allowable under law.
11.3.2 In the event of a Dispute, you must provide Coach in the Corner with a notice of Dispute, which is a written statement of the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by email to Coach in the Corner at firstname.lastname@example.org (stating Subject: Notice of Dispute)
11.3 Notice of Dispute Under EULA.
11.3.3 If you and Coach in the Corner do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration governed by the South Africa law applicable. You are giving up the right to litigate (or participate in litigation as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Association of Arbitrators (“Southern Africa”). Any court with jurisdiction over the parties may enforce the arbitrator’s award.
11.3.4 Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. You will not seek to have any Dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
11.3.5 Any arbitration will be conducted by the Association of Arbitrators (“Southern Africa”). If you accepted this Agreement as a consumer, (A) the proceedings will be subject to Association of Arbitrators (“Southern Africa”)’s “Supplementary Procedures for Consumer Related Disputes” effective September 15, 2005, and the associated “Costs of Arbitration (Including AAA Administrative Fees)” effective March 1, 2013 (collectively, the “Consumer Procedures”), (B) Coach in the Corner will pay the consumer cost specified in section (i) of “Costs of Arbitration to be bourne by parties equally. If you are a business customer, the proceedings will be subject to Commercial Arbitration Rules (the “Commercial Procedures”). Those Consumer Procedures or Commercial Procedures (as applicable, the “Procedures”) are appropriately applied to any Dispute between the Parties, and you will not advocate otherwise in any proceeding. You will commence arbitration only in the county or other similar political subdivision in which you reside. Except as you and we agree, the arbitration proceedings will be conducted by conference call. Such arbitration will be governed by the laws of the Republic of South Africa
11.3.6 If this provision is found to be illegal, invalid or unenforceable as to all or some parts of a Dispute, then Section 11.3 will not apply to those parts. Instead, and only in that circumstance, those parts will be severed and will proceed in a court of law, subject to all other provisions of this Agreement, in which case the governing law and exclusive jurisdiction for any such court proceeding shall be the Johannesburg, Gauteng courts in the Republic of Southern Africa. For purposes of any such court proceeding, you consent to, and will not challenge, those courts’ personal jurisdiction over you, and further waive objection based upon improper venue or forum non conveniens or to seek transfer to another district or jurisdiction.
11.4 Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
11.5 Severability. Should any provisions of this Agreement be deemed illegal, invalid or unenforceable under any applicable laws and regulations, all other provisions of this Agreement shall remain in full force and effect.
11.6 Impossibility. Coach in the Corner shall be not liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labour disturbances (including without limitation a strike or other labour disturbance arising in respect of Coach in the Corner and its Affiliates, agents, licensors, representatives, suppliers, distributors, resellers and other business partners), acts of war or terror, floods, sabotage, fire, natural or other disasters or Acts of God.
11.7 Waiver. The failure of either party to insist on the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with the Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.
11.8 Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of Coach in the Corner. Coach in the Corner may assign this Agreement at any time in its sole discretion without any prior written consent by you.
11.9 Construction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event that an ambiguity or question of intent or interpretation arises, in any judicial proceeding or otherwise, the terms of this Agreement shall be construed as having been drafted jointly by the parties, and no presumption or burden of proof shall arise favouring or disfavouring any party by virtue of the authorship of any provisions of this Agreement.
11.10 Government License. Any Solution provided to the Government is provided with the commercial license rights and restrictions described elsewhere herein. Coach in the Corner reserves all unpublished rights under the South African and United States of America Copyright laws.
11.12 Export Controls. You must comply with all applicable South African, U.S. and international laws governing export and re-export of the Solutions, including the South African and U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the South African Government, United States Government, and other governments. Without derogating from the generality of the foregoing, (i) you represent that you are not a member of any of the denied person list, unverified list, entity list, specially designated nationals list, debarred list or any other lists published by the U.S. Government, (ii) you shall not use, export or re-export the Solution to territories, destinations, companies or individuals in violation of U.S. and E.U. embargos or trade sanctions, including without limitation, in the following countries: Cuba, Iran, North Korea, Sudan and Syria.
