Terms and Conditions

This Resource Optimizer Master Subscription Agreement (“Agreement”) is between Resource Optimizer Pty Ltd and that has purchased a subscription to the Service (“Customer”). If you are an individual using the Service on behalf of a corporation, partnership, or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement. Each of Resource Optimizer and Customer is a “Party” and together they are the “Parties.”

Customers are responsible for maintaining active licenses and complying with all applicable agreements for all Connected Services and Workflow Environments.

From time to time, Resource Optimizer may modify this Agreement. Unless otherwise specified by Resource Optimizer, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. Customer may be required to click to accept the modified Agreement before using the Resource Optimizer Service in a Renewal Subscription Term, and in any event, continued use of the Service during the Renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the Renewal Subscription Term begins.Provision of Service: The Service is provided by Resource Optimizer on a subscription basis for a set term designated herein or in the applicable Order Form. The Service is delivered to Customer as software to be installed on Customer’s designated cloud server.

Trial Access: If Resource Optimizer has made available to Customer free, trial, or evaluation access to the Service (“Trial Access”), such access is limited to evaluating the Service to determine whether to purchase a subscription from Resource Optimizer. Customer may not use Trial Access for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. Resource Optimizer has the right to terminate Trial Access at any time. Unless Customer purchases a subscription for the Service, upon any such termination or expiration Customer’s Trial Access will cease. If Customer purchases a subscription to the Service, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, RESOURCE OPTIMIZER WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL ACCESS.

License terms: Resource Optimizer owns all rights, title and interest in and to the Service. Resource Optimizer hereby grants Customer a non-exclusive, non- transferable, right to access and use the Service, solely for its own internal business purposes during the Subscription Term, subject to the terms and conditions of this Agreement and any restrictions and limitations designated in the applicable Order Form. Subject to the limited rights expressly granted hereunder, Resource Optimizer reserves all rights, title, and interest in and to the Service, including all related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein

Restrictions: Customer must not (a) modify, copy or create any derivative works based on the Service; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, offer in a Service bureau, or otherwise make the Service available to any third party; (c) frame or mirror any content forming part of the Service, other than on Customer’s own intranet for Customer internal business purposes as permitted in this Agreement; (d) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use the Service to store or transmit Harmful Code, (f) interfere with or disrupt the integrity or performance of the Service, (g) attempt to gain unauthorized access to the Service or its related systems or networks, (h) permit direct or indirect access to or use of the Service in a way that circumvents the Purchased Volumes or any other applicable contractual usage limit, (i) reverse engineer or decompile any portion of the Service, including but not limited to, any software utilized by Resource Optimizer in the provision of the Service, except to the extent required by applicable law; (j) access the Service in order to build any commercially available product or Service or otherwise commercially exploit the Service;

Indemnification by Customer: Customer will defend, indemnify, and hold Resource Optimizer harmless from any Claims made or brought by a third party: (i) based upon breach of this Agreement by Customer, its employees and users resulting in the unauthorized disclosure of Confidential Information; (ii) alleging that the Customer data or business information infringes the rights of, or has caused harm to a third party; or (iii) in connection with a claim arising from use of the Service in breach of this Agreement by Customer or Users; provided, however, that Resource Optimizer: (a) promptly gives written notice of the Claim to Customer; (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Resource Optimizer of all liability); and (c) provides to Customer, at Customer cost, all reasonable assistance.

Customer Responsibilities: Customer will use the Service solely for its internal business purposes and not for the benefit of any third parties. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality, appropriateness, and legality of any Customer data or other business information (“Customer Content”) used in the Service,(c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify Resource Optimizer promptly of any such unauthorized access or use, and (d) use the Service only in accordance with the terms of this Agreement and applicable laws and government regulations.

Customer Content: Customer’s use of the Resource Optimizer Service may result in Customer directing transmission of Customer Content outside Customer’s Salesforce Organization or other Workflow Environments, and/or to unaffiliated third parties or third-party applications, in each case because of Customer’s configuration of the Service. Upon such transmission of Customer Content by Customer, Resource Optimizer shall not be responsible for the privacy, security, or integrity thereof. Resource Optimizer will not use or disclose Customer Content except solely in connection with processing such data in the normal course of Customer’s use of the Resource Optimizer Service as otherwise provided for in this Agreement or as required by law. Resource Optimizer shall not be responsible or liable for the failure to store, deletion, correction, destruction, damage, or loss of any Customer Content.

