Goalscape Software GmbH uses your data with the highest care possible. When we collect and store your personal data we guarantee that we do not forward this data to any third party and only use the data to provide you with important information about the software and to respond to support requests from you.
We do not store credit card information. Your credit card data is processed by our payment providers. When you send emails to Goalscape Software GmbH we only store these to process your questions and to optimize our service.
If you want to receive our newsletter you need to provide a valid email address and provide the required information that will allow us to make sure that you are the legitimate owner of this address and that you agree to receiving the newsletter. Other data is not stored. You can unsubscribe from our newsletter at any time.
Goalscape also automatically stores Server Log Files that contain technical information provided by your browser. These are: browser type and version, operating system, referral URL (the website visited immediately prior to arriving at our site), hostname (IP address) and time of the server query. It is not possible to link this data to any specific person. We do not relate these datasets to any other datasets and we delete the data after a statistical analysis.
Whenever you want, you can ask us for all data that we stored about you, where we received the data and the reason for storing the data. You can reach our support team at firstname.lastname@example.org or write to: Goalscape Software GmbH, Esmarchstrasse 51, 24105 Kiel, Germany.
You can also contact support to demand the immediate deletion of your personal data. We are happy to hear from you if you have any suggestions or need further information about our privacy practices.
The purpose, operation and delivery of the Goalscape software is fully described in text and images (including videos) on our website and in supporting documentation provided with the software. We deliver the Goalscape Desktop software on a direct download from our website. All customers can use Goalscape free of charge for a period of 14 days, after which they may purchase a license for it or continue to use it with restricted functionality.
After purchasing, customers are entitled to updates of the Goalscape Desktop software free of charge during the validity of their Goalscape Unlimited subscription (6 months Goalscape Unlimited subscription is included with the Goalscape Desktop license). These updates are offered on automatic install as they become available.
In addition to the Goalscape Free account (under which users can access Goalscape Online free of charge with no expiry date), we allow all customers to withdraw from a purchase contract within 14 days of purchasing Goalscape without any further preconditions, as long as they have not activated the Goalscape Desktop software or used Goalscape Online since their purchase. In such cases we will reimburse payment in full.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
1. License Grant. This Agreement constitutes a legally binding agreement between you (either an individual or a single corporate entity) (“Customer”) and Goalscape Software GmbH (“Goalscape”) for the Goalscape software and any and all associated media, printed materials, and online or electronic documentation (collectively, the “Product”). Between Customer and Goalscape, only the terms and conditions of this Agreement are binding. Any differing terms and conditions used by a customer are not applicable, even if Goalscape should not expressly disagree with such terms and conditions.
1.1 Purchase of a single user license permits installation and activation of the Product on one machine at a time. If this license is transferred to another machine the original installation will be deactivated. Use by multiple users on multiple machines requires a purchase of multiple individual licenses or a multi-user license.
1.2 Purchase of a multi-user license allows use by multiple users on multiple machines, up to the limit described by the type of license purchased. All users under a multi-user license must be employees or students of the organization purchasing the multi-user license. The individual or organization purchasing the multi-user license will be regarded as the Customer and is responsible for ensuring compliance with all of the terms contained in this License Agreement on behalf of all users of Goalscape under the license.
2. Ownership. Goalscape retains all rights, title and interest in and to the Product, including all intellectual property rights therein if not otherwise expressly specified in this License Agreement.
3. Other Restrictions. Customer may not use, copy or distribute the Product without Goalscape's authorization, except that Customer may make one or more copies of the Product solely for backup or archival purposes.
a) Customer shall not modify, copy or adapt the Product; merge the Product into another program; reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from the Product (except if this is necessary to ensure interface functions to other software products and the relevant information was not available by contacting Goalscape within reasonable time); or place the Product onto a server, or combine the Product with any software or hardware, so that it becomes accessible (directly or indirectly) by means of a public (such as the Internet) or a private network.
b) Customer shall not under any circumstances remove or alter copyright notices, registration numbers, or other features serving to identify the Product.
c) Customer shall not hire out the Product (or any part thereof) to any third party for commercial purposes or for service bureau use.
d) Customer shall not sub-license, rent, lease, loan, or otherwise indirectly transfer (such as by consignment) any portion of the Product to any third party.
e) Customer shall not transfer the Product to any third party if Customer knows or has reason to believe that the third party will violate any term or condition of this Agreement.