11.13 No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of you and Coach in the Corner and/or its Affiliates, and their respective agents, licensors, representatives, suppliers, distributors, resellers, and other business partners. Other than as provided in Section 12.5.3(b)(vi), no person not a party to this Agreement may bring a cause of action pursuant to this Agreement as a third-party beneficiary hereof.
11.14 Language. This Agreement was originally prepared in the English language. Although Coach in the Corner may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.
11.15 Internet connection. Certain Solutions may require an active and stable connection to the Internet in order to function. It is therefore your responsibility to ensure that you have at all times an active and stable Internet connection.
11.16 Product names. Coach in the Corner reserves the right to change the name of its Solutions in its sole discretion from time to time.
11.17 Contact Information. Coach in the Corner may be contacted: email@example.com.
11.17.1. With respect to all Solutions at Attention: Customer Care Manager, c/o Coach in the Corner firstname.lastname@example.org.
12. SPECIAL TERMS.
The following Special Terms apply to certain Solutions. In the event of a conflict between these Special Terms and the remainder of the Agreement, these Special Terms will govern with respect to the applicable Solutions.
12.1. Coach in the Corner Tools. Coach in the Corner Database, Coach in the Corner Assignment, Coach in the Corner Session, Coach in the Corner Canvas, Coach in the Corner Packages, Coach in the Corner Project, Coach in the Corner Fishbone, Coach in the Corner Reports, Coach in the Corner Evaluations and Mobile Solutions.
12.2. Coach in the Corner Database.
12.2.1. Coach in the Corner includes the Coach in the Corner Database within all Solutions. Coach in the Corner Database allows you to manage the subset of your clients’ data which is provided for and stored on the Coach in the Corner system. Such data must be managed and maintained by you in accordance with the Protection of Personal Information Act of law as applicable the jurisdiction(s) in which you operate your business and\or reside.
12.2.2. By default, the applicable Solutions deliver the ability to allow you to alter your personal and business entities’ email signatures. You may change your preferences at any time by clicking the relevant menu icons on your Internet browser.
12.2.3. Without limiting the provisions of Section 6, Coach in the Corner DISCLAIMS ANY WARRANTY THAT Coach in the Corner Database WILL STORE MORE THAN WHAT IS SPECIFIED.
12.2.4. Coach in the Corner Database functions only in the following Internet browsers: Microsoft Internet Explorer, Mozilla Firefox and Google Chrome. In iOS and MAC OSX.
12.3. Coach in the Corner Personal Support.
The terms of this Section 12.3 apply to Installation Help, and other services we market as Personal Support, in each case that you order through www.coachinthecorner.co.za (“Personal Support”).
12.3.1. Coach in the Corner Obligations. Coach in the Corner will make commercially reasonable efforts to perform the Personal Support services you purchase. If your Device and network meet the requirements of this Section 12.3 and you have otherwise fulfilled the responsibilities assigned to you by this Section 12.3, and Coach in the Corner nevertheless fails to complete a Personal Support service to your reasonable satisfaction, Coach in the Corner, as its sole obligation and your sole and exclusive remedy, will refund the fee you paid for the applicable Personal Support service. The fees you pay for Personal Support are otherwise non-refundable. Without limiting Section 6.3, Coach in the Corner DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT ANY PERSONAL SUPPORT SERVICE WILL RESOLVE THE ISSUES FOR WHICH YOU PURCHASED THE SERVICE OR OTHERWISE BE SATISFACTORY TO YOU.
12.3.2. Limitations on Personal Support.
(a) Redemption Period.
You must use any (i) one-time Personal Support within thirty (30) calendar days from your date of purchase of said one time service and (ii) subscription Personal Support during the applicable Subscription Period (as applicable, the “Redemption Period”). Your right to receive Personal Support expires at the end of the Redemption Period unless you make an additional purchase.
