SERVICES/SAAS AGREEMENT (SSA)

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.

This agreement is between M3Planning, Inc. dba OnStrategy, a Nevada corporation (OnStrategy), and the Customer agreeing to these terms (Customer), effective as of the date of the last signature below.

  1. SERVICES.
  2. This agreement provides Customer with consulting, implementation and onboarding services (Implementation Services) as specified on a Service Agreement (SA), and access to and usage, if applicable, of an Internet-based software service, including, without limitation, its features, functions, and user interface (SaaS Service), as specified on an order.

  3. USE OF SAAS SERVICE.
    1. Customer Owned Data. All data uploaded by Customer to the SaaS Service remains the property of Customer, as between OnStrategy and Customer (Customer Data). Customer grants OnStrategy the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the SaaS Service.
    2. Access and Usage. Customer may allow its contractors to access the SaaS Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
    3. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the SaaS Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify OnStrategy promptly of any such unauthorized access; and (iv) may use the SaaS Service only in accordance with the SaaS Service’s user guide and applicable law.
    4. OnStrategy Support. OnStrategy must provide Customer support for the SaaS Service under the terms of OnStrategy’s Customer Support Policy (Support), which is located at https://onstrategyhq.com/support/.
    5. Communications. By creating an account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
  4. WARRANTY DISCLAIMER.
  5. THE IMPLEMENTATION AND SAAS SERVICES ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY. ONSTRATEGY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ONSTRATEGY TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SAAS SERVICE, ONSTRATEGY DOES NOT GUARANTEE THAT THE SAAS SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SAAS SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

  6. PAYMENT.
  7. Customer must pay all fees as specified on the order and/or Service Agreement (SA), but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the SaaS Service, which orders are governed by the terms of this agreement.

    If Customer has registered for a trial use of the Service, Customer may access the Service for the time period specified by OnStrategy, currently 14-days. Access to the software and evaluation of the services during this first 14-days are free on any plan.

  8. MUTUAL CONFIDENTIALITY.
    1. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Customer) to the other party (OnStrategy), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). OnStrategy’s Confidential Information includes, without limitation, the SaaS Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer’s Confidential Information includes, without limitation, the Customer Data.
    2. Protection of Confidential Information. OnStrategy 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), and it may not disclose or use any Confidential Information of the Customer for any purpose outside the scope of this agreement. OnStrategy must make commercially reasonable efforts to limit access to Confidential Information of Customer to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with OnStrategy no less restrictive than the confidentiality terms of this agreement.
    3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Customer; (ii) was known to OnStrategy prior to its disclosure by the Customer without breach of any obligation owed to the Customer; (iii) is received from a third party without breach of any obligation owed to Customer; or (iv) was independently developed by OnStrategy without use or access to the Confidential Information. OnStrategy may disclose Confidential Information to the extent required by law or court order but will provide Customer with advance notice to seek a protective order.
  9. PROPERTY.
    1. Reservation of Rights. The SaaS Service, the work product produced through the Implementation Services, the Software and Documentation, and the API (Intellectual Property) are the proprietary property of OnStrategy and its licensors, and all right, title, and interest in and to the Intellectual Property, remain only with OnStrategy. Customer may not remove or modify any proprietary marking or restrictive legends in the SaaS Service or Software and Documentation. OnStrategy reserves all rights unless expressly granted in this agreement.
    2. Restrictions. Customer may not: (i) sell, resell, rent, or lease the SaaS Service or use it in a service-provider capacity; (ii) use the SaaS Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the SaaS Service; (iv) attempt to gain unauthorized access to the SaaS Service or its related systems or networks; (v) reverse engineer the SaaS Service or the Software and Documentation; or (vi) access the SaaS Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
    3. Software and Documentation. All software provided by OnStrategy as part of the SaaS Service, and the SaaS Service documentation, sample data, marketing materials, training materials, and other materials provided through the SaaS Service or by OnStrategy (Software and Documentation) are licensed to Customer as follows: OnStrategy grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use such Software in accordance with the Documentation, solely in connection with the SaaS Service.
    4. API. OnStategy provides access to its application-programming interface (API) as part of the SaaS Service for no additional fee. Subject to the other terms of this agreement, OnStrategy grants Customer a non-exclusive, nontransferable, terminable license to interact only with the SaaS Service as allowed by the API.
      1. Customer may not use the API in a manner–as reasonably determined by OnStrategy –that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, OnStrategy can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
      2. OnStrategy may change or remove existing endpoints or fields in API results upon at least 30 days’ notice to Customer, OnStrategy will use commercially reasonable efforts to support the previous version of the API for at least 6 months.
      3. OnStrategy may add new endpoints or fields in API results without prior notice to Customer.
      4. The API is provided on an AS IS basis.
      OnStrategy has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
    5. Statistical Information. OnStrategy may compile statistical information related to the performance of the SaaS Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. OnStrategy retains all intellectual property rights in such information.
  10. TERM AND TERMINATION
    1. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
    2. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
    3. Renewals: This agreement renews for an additional 1-year periods, subject to updated pricing upon notification from OnStrategy, if any, unless either party provides the other with notice of non-renewal for its convenience at least 30 days prior to renewal date.
    4. Return of Customer Data.
      1. Within 60 days after termination, upon request OnStrategy will make the SaaS Service available for Customer to export Customer Data as provided in Section 2(a).
      2. After such 60-day period, OnStrategy has no obligation to maintain the Customer Data and may destroy it.
    5. Return OnStrategy Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay OnStrategy for any unpaid amounts and destroy or return all property of OnStrategy. Upon OnStrategy’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
    6. Suspension for Violations of Law. OnStrategy may temporarily suspend the SaaS Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the SaaS Service, Customer has violated a law. OnStrategy will attempt to contact Customer in advance.
    7. Suspension for Non-Payment. OnStrategy may temporarily suspend the SaaS Service if Customer is more than 30 days late on any payment due pursuant to an order.
  11. LIABILITY LIMIT.
    1. Exclusion of Indirect Damages. OnStrategy is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
    2. Total Limit on Liability. Except for OnStrategy’s indemnification obligations in Section 9 below, OnStrategy’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
  12. INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
    1. OnStrategy will defend or settle any third-party claim against Customer to the extent that such claim alleges that OnStrategy technology used to provide the SaaS Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies OnStrategy of the claim in writing, cooperates with OnStrategy in the defense, and allows OnStrategy to solely control the defense or settlement of the claim. Costs. OnStrategy will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending itself under this indemnity, OnStrategy-negotiated settlement amounts agreed to by OnStrategy, and court-awarded damages. Process. If such a claim appears likely, then OnStrategy may modify the SaaS Service, procure the necessary rights, or replace it with the functional equivalent. If OnStrategy determines that none of these are reasonably available, then OnStrategy may terminate the SaaS Service and refund any prepaid and unused fees. Exclusions. OnStrategy has no obligation for any claim arising from: OnStrategy’s compliance with Customer’s specifications; a combination of the SaaS Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by OnStrategy. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ONSTRATEGY’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
    2. If a third party claims against OnStrategy that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, Customer will defend OnStrategy against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that OnStrategy promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
  13. GOVERNING LAW AND FORUM.
  14. This agreement is governed by the laws of the State of Nevada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Washoe County, Nevada, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

