As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” or “MSA” means this online services agreement, and any Order Forms, whether written or submitted online via the Online Order Center, and any materials available on the OnStrategy website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by OnStrategy from time to time in its sole discretion;
“Content” means the audio and visual information, documents, software, products and services contained or made available to Client in the course of using the Service;
“Client, You or Client’s” means the individual or legal entity, its directors, officers, affiliates agents, and employees, as identified in the registration and identification data provided to OnStrategy via this web site;
“Client Data” means any data, information or material provided or submitted by Client to OnStrategy in the course of utilizing the Service;
“Confidential Information” means: (a) the Software; (b) all Client data used by OnStrategy in providing the service; (c) any business or technical information of OnStrategy or Client; (d) the specific terms and pricing set forth in this Agreement; and (e) information which is not marked as “confidential” or “proprietary” which should, under the circumstances, be understood to be confidential or proprietary by a person exercising reasonable business judgment.
“Effective Date” means the date the plan account is purchased and/or the Order Form is signed or in the case of a software-only subscription, accepted by clicking the “Checkout” button presented on the screen where this Agreement is linked from;
“Subscription Service” means our strategic planning and performance management services and application;
“Initial Term” means the period during which Client is obligated to pay for the Service equal to the billing frequency selected by Client during the subscription process, i.e. if the billing frequency is annually, the Initial Term is one year;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature;
“License Term(s)” means the period(s), excluding the Initial Term, during which Users are licensed to use the Service pursuant to the Order Form(s);
“Order Form(s)” means the initial subscription for the Service and any subsequent order forms submitted online, specifying, among other things, the services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties and each such Order Form shall be incorporated into and become a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail;
“OnStrategy” means M3 Planning, Inc. a Nevada corporation, having its principal place of business at 465 Court Street, Reno, Nevada, 89501.
“OnStrategy Technology” means all of OnStrategy’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Client by OnStrategy in providing the Service;
“Service(s)” means the specific edition of OnStrategy’s service and online strategic plan identified during the ordering process, developed, operated, and maintained by OnStrategy accessible via http://www.OnStrategyHQ.com or another designated web site or IP address or ancillary services rendered to Client by OnStrategy’s, to which Client is being granted access under this Agreement, including the OnStrategy Technology and the Content;
“System Administrator(s)” means those Users designated by Client who are authorized to create User accounts and otherwise administer Client’s use of the Service;
“User(s)” means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by OnStrategy at Client’s request).
Free Trial: If Customer has registered for a trial use of the Service, Customer may access the Service for the time period specified by OnStrategy, specifically 14 days. Access to the software and evaluation of the services during this first 14 days are free on any plan and you can switch plan types during this period. If you initially sign up for a subscription and provided your credit card information and you do not cancel within 14 days, you will be billed monthly starting on the 15th day after your subscription was initially created, or annually from the date on the signed agreement. If you cancel prior to the processing of your first invoice on the 15th day, you will not be charged.Fees: The Client agrees to pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable as a consideration for the Services provided by OnStrategy. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. If Customer does not pay the amounts due within 30 days of the due date, OnStrategy may suspend or terminate the Service, or both.
Term and Renewal: Professional and Enterprise Package Agreements are for an initial term of one (1) year from the Effective Date. It will automatically renew for successive one-year terms unless either party gives the other party written notice of its intent to terminate the Agreement at least ten (10) days prior to the beginning of any renewal term.
The Subscription Service is billed in advance on a monthly or annual basis. OnStrategy will automatically renew and or generate an invoice or bill the Client’s credit card for the monthly or annual subscription based on the Client’s selected Subscription Term.
Refunds: There will be no refunds or credits for partial use of Subscription or early termination of a pre-paid agreement. In order to treat everyone equally, no exceptions will be made.Upgrade/Downgrade: For any upgrade or downgrade in plan level, you will automatically be charged the new rate on your next billing cycle. We do not prorate. Downgrading your Service may cause the loss of features of your Account. Contact OnStrategy for any changes to your account.
Payment by Credit Card: If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the Initial Subscription Term and any renewal subscription term(s), including upgrades. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
Payment by Invoice: If you are paying by invoice, we will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
Cancellation and Termination
You may provide a cancellation via email or phone to an OnStrategy Advisory at 775-747-7407. Software-only subscriptions can be cancelled through the software by clicking on the Billing & Team link in the navigation dropdown at the top of the plan screen. The Account screen provides a simple no-questions asked-cancellation link (at the bottom of the page). If you cancel the Service before the end of your current Subscription, your cancellation will take effect immediately and you will not be charged again.