(b) System Requirements.
Personal Support is available only for Devices and networks meeting the Technical Specifications. If your Device or network does not meet the applicable specifications, Coach in the Corner may not be able to provide the Personal Support you purchase.
(c) Scope of Services.
(i) Personal Support is limited to the services expressly described by the applicable description then-currently posted at www.Coach in the Corner.com. Please read the description carefully, even if you have used Personal Support before, because Coach in the Corner reserves the right to change the services and features at any time by posting a revised description at www.coachinthecorner.co.za. If Coach in the Corner, in the course of providing Personal Support, determines that your issue is beyond the scope of Personal Support, it will make commercially reasonable efforts to describe the nature of the issue so you can seek appropriate assistance.
(ii) In addition, Personal Support subscriptions designed to provide you with a reasonable amount of support during the Subscription Period for the Devices specified by the Applicable Conditions. Coach in the Corner may terminate or suspend your subscription without notice and with no obligation to refund the applicable fees if, in Coach in the Corner’s sole discretion, it determines that (A) you are breaching this Agreement or abusing Personal Support by requesting services.
(1) beyond those reasonably expected from someone using a subscription-based plan in accordance with the Applicable Conditions and fair use policy,
(2) for any Device not specified by the Applicable Conditions, or
(3) for software or services that you have not properly licensed, or (B) someone other than you is attempting to use your Personal Support for his or her own benefit.
12.3.3. Your Obligations.
(a) Preparation. Before you request Personal Support, you must
(i) confirm that you have sufficient administrative privileges for the applicable Devices to permit Coach in the Corner to remove and install software, change Device settings, and otherwise configure the Devices and network to receive and implement Personal Support,
(ii) confirm that the applicable Devices are connected to the Internet using a connection meeting the technical requirements specified at http://www.coachinthecorner.co.za/technical-specifications. You must also create a complete back-up of all data on the Device, because Coach in the Corner DISCLAIMS ANY ALL LIABILITY FOR AND RESPONSIBILITIES WITH RESPECT TO THE LOSS, CORRUPTION OR RECOVERY OF DATA, PROGRAMS, USER SETTINGS AND OTHER MATERIALS AND FUNCTIONALITY AFFECTED BY THE PERSONAL SERVICES, INCLUDING LOSS OR CORRUPTION CAUSED BY Coach in the Corner’S GROSS NEGLIGENCE OR RECKLESSNESS.
(b) Passwords. Coach in the Corner strongly advises that, once a Personal Support session is complete, you change any password you disclosed to Coach in the Corner in the course of the session.
(a) When you request Personal Support, the following information may be collected and sent from your personal computer to Coach in the Corner via an Internet connection:
i. The information entered by you into Coach in the Corner’s online interface when requesting Personal Support;
ii. The type and version of operating system and Internet browser used by your personal computer;
iii. The hardware that you have connected with your personal computer; and
iv. The application, software and tools that you have on your personal computer.
(b) During your Personal Support session, the following information may be collected and sent to Coach in the Corner via secured connection or from the computer on which the Support Tool or software is installed:
i. Installed hardware and peripherals.
i. Installed Operating System.
ii. Installed programs and active processes information.
iii. Application log file information and registry data;
Browser information including security and temporary file settings;
a. System information related to the operating system, memory and disk space, proxy configuration, and directory listings for the Support Tool or software;
b. The security status (good/fair/poor) of the computer as determined by the Support Tool or software;
c. The number of files scanned, threats found, and threats fixed by the Support Tool or software;
d. The type of threats found;
e. Whether a firewall is active; and
f. Whether antivirus software is installed, running, and up to date.
