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Terms and Conditions

Version v20190123a, last updated 23rd January 2019

TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY SIGNING THIS CONTRACT PHYSICALLY, ELECTRONICALLY, OR BY CLICKING “ACCEPTED AND AGREED” EACH CUSTOMER AGREES TO THESE TERMS OF SERVICE.

These Terms of Service constitute an agreement (this “Agreement”) by and between Cascade Strategy USA, Inc. a Delaware corporation (“Provider”) and you (“Recipient”) (each a Party, and together the Parties).

Definitions and Interpretations

  • “Account” refers to the Service plans and features selected by Recipient at the time of contract commencement and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through such portal or other means.
  • “Addon” refers to additional features or services purchased by Recipient in addition to the Service as defined below.
  • “Effective Date” refers to the date of execution of this agreement.
  • “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
  • “Our Website” refers to https://www.executestrategy.net and any associated subdomains.
  • “Recipient Data” refers to data in electronic form, input or collected through the Service by or from Recipient, and extends to include any trademarks, logos or other intellectual property of the Recipient.
  • “Privacy & Data Policy” refers to Provider’s privacy & data policy.
  • “Service” refers to Provider’s Cascade Software as a Service service. The Service includes such features as are set forth on Our Website. Provider may change such features from time to time, in its sole discretion.
  • “SLA” refers to Provider’s service level agreement, in form and content as set out in the appendix to this document.

Service & Payment.

  • Service. Provider will provide the Service to Recipient in accordance with this Agreement.
  • Payment. Recipient will pay Provider such Service fees as are required in Recipient’s Account, due on the day before the start of the Service and subsequent Terms.  Schedule C of this agreement sets out the precise rates and payment terms relevant to this agreement.

Service Level Agreement.  

In the event of any “Service Failure,” as that term is defined in the Schedule B, Provider will issue Recipient such credits as are required by the SLA within fifteen (15) days of such failure.

The SLA is hereby incorporated into this Agreement.

Materials, Software, & IP.

  • Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.
  • IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components. Should any work be undertaken by the Provider exclusively on behalf of the Recipient, Recipient may be eligible to ownership of such IP rights, depending on the specifics of the arrangement which will be documented prior to such work commencing.

Each Party’s Warranties.  

  • Recipient’s Identity. Recipient warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law. Provider warrants that the software furnished to the Recipient is without defect in form and design and that it satisfies the purpose for which it has been supplied.  The Provider further warrants that all services shall be provided with due diligence and efficiency and in accordance with the highest standards of professional competence, ethics and integrity.
  • Right to Do Business. Each Party warrants that it has the full right and authority or capacity to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
  • Disclaimers. Except for the express warranties specified in this section 4, the service is provided “as is” and as available, and Provider makes no warranties, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights. Without limiting the generality of the foregoing, (i) the Provider shall indemnify the Recipient against all claims, liabilities, losses, damages or costs (whether incurred by, or awarded against the Recipient) that the Recipient may sustain or incur as a direct or indirect result of any allegation or claim that supply of the Services or the Materials, or their use by the Recipient, infringes the rights (including the intellectual property rights) of any person; and (ii) Provider does not warrant that the Service will perform without error or immaterial interruption. However, recurrent errors or material interruptions in performance are not covered by this Disclaimer.   

Limitation of Liability.

In no event: (a) will Provider or Recipient’s liability arising out of or related to this agreement exceed USD10,000; and (b) will Provider or Recipient be liable for any consequential, indirect, special, incidental, or punitive damages. The liabilities limited by this section 6 apply: (i) to liability for negligence (but not gross negligence or wilful misconduct); (ii) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (iii) even if Provider or Recipient are advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iv) even if Recipient or Provider’s remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Section 6, Provider and Recipient’s liability will be limited to the maximum extent permissible.

Data Management.

  • Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any nondisclosed third party access to Recipient Data. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.
  • Retention & Deletion. Provider will retain all Recipient Data until specific written instruction is received from the Recipient to destroy or alter the data.   
  • Recipient Data. The Provider will take all necessary steps to ensure that the Recipient’s Data is protected against misuse and loss, and from unauthorized access, modification and disclosure, and that only authorized personnel with a legitimate role in fulfilling the Provider’s obligations under this Agreement have access to the Recipient’s Data.

Term & Termination.

  • Term. This Agreement will continue for the duration outlined in Schedule C (“Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of 365 days, unless otherwise stated in Schedule C. The agreement will automatically renew unless either Party notifies the other of its intent not to renew at least 14 working days before the beginning of the next Term.
  • Termination for Cause. Either Party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other Party first cures such breach.
  • Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6(c), and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfil its essential purpose.

Miscellaneous.

  • Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 5 business days after they are sent. Recipient may send notices pursuant to this Agreement to listed office of Provider, and such notices will be deemed received 5 business days after they are sent.
  • Amendment. This Agreement shall not be amended except by the consent of both Parties expressed through a written agreement executed by Authorized Representatives of each Party.  
  • Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other and neither may bind the other in any way.
  • No Waiver.  Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.   

  • Assignment & Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either Party may assign this Agreement to the surviving party in a merger or acquisition of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
  • Choice of Law & Jurisdiction. This Agreement will be governed by, and construed in accordance with the laws of Delaware, United States.  
  • Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfil its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
  • Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the Privacy & Data Policy, the terms of this Agreement will govern.
  • Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
  • Dispute Resolution:
  • Mediation:

Prior to commencement of arbitration, the parties must attempt to mediate their dispute using a professional mediator selected by agreement from American Arbitration Association, the CPR Institute for Dispute Resolution or like organization or, absent agreement, through selection procedures administered by the CPR. Within a period of forty-five (45) days after the request for mediation, the parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than forty-five (45) days absent agreement of the parties or interfere with the availability of emergency relief.

  • Arbitration:

Any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator in accordance with the then current CPR Non-Administered Arbitration Rules ("CPR Rules") (www.cpradr.org), except where those rules conflict with this provision, in which case this provision controls. The arbitrator shall be selected within twenty (20) Business Days from commencement of the arbitration from the CPR Panel of Distinguished Neutrals, unless a candidate not on such panel is approved by both parties. Within forty-five (45) days of initiation of arbitration, the parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight (8) months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the Arbitrator and adhered to by the parties. The arbitrator may award the costs and expenses of the arbitration as provided in the CPR Rules, but each party shall bear its own attorney fees.

  • Nothing contained in this Agreement shall be construed as a waiver of the immunity of the Recipient and its property and assets from all forms of seizure, attachment or execution before the delivery of a final judgment against the Recipient.

Schedule A: Privacy & Data Policy

This following document sets forth the Privacy & Data Policy for the Provider and covers all company websites, SaaS instances and other information collected.

Provider is committed to providing you with the best possible customer service experience. Provider is bound by the Privacy Act 1988 (NSW), which sets out a number of principles concerning the privacy of individuals.

Collection of your personal information

There are many aspects of the site and service which can be viewed without providing personal information, however, for access to certain parts of the Service you will be required to submit personally identifiable information. This may include but is not limited to a unique username and password, or provision of sensitive information for the recovery of a lost password.

We may occasionally hire other companies to provide services on our behalf, including but not limited to handling customer support enquiries, processing transactions or providing consulting services requested by the Recipient. Those companies will be permitted to obtain only the personal information they need to deliver the service. Provider takes reasonable steps to ensure that these organisations are bound by confidentiality and privacy obligations in relation to the protection of your personal information.

For each visitor to reach the site or Service, we expressively collect the following non-personally identifiable information, including but not limited to browser type, version and language, operating system, pages viewed while browsing the Site, page access times and referring website address. This collected information is used solely internally for the purpose of gauging visitor traffic, trends and delivering personalized content to you while you are at this Site.

