Software License Agreement

Standard terms

1. Definitions
a. “The platform”, “ Service” or “Software” is the franchise management platform developed by Us
b. “Contract” or “Agreement” means this Agreement
c. “Effective Date” means the date this agreement is signed
d. “You” and “Your” refers to the User or individual Company accessing the Service and include your staff and or agents or subcontractors
e. “We”, “Us” or “Our” refers to Franchise Cloud Solutions Pty Ltd
f. “Franchisor data” refers to all data necessary to set up, configure and use the system provided by you.

2. General
a. This agreement represents the entire agreement between the parties and supersedes all prior agreements, understandings, whether written or oral, relating to your use of The Service
b. This Agreement sets out the terms upon which We will provide the Service and the terms upon which You will use the Service. By accessing the Service you:
i. accept the terms and conditions set out in this Agreement
ii. agree to be bound by these terms and conditions including the End User License Agreement (EULA)
iii. agree to fulfil your obligations of the Agreement
iv. acknowledge that you are duly authorized to enter into this Agreement whether as an individual or as a representative of an organization
c. If you do not agree to the terms of this Agreement, do not use The Platform, Software or Service.

3. Term
a. The Contract shall be for an initial term of 12 months “Initial Term”
b. Unless terminated in accordance with This Agreement, The Contract will automatically renew for a subsequent term “Renewal Term”, equal in duration to the Initial Term
c. Any renewal of the contract will be on the same terms as this Contract, including the same automatic renewal provision
d. Both the Initial Term and any Renewal Term are collectively referred to as “The Term”.

4. Termination
a. Either party may terminate this agreement at any time by providing 30 days written notice to the other party.
b. Written notice should be sent Us at hello@franchisecloudsolutions.com or to You at your nominated contacts email address.
c. Either party may terminate this agreement at any time with immediate effect by notice in writing to the other party on or any time after the occurrence of any of the following events:
i. the Defaulting Party goes into liquidation either compulsorily or (except for the purpose of reconstruction or amalgamation) voluntarily;
ii. a receiver is appointed in respect of the whole or any part of the assets of the Defaulting Party;
iii. the Defaulting Party threatens to do any of the things listed in this clause (4c) or an administration order is made against the Defaulting Party or any similar occurrence under the laws of any jurisdiction affects the Defaulting Party.
d. Without prejudice to any other rights, We may terminate this Agreement at any time with 14 days notice in writing to you if:
i. You fail to comply with the terms and conditions of this Agreement and do not remedy the breach within the notice period;
ii. if you, or your employees or agents, do anything (or allow anything to be done) that damages or affects the operation of the Service or circumvent licensing of The Software which includes sharing of user logins and You understand and agree to your obligations as outlined at 8b;
e. In such event, We will cease providing the Service after 14 days notice. We will not be responsible for any loss incurred whilst you identify and transition onto a new Service with an alternative provider and we are under no obligation to continue to provide you with The Platform or Service whilst you identify and transition to an alternative provider
f. Prior to termination of this agreement You are responsible to take backups of all necessary data within The Platform that you require. We are not obligated to retain any Franchisor data of any kind after termination of this agreement.

5. Payment of License and Support fees
a. You agree to pay Us any Software License or Support fees (“Fees”) as per our Proposal to you or as outlined within this Agreement
b. License and Support fees are based on the number of Active Users and features accessed by You in the Software at the time of billing or that were Active during the billing cycle;
c. Additional licenses can be added upon request and will be charged on a pro-rata basis calculated on the current remaining Term. Licenses are transferable from ceased Users to new active Users;
d. Each additional license purchased will form part of this Agreement;
e. We reserve the right to increase or license fees at the point of renewal, but the increase will not be unreasonable and will be provided to the client prior to the renewal date.