(c) Coach in the Corner uses the collected information to analyze, diagnose and attempt to resolve the problem you have encountered, and optimize the functionality of Coach in the Corner’s products. The information may be transferred to a Coach in the Corner affiliate in the South Africa or other country/ies that may have fewer protective data protection laws than the region in which you are situated (including the European Union), but Coach in the Corner has taken steps so that the collected information, if transferred, receives an adequate level of protection.
(d) Coach in the Corner may disclose the collected information if asked to do so by a law enforcement official as required or permitted by law or in response to a subpoena or other legal process. To promote awareness, detection and prevention of internet security risks, Coach in the Corner may share certain anonymous information with research organizations and other security software vendors. Coach in the Corner may also use anonymous statistics derived from the information to track and publish reports on security risk trends and product improvement.
(e) Coach in the Corner may use third party contractors to deliver parts or the whole of Personal Support to you. You hereby acknowledge that such third parties have their own privacy policies which govern use of their websites and/or services.
12.5. Mobile Solution.
12.5.1. General. This Agreement will apply in lieu of any end user license or other terms made available to you by a Mobile App Store.
12.5.2. Solutions Downloaded from Google Play.
(a) Google Play Store. The Google Play Store means the Mobile App Store available through a Device and at http://play.google.com (“Google Play Store”).
(b) License. For the avoidance of doubt, the license granted in Section 2.1 of the Agreement is in lieu of any rights to use a Solution that would otherwise be granted by the default terms for applications downloaded from the Google Play Store.
(i) For App Purchases from the Google Play Store. You may automatically refund a purchase of a Solution purchased through the Google Play Store the first time you purchase it for up to 15 minutes after such purchase. After 15 minutes, you may request a refund in accordance with the process available at http://www.coachinthecorner.co.za/billing for any reason for up to 30 days after purchase.
(ii) For In-App Purchases. You may not return or refund any in-app purchases from a Mobile Solution. For subscriptions purchased in-app, you may cancel your subscription before it is extended and you will not be charged again. You will, however, retain access to the subscription content you purchased for the remainder of the final Subscription Period.
12.5.3. Solutions Downloaded from an Apple App Store. The following additional terms apply for any Solution acquired through the iTunes App Store (https://itunes.apple.com/us/genre/ios/id36?mt=8) and the Mac App Store (https://itunes.apple.com/us/genre/mac/id39?mt=12) (each, an “Apple App Store”):
(a) The licenses granted by Section 2.1 are limited to a non-transferable license to use the Solution on any iPhone, iPod Touch or other Apple-powered Device that you own or control and as permitted by the Usage Rules set forth in the Apple App Stores Terms of Service, available online at http://www.apple.com/legal/internet-services/itunes/us/terms.html or through such sites and other means made available to you by Apple.
(b) Coach in the Corner and you acknowledge and agree that:
(i) This Agreement is concluded solely between the parties, and not with Apple. Coach in the Corner, not Apple, is solely responsible for the Solutions and the content thereof.
(ii) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Solution.
(iii) If the Solution fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Solution to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Solution, and that, as between you, Coach in the Corner and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Coach in the Corner’s sole responsibility.
(iv) Coach in the Corner, not Apple, is responsible for addressing any claims by you or any third party relating to the Solution or your possession and/or use of that Solution, including, but not limited to: (i) product liability claims; (ii) any claim that the Solution fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(v) In the event of any third-party claim that the Solution or your possession and use of that Solution infringes that third party’s intellectual property rights, Coach in the Corner, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(vi) Apple and Apple's subsidiaries are third party beneficiaries of this Agreement and, on your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.
12.5.4. Solutions Downloaded from the Windows Phone Store.
(a) You are permitted to download and run the Solution on up to five (5) Windows phone devices associated with your Microsoft account without payment of any additional fees.
(b) Neither Microsoft nor the manufacturer of your Device has any responsibility or liability to you with respect to the Solution.
(c) The Solution may connect to Internet-based wireless services. Your use of the Solution operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system and application software, and peripherals) for Internet-based or wireless services. If other terms are provided in connection with your use of the services, those terms also apply.