Any use of the Product (or any part thereof) in violation of this Agreement shall entitle Goalscape to all rights and remedies available to it at law or in equity, including (without limitation) monetary damages and equitable relief.
4. No Warranty (please note the specific country modifications in Section 8). The Software is being delivered to you "AS IS" and Goalscape makes no warranty as to its use or performance. GOALSCAPE AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, GOALSCAPE AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of Section 4 and Section 5 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to use the Software after termination of this Agreement.
5. Limitation of Liability (please note the specific country modifications in Section 8). IN NO EVENT WILL GOALSCAPE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A GOALSCAPE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. GOALSCAPE’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits Goalscape's liability to you in the event of death or personal injury resulting from Goalscape's negligence or for the tort of deceit (fraud). Goalscape is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose.
6. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified in writing and any amendments must be signed by an authorized officer of Goalscape. Updates may be licensed to you by Goalscape with additional or different terms. This is the entire agreement between Goalscape and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
7. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force in Germany. If Customer is a business user, the respective courts of Germany competent for Goalscape's seat shall have jurisdiction over all disputes relating to this Agreement; however Goalscape may file legal actions as well at the seat of the Customer. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8. Specific Country Modifications.
8.1. Warranty for Users Residing in the European Union.
If the Customer obtained the Software in a member state of the EU and usually resides in such country then Section 5 does not apply. Instead, Goalscape warrants that the Software provides the functionalities set forth in the Documentation (the "agreed upon functionalities") for the limited warranty period following receipt of the Software when used on the recommended hardware configuration. As used in this Section, "limited warranty period" means one (1) year if you are a business user and two (2) years if you are not a business user. Non-substantial variation from the agreed upon functionalities shall not be considered and does not establish any warranty rights. If the functionalities of the Software vary substantially from the agreed upon functionalities, Goalscape is entitled, by way of re-performance and at its own discretion, to repair or replace the Software. If this fails, the Customer is entitled to a reduction of the purchase price (reduction) or to cancel the purchase agreement (rescission) and/or to claim damages pursuant to Section 8.2.
8.2. Limitation of Liability for Users Residing in the European Union.
8.2.1. If the Customer obtained the Software in a member state of the EU, and usually resides in such country, then Section 6 does not apply. Instead, subject to the provisions in Section 8.2.2, Goalscape's statutory liability for damages shall be limited as follows: (i) Goalscape shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the purchase agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation, i.e. an obligation which is a necessary precondition for this Agreement´s implementation, and (ii) Goalscape shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
8.2.2. The aforesaid limitation of liability shall not apply to liability under the German Product Liability Act, liability for assuming a specific guarantee, liability for culpably caused personal injuries or liability for fraudulent concealment of defects.
9. PRIVACY. Goalscape will, while processing the Customer´s order, collect and use information concerning the Customer’s name, address, email address and other contact details only to process Customer’s order and its contractual relation. Goalscape will not deliver such data to third parties. Goalscape strictly complies with the EU Data Protection Directive and the German Privacy Law (Bundesdatenschutzgesetz und Telemediengesetz).