6. Payment terms
a. Payment terms are strictly 7 days from invoice date unless agreed otherwise.

7. Non-payment
a. If you do not pay your Fees, and you do not remedy this within 14 days of the due date after written warning, in the event that we are not paid in accordance with these terms, in addition to any other action we may take under this Agreement (including, without limitation, the suspension, disconnection or termination of your access to use the Service or the receipt of support from us), we may charge interest calculated at the current Cash Rate Target set by the Reserve Bank of Australia plus 2.5% p.a. The rate will be disclosed on the invoice of the overdue amount on any overdue amount of any invoice.
b. We may also recover from you all legal and other costs incurred by us, arising from the collection of any overdue amount.

8. Client Agrees & is responsible for
a. Providing all necessary Franchisor data in the format specified by Us ready for loading into the Software without the need for manipulation unless such manipulation is agreed to by Us in writing;
b. Ensuring user Licenses are allocated to named Users/individuals and not shared by multiple users; the Client understands and agrees that Our main source of revenue is from Software Licensing and sharing of logins jeopardizes our long-term ability to support and maintain the Software;
c. Ensuring Username and Passwords are protected and not shared between Users or with any Third party as that will undermine the security of The Platform;
d. Complying with Salesforce.com authentication and security best practices described in the Salesforce.com documentation referenced in Clause 18 and additional guidance, notes and recommendations issued by Salesforce.com from time to time;
e. The previous clause includes but is not limited to: deploying Salesforce’s recommended Multi-factor Authentication (MFA); ensuring each user account is used by a single natural person; ensuring User credentials are never shared with other Users or Third Parties; preserving the privacy of authentication secrets including but not limited to passwords.
f. You are responsible for any and all costs associated with:
i. Level 1 & 2 end Franchisor user and Franchisee user support
ii. Training its staff & Franchisees to use The Service
iii. Testing of all upgrades to ensure they are backward compatible with custom features.

9. We agree and are responsible for
a. Provision of The Platform, Service and Support according to the agreed timeframes of the project;
b. Provision of Level 3 support to Your nominated point of contacts;
c. Rectification of mutually agreed latent defects at our cost, as identified by Us;
d. Consideration of mutually agreed future enhancements to be delivered and funded as agreed between the parties from time to time.

10. Availability and Maintenance
a. You expressly acknowledge that due to circumstances often beyond the control of Us, including (but not limited to) software viruses, power failure, electrical or topological interference, software malfunction, tampering by unauthorized persons and the actions and omissions by suppliers of telephone or internet services, or other third parties the Service may not operate as designed
b. While we will endeavour to ensure that the Software and Service will be available for use, we do not warrant that the Software or Service will be available at all times or at any specific times; nor will it be error free;
c. System maintenance is carried out on a regular basis and you or your nominated representative will be notified via email or internal system message where we believe there to be a potential impact to You;
d. During periods of system maintenance the Software and System is not available for use;
e. There may be times when we require you to upgrade to a later version of the Software to address known issues or to benefit from feature releases or updates; your Software License covers the cost of this upgrade however You agree and understand the cost of performing the upgrade is not included in support however you can request Our assistance to upgrade your Software, billed at our current Admin as a Service hourly rate; You also acknowledge it is your responsibility to test all custom features against these upgrades for compatibility; A Sandbox environment will be provided to you that replicates your Production environment; Testing will be carried out in the Sandbox to ensure any issues can be found without affecting the Production environment; You will be required to test your business processes and ensure there are no breaking changes to your functionality; Upgrades will not be installed into your Production environment until they pass testing and you approve the installation.

11. Support
a. We will provide support for the Software and Service to you in accordance with the terms of this Agreement. Support is provided during normal working hours (8.30am – 5pm) AEST, Monday to Friday, excluding public holidays.
b. All support requests must be logged via the Service Desk and these will be resolved on a ‘best efforts and as soon as possible basis’ but we do not warrant that any support request will be resolved within a particular time frame; we endeavour to resolve them in a reasonable time frame;
c. Included Support that is covered by license fees includes receiving and addressing known defects; and the provision of online knowledge tools for You to refer to during your use of the Software;
d. Paid Support is available for items that do not fall under the above categories. Details of the Admin as a Service offering can be found here – Franchise Cloud Solutions – Admin as a Service (May 2024).