(d) You may not use any Internet-based service in any way that could harm it or impair anyone else's use of it or the wireless network. You may not use the service to try to gain unauthorized access to any service, data, account or network by any means.
(e) No Express Warranty. THE WARRANTIES PROVIDED BY SECTION 6.1 SHALL NOT APPLY TO ANY MOBILE SOLUTIONS RUNNING THE WINDOWS PHONE. THE DISCLAIMER UNDER SECTION 6.3 SHALL BE AMENDED BY DELETING “EXCEPT AS EXPRESSLY PROVIDED BY SECTION 6.1 OF THIS AGREEMENT”.
12.5.5. Solutions Downloaded from the Amazon Appstore.
(a) You may download additional copies of the Solution to compatible Android devices that have been linked to your Amazon.com account that you used to buy the Solution in accordance with Amazon’s rules and policies for the Amazon Appstore.
(b) You acknowledge and agree that Amazon has no responsibility or liability with respect to your use of the Solution or any content or functionality in the Solution.
(c) All sales are final. Amazon does not accept returns of the Solution.
12.6. Coach in the Corner Online Backup Service.
The terms of this Section 12.6 apply to all facets of Coach in the Corner Online Backup.
12.6.1. Log-in. The username and password (together, the “Log-in”) you select in registering for Coach in the Corner will permit you, or anyone else, to upload and download information and otherwise use the service. You are solely and exclusively responsible for maintaining the confidentiality and security of your Log-in. Moreover, you are responsible and liable for any and all activities that occur under Log-in. You must notify us immediately if you become aware, or even suspect, a Third Party is making unauthorized use of your Log-in that the security of your account has otherwise been breached. However, regardless of such notification, we will under no circumstances whatsoever be liable or responsible for any loss that you incur as a result of any unauthorized use of your Log-in (whether such use occurs with or without your knowledge). In addition, you will be responsible in the event that we (or any third party) incurs any losses or damages whatsoever as a result of your account (whether authorized or known, or not, by you).
12.6.2. Data Verification. If you employ the Data Verification service, you are responsible for following Coach in the Corner’s instructions with respect to the service, including (i) acquiring a hard drive, USB drive or other suitable medium (the “Verification Harware”), (ii) creating a local backup of your data on the medium, and shipping the Verfication Hardware to the facilities of Coach in the Corner or its designee. You will pay all freight, insurance, and other shipping expenses to and from those facilities. You retain title to the Verification Hardware and data, and the risk of loss with respect to both the Verification Hardware and any data contained therein.
12.6.3. Your Conduct, Behaviour and Duties.
(a) You represent, warrant and agree that you will not, directly or indirectly: (a) falsify or misrepresent any information regarding your identity or intentions with respect to any matter in connection with Coach in the Corner Online Backup; (b) post, publish, transmit, distribute, upload, or data seed any information or materials that (i) are unlawful, obscene, lewd, sexually explicit, derogatory, abusive, threatening, discriminatory with respect to race, religion or gender, or is otherwise reasonably disagreeable, offensive or objectionable; (ii) contain a virus, or any other harmful software code or programming routine, that could impair operation or function of Coach in the Corner Online Backup or access of others who access, browse or use Coach in the Corner Online Backup; (iii) is (in whole or part) false, deceptive, misleading, fraudulent, or otherwise disagreeable, offensive or objectionable, including (without limitation) any information, document, communication or transmission that constitutes, affirms, encourages or supports the commission of any illegal activity or any violation of any local, state, national or applicable foreign law, rule or regulation, including (without limitation) any laws that protect the intellectual property, personal or privacy rights of any person or entity; (iv) infringes any patent, copyright, trademark, trade secret right or any other proprietary intellectual property rights of a Third party; (v) violates any legal, property, intangible, confidentiality or privacy rights of others; and (vi) solicitations, advertisements, pyramid schemes or any other unsolicited communication, including.