From time to time, we may use this information for new, unanticipated uses not previously disclosed in our privacy notice. If our information practices change at some time in the future we will use for these new purposes only, data collected from the time of the policy change forward will adhere to our updated practices.

Data Integrity

Transmission of data as part of any system solution provided by Provider is warrantied to use secure methods of communication.  Provider will secure all data in its entirety traveling from Provider’s servers with a minimum of 256bit symmetric encryption, with a 2048bit root encryption certificate.  The standard commonly referenced as SSL (or https) is used for all communication between Provider’s servers and client systems. At no point will data travel outside of the secure server environments in an unencrypted format, with the exception of emails or other messaging services over which Provider has no control. The use of such messaging services will be at Recipient’s discretion and options will be provided to switch these forms of communication off.

Server (infrastructure) security is independently certified to meet the highest international standards of data security, and mirrors the data security requirements of leading multinational corporations such as banks as well as government entities.  The following minimum standards are independently warrantied and verified as met:

  • SOC 1/SSAE 16/ISAE 3402 (formerly SAS 70 Type II)
  • SOC 2
  • FISMA, DIACAP, and FedRAMP
  • PCI DSS Level 1
  • ISO 27001
  • ITAR
  • FIPS 140-2

Infrastructure security is provided by our trusted partner Amazon Web Services LLC and full details regarding relevant certifications can be obtained at http://aws.amazon.com/security/

Location of data is entirely within the Amazon Web Services secure environment.  Recipient may request that data is housed in a named geography for reasons of data sovereignty. The list of supported geographic locations can be found on Our Website.

Changes to this Privacy & Data Policy

Provider reserves the right to make amendments to this Privacy & Data Policy at any time. If you have objections to the Privacy & Data Policy, you should not access or use the Site.

Accessing Your Personal Information

You have a right to access your personal information, subject to exceptions allowed by law. If you would like to do so, please let us know. You may be required to put your request in writing for security reasons. Provider reserves the right to charge a fee for searching for, and providing access to, your information on a per request basis.

Contacting us

Provider welcomes your comments regarding this Privacy & Data Policy. If you have any questions about this Privacy & Data Policy and would like further information, please contact us by email at info@executestrategy.net.

Schedule B: Service Level Agreement

Our Commitment to Our Customers  

Provider is committed to delivering a product and service of utmost quality to our clients. To demonstrate our commitment, we have established the following Service Level Agreement that outlines with full transparency the level of service you can expect from us.  

Measures  

  • Outstanding Availability  
  • Customer Data Ownership  
  • Data Integrity
  • Scheduled Maintenance  
  • Rapid Response          
  • Billing Quality
  • Product Quality  
  • Professional Services Quality

Outstanding Availability  

Our goal is to provide 24x7 system availability, and we are so confident in our Amazon operated data center that we offer subscription credits if availability falls below 99.5%. You receive a credit of 10% of your subscription fees for the month (calculated as a monthly equivalent your annual user licensing charges) in which the outage event(s) occurred for every percentage point that Service Availability falls below 99.5%, up to a maximum of 50% of the applicable subscription fees for that month. To receive a credit, you must submit a request to Provider within 15 days after the month in which the Service Availability outage event(s) occurred. Any credit will be applied against subsequent subscription fees due to Provider.  

Data Backup

Provider maintains regular encrypted backups of your data both on and offsite. If our primary facility goes down, we commit that no more than the last 24 hours of your transactions preceding the catastrophic event will be lost.  

Scheduled Maintenance  

Due to the advanced architecture of our systems, scheduled maintenance is designed to have minimal impact on the availability and uptime of the service. If an extended maintenance operation is required that will impact our uptime, the maintenance will be scheduled when it will have the least impact on our customers whenever possible (usually nights or weekends). For extended maintenance periods, we will notify you 5 business days in advance.  