12. Marketing
a. Each party may include the other party’s name or logo in a list of its clients, vendors, or service providers
b. Each party may make reference to the other in an initial press release, provided that any use of the other party’s trade mark(s) retain proprietary notices and/or are properly attributed to their owner and also provided that any such press release will require the review and prior written consent of both parties, which shall not be unreasonably withheld, conditioned, or delayed
c. You agree (with reasonable right to refuse) to:
i. allow us to include a brief description of the services furnished to you in our promotional materials, and
ii. allow us to make reference to you in case studies, ROI analyses, white papers and related marketing materials, and
iii. serve as a reference for our potential clients, and provide interviews to the news media.

13. Amendments to this agreement
a. We reserve the right to amend the terms of this Agreement from time to time by mutual agreement. This right will be exercised reasonably and limited to matters that are non-material in nature.
b. Where such change is deemed by the parties to be material in nature, you will be advised, and consent sought from you, via email before any change is implemented.
c. Your continued use of the Service following your consent of any amendment, (where material in nature), will represent an agreement to be bound by the terms of this Agreement as amended.

14. Assignment
a. Either party may assign or novate their rights and obligations under this agreement with the other party’s consent, which consent will not unreasonably be withheld. Both parties agree to execute any document reasonably requested to give effect to an assignment or novation.

15. Force Majeure
a. “Force Majeure” means acts of God, war, hostilities, act of terrorism, riot, fire, explosion, accident, flood, sabotage, raw materials or labour strike, lock-out or injunction compliance with governmental laws, regulations or orders, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
b. If either party is prevented or delayed from performing any of its obligations under this Agreement by Force Majeure, then:
i. its obligations under this Agreement (or, where the Force Majeure only affects some of the Services, such obligations as relate to those Services) shall be suspended for so long as the Force Majeure continues and to the extent that that party is so prevented, hindered or delayed;
ii. the parties shall, without prejudice to the other provisions of this Clause consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure;
iii. that party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
c. If any Force Majeure prevails for a continuous period in excess of 1 month, either party shall be entitled to terminate this Agreement in its entirety (if all Services are affected by Force Majeure) or in part (insofar as it relates to the Services affected by Force Majeure) by giving not less than 1 months’ notice in writing to the other party.
d. We accept no liability for any failure to comply with this Agreement where such failure is due to circumstances beyond our reasonable control.

16. Governing law
a. If you use the Service in Australia, this Agreement is governed by the laws of the State of New South Wales. If you use the Service outside Australia, then Australian laws will still apply. In the event that this Agreement conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties, such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain valid and intact;
b. The failure of either party to assert any right under this Agreement shall not be considered a waiver of any that party’s right and that right will remain in full force and effect; You agree that without regard to any statute or contrary law that any claim or cause arising out of the use of this Software or Service must be filed within one (1) month after such claim or cause arose or the claim shall be forever barred.

17. Severability
a. Any provision found to be unenforceable by a court or tribunal will be severed from this Agreement.
b. Such severance will be as narrow as possible and may not affect the remainder of this Agreement in such action and other actions, unless the court or tribunal also finds, on the request by you that without such provision as originally written, the Agreement is not likely to meet the reasonably commercial expectations of us or you and in such case, the court or tribunal will enter an equitable judgment of rescission, termination or reformation of this Agreement as necessary to reach an equitable result.

18. Security
a. The Platform leverages Salesforce.com and all data is stored on Salesforce’s servers.
b. Salesforce.com is responsible for the security and protection of their servers. Salesforce.com guidance and disclosures regarding their safety and trust information can be found below:
i. Data privacy and security with Salesforce
ii. Salesforce.com Privacy Statement
iii. Salesforce.com Terms of Service
c. We have no control over Salesforce security outcomes, and you agree to hold us harmless in the event of any security breach.

19. Third-Party Vendors and Partnerships
a. We have integrations with third-party services, some of whom may provide commission or referral payments to Us in some circumstances.