Resource Optimizer: The Resource Optimizer Services are provided as a managed package for the Customer’s Salesforce Organization. Salesforce.com is a third-party service provider and Resource Optimizer makes no representations or warranties regarding the functionality, operability, or Customer’s access to Salesforce.com. Customer’s access to the Resource Optimizer Service is subject to the availability of Customer’s Salesforce Organization and proper performance of the Customer’s obligations to Salesforce.com. Should Customer’s access to its Salesforce Organization be suspended due to non- payment of any amounts owed to Salesforce.com by Customer or a breach of Customer’s agreement with Salesforce.com, Customer’s access to its Resource Optimizer Service shall also be accordingly suspended or terminated. Resource Optimizer shall not be liable to Customer for any refund or damages arising out of such suspension or termination. Resource Optimizer shall not be liable for performance issues or downtime of the Resource Optimizer Service to the extent caused by Salesforce.com or other factors outside Resource Optimizer control. Any unauthorized access to the Resource Optimizer Service or other abuse or impermissible activity in connection with the Resource Optimizer Service may result in immediate suspension or termination of Customer’s access to the Resource Optimizer Service pursuant to Section 8 of the Agreement.

Billing and Payment: Fees for the Service will be invoiced in accordance with the relevant Order Form. The first year’s Fees, as specified in each Order Form, are due and payable upon Customer’s execution of such Order Form. All other Fees due hereunder (except fees subject to good faith dispute) will be due and payable within thirty (30) days of invoice date. Customers will provide Resource Optimizer with complete and accurate billing and contact information.

Prices: Resource Optimizer reserves the right to change the price of the Services once per calendar year. For a price change of more than 3% to be valid, Resource Optimizer must give notification of the change at least six (3) months in advance.

Support: During the Subscription Term, Resource Optimizer will provide Support in accordance with the Resource Optimizer Subscription Support Policy, available at https://resourceoptimizerapp.com/legal and the applicable Support Documentation. Support is subject to the terms of this Agreement, the Order Form, and the Resource Optimizer Subscription Support Policy.

Term and Termination: This Agreement will commence on the Effective Date and continue for a period of twelve (12) months (the “Initial Subscription Term”), and will automatically renew at the end of the Initial Subscription Term (or any renewal term) for a period of one year (each, a “Renewal Subscription Term” and, together with the Initial Subscription Term, the “Subscription Term”) unless either Party provides written notice to the other of non-renewal at least thirty(30) days before the end of the Initial Subscription Term or any Renewal Subscription Term. Any such renewal will be at the list price in effect at the time of such renewal. Either Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party.

Modifying Features: Resource Optimizer may at its sole discretion modify the features of any Resource Optimizer applications from time to time without prior notice.

Choice of Law: This Agreement shall be governed by the laws of the state of New South Wales, Australia without regard to its conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Sydney, New South Wales, Australia for the purposes of adjudicating any dispute arising out of this Agreement. Each party hereto expressly consents to service of process by registered mail. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s intellectual property rights.

DEFINITIONS

  • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • “Customer” means the entity listed in the Order Form.
  • “Documentation” means Resource Optimizer online user guides, documentation, help and training materials, and the Customer Use Policy, as updated from time to time, accessible via, https://resourceoptimizerapp.com/legal
  • “Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents, and other proprietary rights issued, honored, or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
  • “Order Form” means the Resource Optimizer Order Form for the Service executed by the Customer.
  • “Salesforce Organization” means the virtual space provided to an individual Customer of Salesforce.com.
  • “Purchased Volumes” means the applicable license limits set forth in the Order Form.
  • “Service” means the products and services purchased by Customer pursuant to the Order Form(s) and made available by Resource Optimizer subject to this Agreement.
  • “Subscription Term” means the set term designated herein or in the applicable Order Form.
  • “Support” means the support, assurance, new releases, and related maintenance services for the Service described in the Support Documentation and includes the Support Documentation and all other associated Material provided by Resource Optimizer in relation to that support. “Material” means material in any form, including online, including documents, reports, products, information, data, source code, and methodologies.
  • “Support Documentation” means any documentation provided by Resource Optimizer that is incorporated in or associated with Support.
  • “Users” means the individuals who are authorized by the Customer to have access to the Service.