Rapid Response  

If you contact our Technical Support office we will provide an immediate acknowledgment, as well as a response, within 12 business hours. For P1 critical issues that cannot be resolved within a 24 hour time period, we will provide an update within that time and continue to update you with additional information as it’s available.  Technical Support is provided 24x7 over email and live chat, and 24x5 (Monday to Friday) by telephone. Hours are US Eastern.

Product Quality   

Our goal is to provide a high quality product that operates as described in our online product documentation. If issues are encountered with Provider’s applications, we will address reported issues according to the following priority levels:

Service Availability Definition

Service Availability is computed using the following definitions.

System: Provider service, accessible over the network via web protocols, up to and including Provider’s Internet connection. Network problems beyond that point, such as ISP problems, Internet backbone problems or customer network problems are excluded. Development sites and beta software sites that are at times made available to Recipient’s are excluded. Problems caused by software running on Recipient’s computers are also excluded.  

System Outage Hours: Total time during a given month in which the System is unavailable, excluding scheduled system maintenance times.   

Total Hours: Number of hours contained in a given month, excluding Scheduled Maintenance time.  

Service Availability: The percentage of Total Hours during a given month in which the System was available is computed as follows:   100 x Total Hours-System Outage Hours / Total Hours

Calculation of Service Availability excludes system outages caused by force majeure, i.e. acts of God, war civil unrest, acts of government and any other circumstances beyond Provider’s reasonable control.

A “Workaround” is a response that solves a problem or system issue by the use of alternate methods or a change in procedures in place of a program modification

Customer Data Ownership  

Data ownership of all Recipient Data will always remain owned in full by the Recipient. If you decide to move to another solution, we will help you export your data for a nominal fee.  

Billing Quality  

We will deliver accurate statements of activity and charges to you. If there is a billing error brought to our attention, we will provide you a corrected statement within 3 days of being notified of the error.  

Schedule C: Scope & Commercials

Scope

The nature of SaaS platforms means that they are constantly evolving. The Service is provided per the features outlined on Our Website and is subject to change. However, the service can be broadly considered to include the following aspects:

  • Plan

Our core strategic planning module, where you can configure your strategy framework, and create your high-level plan.

  • Manage

The main engine of Cascade that allows you to update and collaborate around the progress of your goals, projects, and KPIs.  

  • Track

Robust visuals in the form of snapshots and dashboards, which allow your staff to track the progress of the different elements of your strategic plan.

In addition to the Service, Recipient may also opt in to receive nominated Addons. These Addons may change over time and are outlined in detail on Our Website. Any Addons purchased are subject to the same terms and conditions outlined in this Agreement.

Effective Date and Duration

The Effective Date is the date of execution of this Agreement.

Initial contract period will be for 12 months from above date.  The following options will be available at the end of initial period:

  • Extend to longer term commitment – details to be agreed at time
  • Discontinuing service  
  • Option to export all data upon discontinuation will be provided and is included in the scope of this Agreement

Pricing

Recipient agrees to the pricing published on The Proposal as of the Effective Date of this Agreement. Any subsequent changes in price will be reasonable and notified to the Recipient at least 30 days prior to effect and Recipient will have the option to reject such price increase which will trigger termination of this Agreement.

The Recipient will be charged in United States dollars.

Professional Services

Professional services will be provided as a combination of onsite and remotely using audio and video conferencing facilities.  

Additional professional services are available at any time during the Term.  The scope of such services is variable and will be agreed on a case by case basis.  However typical uses of such services include:

  • Additional customization of Cascade
  • Bespoke feature development
  • Advanced integrations
  • Additional reporting or other outputs outside the scope of the Service.

The professional services rate applicable to the Term of this agreement is USD250 per hour unless otherwise agreed or specified.

Payment Terms

Payments are due within 10 days of invoicing or before the Effective Date of this Agreement, whichever is sooner.

No refunds or credits will be offered for unused software or services, nor will any user licenses or services roll over to future periods.