10. THIRD PARTY LICENSES.
10.1. Goalscape software contains third party software licensed under the MIT license, to which the following specifications apply:
· FlexLib Components Library - Copyright (c) 2007 FlexLib Contributors (http://code.google.com/p/flexlib/wiki/ProjectContributors)
· AS3 Thread Library - Copyright (c) 2008 BeInteractive! (www.be-interactive.org) and Spark project (www.libspark.org)
· AS3 Zip Library - Copyright (c) 2008 Nochump.com / David Chang
· AlivePDF Library - Copyright (c) 2008 Thibault Imbert
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
10.2. Goalscape software contains third party software licensed under the BSD license, to which the following specifications apply:
· AS3 Corelib Library - Copyright (c) 2008 Adobe Systems Incorporated, All rights reserved.
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Neither the name of the abovesaid copyright holders nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.3. Goalscape software contains third party software licensed under the Apache license, to which the following specifications apply:
· Mate Framework - Copyright (c) 2008, Nahuel Foronda / AsFusion
· Google Analytics Library - Copyright 2008 Adobe Systems Inc., 2008 Google Inc.
Licensed under the Apache License, Version 2.0 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0
Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
GENERAL TERMS AND CONDITIONS GOVERNING THE USE OF GOALSCAPE ONLINE
All capitalized terms used in this paragraph have the meaning set forth in Article 1 below. Customer's use of the Site and the Service is subject to this Agreement, including these General Terms and Conditions. If Customer does not agree to this Agreement, Customer may not use or access the Service or the Site. If you are an individual agreeing to this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement and such entity shall be the Customer. Customer's registration for, or use of, the Site or the Services shall be deemed to be its acceptance of this Agreement. If Customer is purchasing or otherwise obtaining access to Goalscape Online without physical signature of an Order Form, the term "Goalscape" as used herein is Goalscape Software GmbH, a German company, with an office at Esmarchstrasse 51, 24105 Kiel, Germany, from which Customer is obtaining the Service, either directly or indirectly through a reseller. If Customer is purchasing or otherwise obtaining access to the Service by physically executing an Order Form, the term "Goalscape" means the entity identified on the Order Form as the entity from which Customer is obtaining the Service, either directly or indirectly through a reseller.
Article 1: Definitions
1.1 "Affiliate" means any legal entity in which the Customer, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights. Any such company shall be considered an Affiliate for only such time as such interest is maintained.
1.2 "Agreement" means these General Terms and Conditions and any Order Form referencing these General Terms and Conditions, and any other schedules, exhibits or appendices thereto, whether attached or incorporated by reference.
1.3 "Confidential Information" means, with respect to Goalscape, all information which Goalscape protects against unrestricted disclosure to others, including but not limited to: (a) the Goalscape Service, including without limitation the following information regarding Goalscape's Service: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in Goalscape's Service; (ii) benchmark results, program listings, data structures, logic diagrams, functional specifications, file formats; and (iii) system infrastructure, security/architecture design and/or operations processes (iv) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Service; (b) the research and development or investigations of Goalscape; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to Goalscape subject to an applicable confidentiality obligation to such third party). With respect to Customer, "Confidential Information" means the Customer Data and all information that Customer protects against unrestricted disclosure to others and which (i) if in tangible form, Customer clearly identifies as confidential or proprietary at the time of disclosure; and (ii) if in intangible form (including disclosure made orally or visually), Customer both identifies as confidential or proprietary at the time of disclosure, summarizes the Confidential Information in writing, and delivers such summary within thirty (30) calendar days of any such disclosure.
1.4 "Content" means visual, audio, numeric, graphical, text or other data or content supplied by third parties and made available through the Site or otherwise by Goalscape for use in conjunction with the Service.
1.5 "Customer" means the entity or individual that has consented to this Agreement by execution of an Order Form that references these General Terms and Conditions or by other legally binding method of acceptance of this Agreement, including checking a box on a registration page.
1.6 "Customer Data" means any materials, data and information provided by Customer or its Named Users to Goalscape in the course of using the Service.
1.7 "Documentation" means Goalscape's documentation, which is delivered or made available to Customer as part of the Service under this Agreement.
1.8 "Named User" means any users licensed under this Agreement and authorized by Customer to access and use the Service.
