TERMS OF SERVICE

By using the SPEAR Application Service, you agree to be bound by these terms of service between Company and Cipher Business Solutions, LLC (“Cipher”).

 

  1.           Description of the Service. The SPEAR Application service (the “Service“), as further described at cipherbsc.com, (the “Site“), provides Company a framework to perform Enterprise Performance Management. The company can publish their corporate strategy and show how it cascades to the different levels of the organization. They can set strategic goals. monitor the performance, take the necessary actions and align resources accordingly. The Service is accessible through the Site and includes the software and SAP required services.
  2.           Subscription to the Service. Subject to Company’s compliance with this Agreement, and payment of applicable fees, Cipher hereby grants Company and Company’s End Users a worldwide, non-exclusive, non-transferable, non-sublicensable, and fully revocable right to access and use the Service during the Term (defined below) for Company’s internal business purposes only. Company’s subscription to the Service is limited to the number of End Users designated in the Order Form.  “End Users” means employees and independent contractors that Company has authorized to access the Service via Company’s employee Account interface. “Order Form” means Cipher’s then current order form that Company enters into with Cipher prior to registering for the Service.
  3.           Restrictions on Use. Company must not, and shall not allow any permitted End User to: (i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (ii) allow any third party to use the Service; (iii) use the Service to process data on behalf of any third party; (iv) give, sell, rent, lease, timeshare, outsource, sublicense, disclose, publish, assign, market, resell, transfer or distribute any portion of the Service to any third party, including, but not limited to Company’s affiliates, or use the Service in any service bureau arrangement; (v) reverse engineer, decompile or disassemble the Service or any components thereof, except to the extent such acts are required to be permitted by applicable law; (vi) disclose or publish the results of any benchmark tests run on the Service; (vii) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (viii) take any action that imposes or may impose (at Cipher’s sole discretion) an unreasonable or disproportionately large load on the Cipher infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (x) modify, translate, patch, alter, change or create any derivative works of the Service, or any part thereof; (xi) disclose Company’s Account (defined below) user names or passwords to any third party; (xii) remove, deface, obscure, or alter Cipher’s or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos with the Service differing from Cipher’s own without Cipher’s prior written approval; and/or (xiii) use the Service in any unlawful manner or in breach of this Agreement..
  4. The Service (and all parts thereof), all reproductions, corrections, modifications, enhancements and improvements thereto, and all data related Company’s usage thereof, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Cipher or its licensors.  Any rights therein not explicitly granted to Company hereunder, are reserved to and shall remain solely and exclusively proprietary to Cipher (or its third party licensors).
  5. The Service is provided for the subscription period designated in the Order Form (“Subscription Period“). This Agreement shall become effective on the Effective Date, and shall continue until expiration of the Subscription Period (the “Initial Term“), unless terminated earlier as provided in this Agreement. This Agreement shall automatically renew for successive Subscription Periods (each a “Renewal Term”) unless either party provides the other with at least thirty (30) days written notice prior to the end of the then-current Subscription Period of its intent not to renew.  The Initial Term, together with any Renewal Terms, will be referred to collectively as the “Term“.
  6.           Termination for Cause.  Either party may terminate this Agreement upon written notice in the event that the other party materially breaches this Agreement and, to the extent that the breach can be cured, fails to cure that breach within thirty (30) days of said notice.
  7.           Rights and Obligations upon Expiration or Termination; Survival.

7.1.         Upon expiration or termination of this Agreement, (i) Company and Company’s End Users rights to access and use the Service will immediately terminate; (ii) Company and Company’s End Users will immediately cease all use of the Service; and (iii) each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.  For a period of forty-five (45) days from the effective date of expiration or termination of this Agreement we will provide Company, upon Company’s written request, with a reasonable opportunity to download Company’s Data at a time nominated by us. We reserve the right to permanently delete from our (or our third party service provider’s) servers any Data that may be contained in Company’s Account at any time following said forty-five (45) day period. We do not accept any liability for any deactivation of the Service or Data that is deleted in connection thereto. .

7.2.         For the avoidance of doubt, expiration or termination of this Agreement for any reason shall not relieve Company from Company’s obligation to pay Cipher any outstanding payments due under this Agreement and/or Order Form and Cipher has the right to issue an invoice to Company for any such outstanding payments.  If either party terminates this Agreement for cause pursuant to Section 8 herein, Company will remain liable for payment of the entire subscription fee described in the applicable Order Form for the Initial Term or the applicable Renewal Term, as applicable; provided however, if Company terminates this Agreement for cause pursuant to Section 8 herein due to Cipher’s intentional or willful breach of this Agreement, then Company will be liable only for a prorated amount of the subscription fee described in the applicable Order Form directly attributable to Company’s access to the Services prior to the effective date of termination.