Modification to Services and Pricing
Pricing of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change. Such notice may be provided by posting the changes to the OnStrategy Site (OnStrategyHQ.com) or the platform itself. Existing Client’s Subscription Fees will not be increased and will be grandfathered in at their purchase price as long as the account’s current agreement is maintained and continuous.
Software Service Level Commitment
Technical Support: System support is included in your Subscription Fee. Phone support for the Subscription Service is available 8AM to 5PM Pacific Time, Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day x 7 Days per Week. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
Availability: We try to make the Subscription Service, including the platform, mobile application and Visual Performance Dashboard, available 24 hours a day, 7 days a week, except for planned down-time for maintenance. If there is a planned upgrade or maintenance, OnStrategy will notify you well in advance. We will also notify you of the upgrade enhancements. OnStrategy’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. OnStrategy is not responsible for any delays, delivery failures, or other damage resulting from such problems. OnStrategy normally maintains a 99.4% uptime for the Subscription Service.
Mobile application: Mobile application access only available on certain devices. Usage of mobile application may result in additional data charges. Please check with your service provider.
Tracking & Data Storage
OnStrategy tracks Client usage in order to improve your experience and our level of service. No data is shared. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Client Data. You consent to the processing of Client Data in the United States.
All data submitted by Client to OnStrategy, whether posted by Client or by third parties, shall remain the sole property of Client or such third parties, as applicable, unless specifically notified in advance. Client, not OnStrategy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Client Data.
If the Client decides to terminate, the Client may download all of his data into a Word, or PDF document prior to termination. If Client cancels service, OnStrategy will retain a copy of Client’s Content for 1 year and will not destroy such data unless directed to do so by Client. If it had been cancelled and the Client then requests a copy of the Content, OnStrategy will provide the Content in a commercially usable format (Full Strategic Plan with Progress report) within 14 days of such request. If Client directs OnStrategy to delete and destroy Client’s Content, OnStrategy will do so within 14 days of such request and notify Client once the Content has been destroyed.
Security Policy and Mutual Confidentiality
OnStrategy takes all reasonable precautions to keep your information safe and secure. OnStrategy reserves the right to modify its Security Policy in its reasonable discretion from time to time. OnStrategy’s current Security Policy provides that all data sent and received is secured by a Secure Socket Layer (SSL) high-assurance certificate with 256-bit encryption, that a state-of-the-art redundant server cluster hosted and professionally managed is employed, and that regular backups are performed, including use of backups in an offsite secure location. Incremental data backup is performed every 30 minutes. Penetration tests are performed regularly. See the Security Policy at http://onstrategyhq.com/security/ for more detail. Should OnStrategy modify its Security Policy to reduce any aspect of security or data protection to any level less than that stated above, OnStrategy will provide Client with 14 days written notice.
Protection of Confidential Information. The Client must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of OnStrategy for any purpose outside the scope of this agreement. The Client must make commercially reasonable efforts to limit access to Confidential Information of OnStrategy to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Client no less restrictive than the confidentiality terms of this agreement.
Exclusions: Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
Intellectual Property Rights, Knowhow and Publicity
OnStrategy Rights: All intellectual property rights (including, but not limited to patent rights, design rights, copyrights, rights in utility models, rights in databases, trademark rights, domain names, trade names, etc.) and knowhow in the software used by OnStrategy, the Account, and as may be, the lay-out of Deliverables, shall at all times be and remain the exclusive property of OnStrategy. Except for the license to use the Account according to this MSA, no intellectual or other proprietary rights are transferred or assigned through the MSA to the Client.
Client Rights: OnStrategy grants the Client and its End User(s) a personal, worldwide, non-assignable and non-exclusive license to use the software provided to Client by OnStrategy as part of the Services. This license is for the sole purpose of enabling Client and its End User(s) to use and enjoy the benefit of the Services as provided by OnStrategy, in the manner permitted by this MSA.
API: OnStrategy provides access to its API as part of the Service for no additional fee. Subject to the other terms of this Agreement, OnStrategy grants Customer a non-exclusive, nontransferable, revocable license to interact with the API only for purposes of interacting with the Service as allowed by the API.