(b) You must not violate or attempt to violate the security of Coach in the Corner Online Backup, or any third party network, system, server, or account, including, without limitation, engaging in any of the following activities: (a) accessing data, folders, information, content, materials, servers, accounts, databases, etc. which you are not authorized to access, (b) impersonating Coach in the Corner personnel (or any other person or entity) or engaging in any other pre-texting, (c) attempting to (i) probe, scan or test the vulnerability of a system, server, account or network, or (ii) breach security, validation or authentication measures of any of the foregoing, (d) attempting to interfere with, disrupt or disable service or access or use of Coach in the Corner Online Backup to or for any user, host, server, account or network, including, without limitation, via means of overloading, "flooding", "mailbombing", "denial of service" attacks, or "crashing", (e) forging any TCP/IP packet header or any part of the header information in any e-mail or posting, (f) taking any action in order to obtain services to which you are not entitled, or (g) attempting to utilize another party's account name or persona without first obtaining authorization from that party. You are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for Coach in the Corner Online Backup for any User. Violations of these policies and Coach in the Corner Online Backup's security may result in civil or criminal liability for the offending party.
12.6.4. Suspension of Service. Coach in the Corner may suspend or discontinue (in whole or in part) Coach in the Corner Online Backup or your access to or use of Coach in the Corner Online Backup at any time for any reason (or no reason) without 5 days’ prior notice and without any liability whatsoever to you or to any Third Party (provided, that if Coach in the Corner temporarily suspends Coach in the Corner Online Backup or your use of Coach in the Corner Online Backup, without cause or reason, you will not be charged for the period during which you are not allowed to access Coach in the Corner Online Backup through no fault of your own), and if Coach in the Corner discontinues Coach in the Corner Online Backup or your use of Coach in the Corner Online Backup, Coach in the Corner, in its sole discretion either (a) grant a license for a substantially similar product for the remainder of the Subscription Period.
12.6.5. Disclaimers and Limitations. Without limiting the other provisions of this Agreement:
(a) Coach in the Corner ONLINE BACKUP IS PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. WITHOUT LIMITING THE FOREGOING, Coach in the Corner HEREBY DISCLAIMS ANY WARRANTY THAT Coach in the Corner ONLINE BACKUP CONFORMS TO, OR SATISFIES, THE APPLICABLE REQUIREMENTS OF THE SARBANES-OXLEY ACT OF 2002 (AS AMENDED), THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) (AS AMENDED), THE GRAMM-LEACH-BLILEY ACT (AS AMENDED) OR OTHER LAWS, RULES AND REGULATIONS.
(b) IN NO EVENT, AND UNDER NO CIRCUMSTANCES, WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL Coach in the Corner OR ITS SUPPLIERS BE LIABLE (EVEN IF THEY KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY LOSS OF DATA OR OF SEEDING HARDWARE; OR (2) ANY DAMAGE TO DATA OR SEEDING HARDWARE.
12.7. Allocation of Client Licenses.
The terms of this 12.7 apply where the Applicable Conditions authorize you to use Allocation of Client Licenses in providing Managed Services to Third Parties.
12.7.1. Additional Definitions.
Coach in the Corner Proxy Service means Coach in the Corner Proxy Services as the context requires.
Customer means a Third Party to whom you provide or wish to provide Coach in the Corner Services
Help Desk Services means the helpdesk services Coach in the Corner or its Third-Party supplier provides to you for the benefit of one or more Customers, in each case as described on the Coach in the Corner Portal, and as Coach in the Corner may modify the same from time to time.
Territory means the geographic area specified by the Applicable Conditions.
System Monitoring means Coach in the Corner System monitoring and management services Coach in the Corner or its Third-Party supplier provides to you for the benefit of one or more Customers, in each case as, and as Coach in the Corner may modify the same from time to time.
Service Agreement means an agreement between you and a customer that, among other things, clearly describes the Services that you have agreed to provide the Customer and how you intend to comply and in fact comply with applicable Privacy Laws.