  1. Fees

8.1.  In consideration for Cipher providing the Services, Company will pay to Cipher the fees set forth in the Order Form, in accordance with the terms set forth in this Agreement, the Order Form.

8.2.  All fees shall be paid in US Dollars, and are exclusive of all taxes, levies, duties, tariffs, and other governmental charges (including without limitation, VAT) (collectively, “Taxes”).  Company will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Cipher’s net income. Overdue payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law.

8.3.  Unless stated otherwise in an Order Form, Cipher will invoice Company annually in advance for all subscription fees, as well as for the onboarding and implementation fees and applicable Taxes.  Each invoice is due and payable fifteen (15) days following the invoice date.  Customer will reimburse Cipher for the reasonable costs of collection, including fees and expenses of attorneys.

  1.         CONFIDENTIALITY

9.1.  “Confidential Information” means any information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.  Data is considered to be Company’s Confidential Information, the Services are Cipher’s Confidential Information, and the terms of this Agreement constitute Confidential Information of both Company and Cipher.

9.2.      The use and nondisclosure obligations and restrictions will not apply to any information that: (i) is or becomes generally known to the public through no breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.

9.3.  A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section.  Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care.  The provisions of this Section will remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement.

  1.         Warranty and Disclaimer.

10.1.  Each party represents and warrants that: (a) it has full power to enter into this Agreement and to grant to the other party the rights granted to such other party under this Agreement; (b) it has obtained all necessary corporate approvals to enter into and execute this Agreement; and (c) its entering into this Agreement and performance of obligations under this Agreement will not in any way conflict or violate any duty that it may have to any other person or entity, or under any agreement and/or commitment on its part.

10.2.  Cipher warrants that Cipher’s delivery of the Service will meet the requirements set forth in the Service documentation.

10.3.  Except for as expressly provided in this Agreement, the Service is provided on an “as is” and “as available” basis, and without warranties of any kind either express or implied. Company assumes all responsibility for the selection of the Service to achieve Company’s intended results. CIPHER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CIPHER DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. CIPHER DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY INFORMATION, RESULTS, OR ADVICE THAT COMPANY OBTAINS THROUGH THE SERVICE. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.

  1.         Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CIPHER FOR ANY DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICE EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY AND COLLECTED BY CIPHER FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM.

12.1.  Cipher will defend any suit or action brought against Company to the extent that it is based upon a third party claim that the Service, as provided by Cipher to Company pursuant to this Agreement, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim awarded in final judgment against or paid in settlement by Company.  Cipher’s obligations under this Section are contingent upon: (a) Company providing Cipher with prompt written notice of such claim; (b) Company providing reasonable cooperation to Cipher, at Cipher’s expense, in the defense and settlement of such claim; and (c) Cipher having sole authority to defend or settle such claim.

12.2.  Exclusions.  Notwithstanding the terms of Section 12.1, Cipher will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from:  (i) the combination, operation or use of the Service with equipment, devices, software or data (including without limitation Data) not supplied by Cipher, if a claim would not have occurred but for such combination, operation or use;  or (ii) Company’s or an End User’s use of the Service other than in accordance with the Terms.

12.3.  Sole Remedy.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF CIPHER AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.

12.4.  Company agrees to defend, indemnify and hold harmless Cipher and our affiliates and our respective officers, directors, agents, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) Company’s access or use of the Service; and/or (ii) Company’s breach of this Agreement.  Company’s obligations under this Section are contingent upon: (a) Cipher providing Company with prompt written notice of such claim; (b) Cipher providing reasonable cooperation to Company, at Company’s expense, in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim.

  1.         Compliance with laws. Each party shall comply with all applicable laws relating in any way to its performance of its obligations under this Agreement. Company agrees to comply fully with all applicable export laws and regulations in any jurisdiction to ensure that neither the Service nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
  2. This Agreement, and any rights granted hereunder, may not be transferred or assigned by Company but may be assigned by Cipher without restriction.
  3. This Agreement and the Order Form, represent the complete agreement concerning the Service between Company and Cipher and supersede all prior agreements and representations related to the subject matter hereof. This Agreement and each Order Form shall be governed by the laws of the State of Florida, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes hereunder shall be the state and federal courts located in Miami Dade County, Florida, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from this Agreement. All proceedings shall be conducted in English. Notwithstanding the foregoing, Cipher reserves the right to seek injunctive relief against Company to enforce this Agreement in any venue and court of competent jurisdiction. Section headings are provided for convenience only and have no substantive effect on construction. Except for Company’s obligation to pay Cipher, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective one (1) day after being sent to either the designated fax, email, or postal address set forth in the Order Form or as displayed on the Site. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.