1.9 "Order Form" means the written order form or other ordering documentation (including a registration Webpage or Website) entered into by Goalscape and Customer containing the specific terms and conditions applicable to the Service and which references these General Terms and Conditions.
1.10 "Goalscape" means the entity identified by these General Terms and Conditions or the Order Form as providing the Service to Customer and that is a party to this Agreement.
1.11 "Service" means the Goalscape Online service.
1.12 "Site" means an Internet site established by Goalscape through which Service is made available.
Article 2: Usage Rights
2.1 Subject to the terms of this Agreement, Goalscape grants to Customer the nontransferable and nonexclusive right during the term stated in the Order Form to permit Named Users to access and use the Service solely for Customer's own internal business purposes as permitted by this Agreement and the Documentation. This license is a worldwide license and is subject to applicable export control laws.
2.2 Customer shall not license, sell, lease, rent, outsource or otherwise make available the Service to third parties, other than Named Users and Affiliates. Customer shall be responsible for the acts and omissions of its Named Users and Affiliates as if they were the acts and omissions of Customer.
2.3 Customer shall not remove notices and notations on the Site or in the Service that refer to copyrights, trademark rights, patent rights and other intellectual property rights. Goalscape and its licensors own all right, title and interest in any and all patent rights, copyrights, trademark rights and other rights in the Service, as well as any improvements, design contributions or derivative works conceived or created by either party in or to the Service. Except for the limited rights expressly granted herein, this Agreement does not transfer from Goalscape any proprietary right or interest in the Service. All rights not expressly granted to Customer in this Agreement are reserved by Goalscape and its licensors.
2.4 When using the Service Customer shall not, and shall ensure that its Affiliates and Named Users do not: (a) translate, decompile, reverse-engineer or otherwise modify any parts of the Service (except as described in the Documentation) (b) transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the Goalscape software, the Goalscape systems used to host the Service, other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service made known to Customer; (e) use the Service in the operation of a service bureau or time-sharing service; (f) circumvent the user authentication or security of the Site or Service or any host, network, or account related thereto; (g) use any application programming interface to access the Service other than those made available by Goalscape; (h) mirror the Site on any server; (i) make any use of the Service that violates any applicable local, state, national, international or foreign law; (j) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Service, or (k) except for licenses provided to Named Users as permitted in this Agreement, allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Customer for access to the Service.
2.5 Some content on the Site may come from government sources, is in the public domain, and is not copyrightable.
2.6 The Site may contain links to external Web sites and information provided on such external websites by Goalscape partners and third-party service providers. Goalscape shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. Customer further agrees that Goalscape shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Customer's use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Site, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content.
2.7 The Service may include Content. This Content is provided "as is" and Goalscape makes no warranty as to the accuracy or completeness of such Content. Customer uses such Content at its own risk, and Goalscape shall have no liability to Customer or any third party based on Customer's use of or reliance on such Content.
2.8 Goalscape shall be entitled to monitor Customer's compliance with the terms of this Agreement, including but not limited the number of Named Users accessing the Service and, subject to Article 12 of this Agreement, Goalscape may utilize the information concerning Customer's use of the Service to improve Goalscape products and services and to provide Customer with reports on its use of the Service.
2.9 Goalscape may change or modify the Service at any time. Goalscape will only be required to notify Customer of a change or modification to the Service in advance if the change or modification (i) is not within industrial standards and/or customary in the industry and (ii) does not extend and/or enhance the functionalities or architecture of the Service. If Goalscape notifies Customer of a change as required in this Article 2.9 and Customer does not wish to use the Service after notification of such change, Customer may within fifteen (15) days of notification either provide Goalscape with written notice of termination of the Agreement or reject the change by written notice to Goalscape. If Customer rejects a change, Goalscape may terminate this Agreement with one (1) month’s written notice. If Customer provides no written notice to Goalscape within such fifteen (15) day period, Customer shall be deemed to have accepted such change and the Agreement shall continue in full force and effect. Upon termination, Customer's exclusive remedy and Goalscape's sole liability is to refund any prepaid and unused fees from the effective date of the termination of the Service. Nothing in this Section 2.9 shall require Goalscape to continue to provide any portion of the Service if this would result in Goalscape violating the rights of any third party or any applicable law.