  15. OTHER TERMS.
    1. Entire Agreement and Changes. This agreement, the order and the Scope of Work constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
    2. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement, order and/or Service Agreement (SA) may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
    3. Independent Contractors. The parties are independent contractors with respect to each other.
    4. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
    5. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
    6. No Additional Terms. OnStrategy rejects additional or conflicting terms of a Customer’s form-purchasing document.
    7. Order of Precedence. If there is an inconsistency between this agreement, an order and Service Agreement (SA), the order prevails, then the Service Agreement (SA), and then this agreement.
    8. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
    9. Mobile Software. OnStrategy makes available mobile software to access the SaaS Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. OnStrategy does not warrant that the Mobile Software will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that OnStrategy may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
    10. Feedback. If Customer provides feedback or suggestions about the SaaS Service, then OnStrategy (and those it allows to use its technology) may use such information without obligation to Customer.

Last Revised [12.1.2020]

EXHIBIT A – MOBILE SOFTWARE FROM APPLE APP STORE.

The following applies to any OnStrategy Mobile Software Customer acquires from the Apple App Store (App Store Software):

  1. Acknowledgment. This agreement is between OnStrategy and Customer only, and not with Apple; and OnStrategy, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
  2. Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
  3. Maintenance and Support. OnStrategy is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. OnStrategy and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
  4. Warranty. OnStrategy is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software, if that purchase price was paid to Apple on behalf of OnStrategy to Customer. To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is OnStrategy’s sole responsibility.
  5. Product Claims. OnStrategy and Customer acknowledge that OnStrategy, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks.
  6. Intellectual Property Rights. OnStrategy and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, OnStrategy, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
  7. Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
  8. Developer Name and Address. Company’s name is M3Planning, Inc. dba OnStrategy and address is 527 Lander Street, Reno NV 89509, and the contact information (775-747-7407; hello@onstrategyhq.com) to which any Customer questions, complaints, or claims should be directed.
  9. Third-Party Terms of Agreement. Customer must comply with applicable third-party terms of use when using the App Store Software (e.g., the App Store Software is a VoIP application, then Customer must not be in violation of its wireless data service agreement when using the App Store Software).
  10. Third-Party Beneficiary. OnStrategy and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.

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