Customer may not use the API in a manner, as reasonably determined by OnStrategy, that exceeds reasonable request volume or constitutes excessive or abusive usage. If any of these occur, OnStrategy can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
OnStrategy may change the API or remove existing endpoints or fields in API results upon at least 30 days’ notice to Customer, but OnStrategy will use commercially reasonable efforts to support the previous version of the API for at least 6 months. OnStrategy may add new endpoints or fields in API results without prior notice to Customer.
The API is provided on an ‘AS IS’ and ‘WHEN AVAILABLE’ basis. OnStrategy has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
OnStrategy may use without Client’s express written consent Client’s name, logo and related trademarks in any of our marketing for the promotional purpose of highlighting that you use OnStrategy Services. If Client does not want OnStrategy to use this information, please contact OnStrategy.
You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your internal business use. Unauthorized use, resale or commercial exploitation of the Service and/or the Content in any way is expressly prohibited. You agree not to reverse engineer the Service, or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service. You shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Content to any third-party, or (iv) modify or make derivative works based upon the OnStrategy or the Content; (v) commercially exploit the Service or the Content in any way, or (vi) “frame” or “mirror” any Content contained in, or accessible from, the Service on any other server, wireless or Internet-based device. All rights not expressly granted to Client are reserved by OnStrategy and its licensors.
Client shall indemnify and hold OnStrategy’s, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Client of the representations and warranties; or (iii) a claim arising from the breach by Client or Users of this Agreement, provided in any such case that OnStrategy (i) gives written notice of the claim promptly to Client (ii) gives Client sole control of the defense and settlement of the claim (provided that Client may not settle or defend any claim unless it unconditionally releases OnStrategy of all liability and such settlement does not affect OnStrategy’s business or Service); (iii) provides to Client all available information and assistance; and (iv) has not compromised or settled such claim.
OnStrategy shall indemnify and hold Client and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party; (ii) a claim, which if true, would constitute a violation of OnStrategy of the representations or warranties; or (iii) a claim arising from breach of this Agreement by OnStrategy; provided that Client (i) promptly gives written notice of the claim to OnStrategy’s; (ii) gives OnStrategy sole control of the defense and settlement of the claim (provided that OnStrategy may not settle or defend any claim unless it unconditionally releases Client of all liability); (iii) provides to OnStrategy all available information and assistance; and (iv) has not compromised or settled such claim. OnStrategy shall have no indemnification obligation, and Client shall indemnify OnStrategy pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Client’s products, service, hardware or business process(es).
In particular, and without prejudice to the generality of the limitation of liability as mentioned herein, no guarantee is given by OnStrategy for i) the correctness and accuracy of the Content and the Deliverables that can be consulted through the Account, ii) an unrestricted use of the Deliverables in the Account and the Content, and iii) an uninterrupted use of the Account and the Content.
Representation & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. OnStrategy represents and warrants that it will provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Software will perform substantially in accordance with the online OnStrategy help documentation under normal use and circumstances. Client represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that Client’s billing information is correct.
Disclaimer of Warranties
OnStrategy ensures that it will perform the Services under this MSA to the best of its ability, without any warranties as to the results of such Services. OnStrategy and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content; OnStrategy and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet Client’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by Client through the service will meet Client’s requirements or expectations, (e) existing features of the product will be modified to meet Client’s requests or needs, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components;(iii) the service and all content is provided to Client strictly on an “as is” basis; and (iv) all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by OnStrategy and its licensors.
The OnStrategy Service is hosted in the United States. If you use the OnStrategy Service from outside of the United States, you acknowledge that you are voluntarily transferring information (potentially including personally-identifiable information) and Content to the United States and agree that OnStrategy’s collection, storage and reporting of your information and Content is exclusively subject to the laws of the United States, not of the jurisdiction in which you are located. You will comply with all United States laws, rules and regulations applicable to the export of products, services, software and technical data regardless of the jurisdiction in which you are located.
Export Control: Each party must comply with the export control laws of the United States and other applicable countries.
Limitation of Liability
In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from Client in the twelve (12)-month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Client.
With respect to all Clients, this MSA shall be governed by Nevada law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Reno, Nevada. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Client and OnStrategy as a result of this agreement or use of the Service. The failure of OnStrategy to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by OnStrategy in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Client and OnStrategy and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@OnStrategyHQ.com.
Last updated: August 11, 2016
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