2.10 If Customer is granted a license under this Agreement to a free (no fee) version of the Service, to the extent permitted by applicable law, Customer agrees that (i) Goalscape has no obligation to provide any particular service level or support services, and (ii) Goalscape may cease providing the Service at any time without notice. This Section 2.10 supersedes any conflicting term of this Agreement.
Article 3: Support, Set up and Security
3.1 Goalscape will provide support for the Service as may be described in the Order Form or a schedule to the Order Form.
3.2 Goalscape will use commercially reasonable security technologies (such as encryption, password protection and firewall protection) in providing the Service, and Customer shall comply with the applicable Goalscape security guidelines and procedures made known to Customer through the Service or otherwise. However, Goalscape does not control the transfer of data, including but not limited to Customer Data, over telecommunications facilities, including the Internet, and Goalscape does not warrant secure operation of the Service or that such security technologies will be able to prevent third party disruptions of the Service.
Article 4: Customer Responsibilities and Obligations
4.1 Subject to Article 13 below, Customer grants to Goalscape the nonexclusive right to use Customer Data for the sole purpose of and only to the extent necessary for Goalscape to provide the Service.
4.2 Customer shall be responsible for entering its Customer Data into the Service and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Customer hereby represents and warrants to Goalscape that the Customer Data is free of all viruses, Trojan horses, and comparable elements that could harm the systems or software used by Goalscape or its subcontractors to provide the Service.
4.3 Customer shall change all passwords used to access the Service at regular intervals. Should Customer learn of a third party having obtained knowledge of a password, Customer shall inform Goalscape thereof without undue delay and shall promptly change the password.
4.4 Customer is responsible for the connection to the Service, including the Internet connection. Goalscape shall not be responsible for any failure to meet its obligations under this Agreement that result from or relate to the connection to the Service as provided by Customer.
Article 5: Standard and Optional Services
This Agreement does not include services other than those defined in an Order Form. Modification of the Service or its adaptation for Customer's needs is not included under this Agreement. Subject to a separate written agreement and based on Goalscape's standard terms and conditions for such services, Goalscape may offer optional services that relate to the Service.
Article 6: Prices and Terms of Payment
6.1 Customer shall pay to Goalscape the fees for the Service provided hereunder, in the amount as set forth in the applicable Order Form, within ten (10) days of the date of invoice.
6.2 Upon the renewal of the then-current term of an Order Form for which renewal is permitted, Goalscape shall have the right unilaterally to increase any prices specified in the Order Form to Goalscape's then-current fees for the applicable Service based on the length of the renewal term. Goalscape shall notify Customer of such increase prior to the date upon which Customer must notify Goalscape that it intends not to renew the Order Form, and any such increase shall automatically become effective on the renewal date if the Order Form is renewed.
6.3 Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for alleged defects in the Service.
6.4 All fees not paid when due shall accrue interest at the lesser of 2.5% per month or the maximum rate allowed under applicable law.
6.5 Fees and other charges described in this Agreement, or in Goalscape's most recent list of prices and conditions, do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes ("Tax(es)") now or hereafter levied, all of which shall be for Customer's account. With respect to state/local sales tax, direct pay permits or valid tax-exempt certificates must be provided to Goalscape prior to the execution of this Agreement. If Goalscape is required to pay Taxes, Customer shall reimburse Goalscape for such amounts. Customer hereby agrees to indemnify Goalscape for any Taxes and related costs, interest and penalties paid or payable by Goalscape.
Article 7: Term, Termination and Termination Support
7.1 The term of this Agreement begins on the Effective Date set forth in the applicable Order Form and shall continue in effect as described in the Order Form. Termination of individual Order Forms shall leave other Order Forms unaffected.