12.7.2. License Grant. Coach in the Corner, subject to Section 2 and the other provisions of this Agreement, grants you a limited, non-exclusive, non-transferable license during the Subscription Period (with no rights to sublicense) in the Territory to use the Software to provide Coach in the Corner Proxy Services to the number of Customers how are your direct clients.
12.7.3. Coach in the Corner Services. Coach in the Corner, subject to the terms and conditions of this Agreement, will provide you with Services, including as applicable Coach in the Corner Support and Coach in the Corner Help Desk Services, during your respective Subscription Period. You are liable to provide help to your clients and in no way will Coach in the Corner nor their suppliers, staff, directors or shareholders be responsible nor liable for support nor the support you may render to your clients.
12.7.4. Your Obligations. You, subject to the terms and conditions of this Agreement, will:
(a) Ensure at all times that you have in effect Applicable Conditions sufficient to cover the then-current use of the Software and Services by Customers and yourself and, at Coach in the Corner’s reasonable request from time to time, certify to Coach in the Corner that you have fulfilled and continue to fulfil your obligations under this Section 12.7.4(a).
(b) Require that
(i) each Customer (including you, to the extent applicable) receiving Software execute or otherwise bind itself to the then-current version of this EULA,
(ii) each Customer to whom you have agreed to provide Services execute or otherwise bind itself to a Service Agreement. Without limiting the foregoing, you may accept the EULAs on the Customer’s behalf only to the extent the Customer has expressly authorized you to do so in the Services Agreement or otherwise. The Service Agreement will
(a) contain provisions at least as protective of Coach in the Corner’s interests as Sections 6, 7 and 8 of this Agreement and, if Services include Coach in the Corner Online Backup, Section 12.6 of this Agreement and
(b) expressly authorize you and Coach in the Corner to reproduce, transmit, store and process the Customer’s data and information in the performance of Services.
(c) As between Coach in the Corner and you, be solely responsible for
(i) performing your obligations under the Service Agreement,
(ii) ensuring that you and all Customers comply with all applicable Laws concerning the monitoring of employees and other Third Parties and their respective Devices,
(iii) performing the tasks and obligation assigned to it by each Order, and
(iv) at the end of the applicable Subscription Period, terminating Services and removing or causing the Customer to remove any Software from any Devices on which it is installed.
(d) At mutually agreeable times
(i) during the Term make your sales personnel available for sales training relating to the Software and,
(ii) during the Term,
(a) make your technical personnel available for training in the installation and support of the Software, and
(b) make your training personnel available for “train the trainer” classes. Except as the Parties otherwise agree, all such training will be conducted in English over the Internet.
(e) During the Term and for three years thereafter, maintain complete and accurate records concerning use of the Software. No more than once in any twelve-month period, Coach in the Corner or its representative may audit your records for the sole purpose of confirming your compliance with this Agreement. Any such audit will be conducted during regular business hours at your offices and shall not interfere unreasonably with your business activities. Should such audit reveal unlicensed usage, Coach in the Corner may charge you for all such unlicensed usage at the rate of 120% of Coach in the Corner’s then-current pricing.
12.7.5. Compliance With Laws and Policies.
(a) You shall, at your own expense, comply with all Laws which apply to, or result from, its obligations under this Agreement, including without limitation applicable Laws relating to data privacy and security.
(b) You shall exercise due diligence in selecting your employees, agents and officers and will provide appropriate training for them and will monitor their activities to ensure compliance with this Agreement and all applicable Laws.
(c) You hereby confirm, acknowledge
and agree that your owners, directors, officers, employees and agents have not,
and will not, make or promise to make payments of money or provide anything of
value, directly or indirectly, to any Governmental Authority or public
officials, political parties, or candidates for political office, for the
purpose of obtaining or retaining business or securing any improper advantage,
or to any other person or entity if such payment would violate applicable Laws.