7.2 Notwithstanding the foregoing, this Agreement shall terminate (i) thirty (30) days after Goalscape gives Customer notice of Customer's material breach of any provision of the Agreement, including more than thirty (30) days delinquency in Customer's payment of any money due hereunder, unless Customer has cured such breach during such thirty (30) day period; (ii) thirty (30) days after Customer gives Goalscape notice of Goalscape's material breach of any provision of the Agreement, unless Goalscape has cured such breach during such thirty (30) day period. In case of termination in accordance with Article 7.2 (ii), Customer shall be entitled to a pro-rata refund of prepaid fees for the applicable Service. Except for termination in accordance with Article 7.2(ii), termination will not relieve Customer from the obligation to pay fees that remain unpaid.
7.3 Notwithstanding Goalscape's right to terminate as set forth in Article 7.2 above, in the event of (i) any material breach of this Agreement that is not cured within thirty (30) days after receipt of written notice from Goalscape or (ii) a determination by Goalscape that continued use of the Service may result in harm to the Service (including the systems used to provide the Service) or other Goalscape customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another, in addition to any other remedies available at law or in equity, Goalscape will have the right immediately, in Goalscape's sole discretion, to remove any potentially offending Customer Data from the Service, deactivate Customer's user name(s) and password(s) and/or suspend access to the Service.
7.4 Upon the effective date of termination, Customer's access to the Service shall be terminated. Following termination Goalscape shall make available to Customer the Customer Data in a format to be determined by Goalscape, unless such Customer Data has been removed in accordance with Section 7.3 or in case Customer was granted a free (no fee) license to the Service. Upon termination of the Agreement, Goalscape shall use commercially reasonable efforts permanently and irrevocably to remove all data still remaining on the servers, including but not limited to Customer Data, unless and to the extent that applicable laws and regulations require further retention of such data.
7.5 Articles 6 (other than 6.2), 9, 10, 11, 12 and 13 shall survive the expiration or termination of this Agreement.
Article 8: Warranties by Goalscape
8.1 Goalscape warrants that the Service (excluding any third party products, content or services accessed through the Service) shall perform in accordance, in all material respects, with the functional specifications described in the Documentation. The warranty shall not apply: (i) if the Service is not used in accordance with this Agreement and any Documentation; (ii) if the defect is caused by third party services, content or products or any customizations to the Service or (iii) to free (no fee) or trial licenses of the Service.
8.2 Customer shall report any defects to Goalscape in writing without undue delay through a Goalscape approved support channel, submitting a detailed description of the problem and any information useful for rectification of the defect.
8.3 Customer's sole and exclusive remedies for any damages or loss in any way connected with the Service, whether due to Goalscape's negligence or breach of any other duty, shall be, at Goalscape's option: (i) to bring the performance of the Service into compliance in all material respects with the functional specifications stated in the Documentation; or (ii) return of an appropriate portion of any payment made by Customer with respect to the affected portion of the applicable Service.
8.4 EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE 8.1, NEITHER GOALSCAPE NOR ITS VENDORS MAKE ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF THE SERVICE, OR ANY INFORMATION TECHNOLOGY SERVICES, SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT, OR THAT THE OPERATION OF ANY SUCH SERVICE, SOFTWARE, HARDWARE OR OTHER MATERIAL WILL BE UNINTERRUPTED OR ERROR FREE.
Article 9: Indemnification by Goalscape
9.1 Goalscape shall defend Customer against claims brought against Customer by any third party alleging that Customer's use of the Service, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of a patent claim(s), copyright or trade secret rights, and Goalscape will pay damages finally awarded against Customer (or the amount of any settlement Goalscape enters into) with respect to such claims. This obligation of Goalscape shall not apply if the alleged infringement or misappropriation results from use of the Service in conjunction with any other software or service, or unlicensed activities or use of the Service in violation of this Agreement or to free (no fee) or trial licenses of the Service. This obligation of Goalscape also shall not apply if Customer fails to notify Goalscape promptly in writing of any such claim. Goalscape is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on Customer. In the event Customer declines Goalscape's proffered defense, or otherwise fails to cede full control of the defense to Goalscape's designated counsel, then Customer waives Goalscape's obligations under this Article 9.1. Customer shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Goalscape. Goalscape expressly reserves the right to cease such defense of any claim(s) in the event the Service is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party's rights. Goalscape may settle any claim on a basis requiring Goalscape to substitute for the Service alternative substantially equivalent non-infringing services. Customer shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Service that is prejudicial to Goalscape's rights.
9.2 THE PROVISIONS OF THIS ARTICLE 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF GOALSCAPE AND ITS LICENSORS TO CUSTOMER, AND IS CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Article 10: Indemnification by Customer
Customer shall indemnify and hold Goalscape harmless from third party claims arising from or related to (i) any use of the Service (a) in breach of this Agreement, (b) in contravention of any requirements, procedures, policies or regulations of Goalscape or its third party providers applicable to the Service and made known to Customer and (c) in violation of any applicable law or regulation or in violation of the legal rights of others or (ii) the Customer Data. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its Affiliates and their employees or by the conduct of a third party using Customer's access credentials. The foregoing is however conditional upon Goalscape (i) notifying Customer thereof in writing and in detail without undue delay, (ii) authorizing Customer to conduct any judicial and extrajudicial proceedings with such third party on its own and (iii) providing Customer at the expense of Customer with any reasonable assistance so that Customer can defend against the claim.
Article 11: Limitation of Liability
11.1 Under no circumstances shall either party or any of their employees or vendors be liable to the other party or any other person or entity for an amount of damages under this Agreement in excess of the amount of fees paid or payable for the applicable Service in the three (3) month period preceding the date on which the claim of action first arose.
11.2 UNDER NO CIRCUMSTANCES SHALL GOALSCAPE OR ANY OF ITS EMPLOYEES OR VENDORS OR CUSTOMER BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES.
11.3 The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorized by, Goalscape.
11.4 The foregoing limitations of liability and exclusions from liability set forth in this Article 11 shall not apply (i) in cases of gross negligence or willful misconduct, (ii) to obligations of indemnity under Article 10 of this Agreement, (iii) to breaches of Article 12 of this Agreement or (iv) to fees owed under this Agreement.
Article 12: Confidentiality
12.1 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends that appear on the original. With respect to the Confidential Information of the other, each party shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential, provided each party may disclose Confidential Information to its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein "reasonable steps" means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
12.2 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
12.3 Customer shall not disclose the terms and conditions of this Agreement or the pricing contained herein to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Customer agrees that Goalscape may use Customer's name in customer listings or as part of Goalscape's marketing efforts (including, without limitation, reference calls and stories, press releases and reports, testimonials and site visits at times mutually agreeable to the parties). Goalscape will make reasonable efforts to avoid any such reference activities interfering unreasonably with Customer's business.
12.4 Customer may provide, or Goalscape may solicit, input regarding the Service, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Service or any other Goalscape site, service or product, or input as to whether Customer believes Goalscape's development direction is consistent with Customer's business and IT needs, the technology marketplace in general, and the like (collectively "Feedback"). Customer acknowledges and agrees that any information disclosed by Goalscape during discussions related to Feedback shall be considered Goalscape Confidential Information and shall be protected from disclosure in accordance with the terms of this Agreement. In order for Goalscape to utilize such Feedback, Customer hereby grants to Goalscape a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense to Goalscape's licensees and customers, under Customer's relevant intellectual property rights, to use, publish, and disclose such Feedback in any manner Goalscape chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Goalscape's and its sublicensees’ products or services embodying Feedback in any manner and via any media Goalscape chooses, without reference to the source. Goalscape shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to Customer and/or Customer's representatives. Customer acknowledges that the information related to the Service disclosed by Goalscape under this Agreement is only intended as possible strategies, developments, and functionalities of the Service and is not intended to be binding upon Goalscape to any particular course of business, product strategy or development.
Article 13: Data Protection
13.1 Customer has and accepts the full responsibility for all personal data as 'controller' in terms of Article 2 (d) of the EU Data Protection Directive 95/46/EC. To the extent personal data is stored and/or processed under this Agreement, Goalscape will adhere to Customer's instructions as a 'processor' in the terms of Article 2 (e) of the EU Data Protection Directive 95/46/EC. Customer's instructions exceeding the scope of services offered by Goalscape will be at Customer's expense and subject to technical and organizational feasibility by Goalscape. Goalscape and Customer will implement all technical and organizational measures necessary to meet the requirements of applicable data protection laws to protect personal data against misuse.
13.2 To the extent that personal data of Customer are being processed, Goalscape shall obligate its personnel entrusted with the processing of Customer's data to data protection and data secrecy in accordance with applicable law.
13.3 Goalscape is authorized to engage subcontractors for the processing of personal data to the extent necessary for fulfilling its contractual obligations under this Agreement. Goalscape shall obligate its subcontractors to obey all relevant data protection rules. In case that such subcontractor is located outside the EU, Goalscape shall provide for a level of data protection deemed adequate under EU data protection regulations.
13.4 Customer ensures that no legal requirements on Customer's side prevent Goalscape from fulfilling its contractual obligations under this Agreement in compliance with applicable law. This includes, but is not limited to, ensuring that all concerned individuals have previously declared consent to a possible processing of personal data.
Article 14: Miscellaneous
14.1 It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
14.2 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
14.3 An Order Form may be signed in two counterparts, each of which shall be deemed an original and which shall together constitute one Order Form.
14.4 The Service, Documentation and other Goalscape materials are subject to the export control laws of various countries, including, without limitation, the laws of Germany and the EU. Customer agrees that it will not submit the Service, Documentation or other Goalscape materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of Goalscape, and will not export the Service, Documentation and Goalscape materials to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered, and any foreign countries with respect to the use of the Service, Documentation or other Goalscape materials by Customer and/or its Affiliates.
14.5 This Agreement shall be governed by and construed under the laws of the Germany, without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and German law, rules, and regulations, German law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. Customer must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when Customer knew, or should have known after reasonable investigation, the facts giving rise to the claim(s).
14.6 All notices or reports that are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of Goalscape and Customer at the addresses first set forth in any Order Form, registration form or the preamble to these General Terms and Conditions. Where in this Article 14.6 or elsewhere in this Agreement written form is required, that requirement can be met by facsimile transmission, exchange of letters, emails or other written form.
14.7 Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
14.8 This Agreement constitutes the complete and exclusive statement of the agreement between Goalscape and Customer, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions that may appear on any purchase order or other document furnished by Customer to Goalscape. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap or browsewrap end user agreement included in the Service (except for end user agreements governing third party products or services). Signatures sent by electronic means (facsimile or scanned and sent via email) shall be deemed original signatures. This Agreement may not be assigned or transferred in whole or in part, including by operation of law, except that Goalscape may assign this Agreement to any affiliate of Goalscape or to an entity that acquires all or substantially all of Goalscape's or its affiliate's stock or assets. Goalscape may at its sole discretion sub-contract parts of the Service to third parties.
14.9 The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the Order Form; (ii) the schedules, exhibits and appendices to the Order Form; and (iii) these General Terms and Conditions.
14.10 Customer understands and agrees that the Services may include communications such as service announcements and administrative messages from Goalscape or Goalscape's partners. Customer will not be able to opt out of receiving these service announcements and administrative messages while using the Site and Services and until Customer sends Goalscape a specific written notice requesting the termination of Customer's subscription and that Customer's details be eliminated from the Site and any mailing list.