Effective 7 April 2017
These Terms of Service (the User Terms) describe your rights and responsibilities when using GoalScreen’s online business performance tool (the App) or receiving advice from a GoalScreen coach (the Services). Please read them carefully. If you are a Customer (defined below), these User Terms govern your access and use of our App and Services.
First Things First
These User Terms Form a Part of a Binding Contract
These User Terms, are effective upon your first use of our web site and constitute a contract between Customer and us governing your use of our App. The terms of any subscription option selected on the GoalScreen web site also form a contract, this one for Services, effective on the date of that subscription. We, our and us currently refer to GoalScreen. The extent to which each of these contracts (collectively, the Contract) will apply if you enter into a separate Customer agreement with us will be set forth in that agreement.
Who is the Customer?
Customer is (1) the individual who agrees to a Contract if such individual is not a corporation or other organization, or (2) the organization that the individual subscriber represents in agreeing to a Contract. Please make sure you have the necessary authority to enter into a Contract on behalf of your organization before proceeding.
Choosing to be an Early Access Tester
Occasionally, we look for early access testers to help us test our new features. These features will be identified as early-access or pre-release, or words or phrases with similar meanings (each, an Early Access Product). Early Access Products or Services may not be ready for prime time so they are made available as is, and any warranties or contractual commitments we make for the App. or other Services do not apply. Should Customer encounter any faults with our Early Access Products or Services, we would love to hear about them; our primary reason for running any early access programs is to iron out issues before making a new feature widely available.
Feedback is Welcome
The more suggestions our customers make, the better the App and Services become. If Customers send us any feedback or suggestions regarding the App or Services, there is a chance we will use it, so Customers grant us an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to said Customers. If we choose not to implement the suggestion, please do not take it personally. We appreciate it nonetheless.
Use of the Services
Customers must comply with each Contract entered into. We may review content for compliance purposes, but we have no obligation to do so. The Services are not intended for and should not be used by anyone under the age of 13. We are not responsible for the content of any Customer data or the way Customers choose to use the App or the Services to store, process, interpret, or use such data. Customers are solely responsible for providing high speed internet service and devices for their use of the App.
For Customers who subscribe to the App and purchase Services, fees are specified on the Pricing pages of the website and payment terms are specified on those pages and, if applicable, on the web site of the payment service used by the Customer. Customers must pay fees in advance. Payment obligations are non-cancelable and, except as expressly stated in a Contract, fees paid are non-refundable. For clarity, in the event Customers downgrade any subscriptions from a higher to a lower payment rate, those Customers will remain responsible for any unpaid fees under the original plan, and Services and App use under the prior plan will be deemed fully performed and delivered upon expiration of the initial subscription term. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, Taxes). Each Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
We will use commercially reasonable efforts to make the App available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will try to provide Customers with advance notice if we think it may exceed five (5) continuous minutes.
Protecting Customer Data
Ownership and Proprietary Rights
Customers own their own data submitted to GoalScreen, subject to their arrangements with their own clients. Subject to the terms and conditions of the Contract, Customers and Clients grant GoalScreen a worldwide, non-exclusive, limited-term license to access, use, process, copy, distribute, perform, export and display Customer and data as reasonably necessary (a) to provide, maintain and improve the App and Services; (b) to prevent or address service, security, support or technical issues; (c) to operate and manage the Predictive Scorecard program described below; (d) as required by law; and (e) as expressly permitted in writing by Customers.
An important benefit of several GoalScreen Services and App plans is finding out which combinations of drivers have proven effective in explaining changes in specific business outcomes. In using the GoalScreen App and Services, Customers grant us the right to report such combinations of drivers and outcomes to other Customers, provided that we will:
- report only the names of selected business outcomes and the drivers thought to explain them, and not any numerical values associated with them;
- indicate the business sector to which such outcomes and drivers pertain so long as doing so in no way discloses the identity of the Customers who have tested such combinations of outcomes and drivers;
- report no other information from Customers who have tested such combinations of outcomes and drivers; and
- use the same criteria in selecting combinations of outcomes and drivers to report to all Customers whose subscriptions entitle them to request such reports.
App and Services Methodology
We own and will continue to own our App and Services methodology, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of our Services and App subscriptions. We grant to each Customer a non-sub-licensable, non-transferable, non-exclusive, limited license for the Customer to use the object code version of these components solely as necessary to use the App and Services in accordance with the Contract. We hereby retain all rights not expressly granted by this license.
Term and Termination
As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions.
Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Pricing-interface check-out or execute a renewal Order Form) for additional periods equal to one (1) month; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or our Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. We may terminate the Contract immediately on notice to a Customer if we reasonably believe that the App or Services are being used by such Customer in violation of applicable law.
Termination without Cause
Customers may terminate their subscriptions at any time. We nevertheless recommend that each Customer maintains its subscriptions long enough to revise its outcomes and assumptions six times, as the predictive power of the assumptions captured and reported through our App and Services increase significantly after six revisions. Six such revisions may require three (3) months of subscriptions for Customers revising their data every two weeks and six (6) months of subscriptions Customers revising their data once a month. We may also terminate Customer without cause, but we will provide thirty (30) days prior written notice.
Effect of Termination
Upon any termination for cause by a Customer, we will refund such Customer any prepaid fees covering the remainder of the term of its subscription after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of its subscription after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer data. During the term of a Customer’s subscription, Customer will be permitted to export or share outside of GoalScreen, but only with Customer’s own clients, certain data generated by the App and Services; provided, however, that because we have different products with varying features and Customers have different reporting options, each Customer acknowledges and agrees that the ability to export or share Customer data generated by the App or Services outside of GoalScreen may be limited or unavailable depending on the type of subscription in effect and the data reporting options of that subscription. Sharing of certain Customer data within the App is covered under the heading Predictive Scorecards above. Following termination or expiration of a Customer subscription, we will have no obligation to maintain or provide any Customer data and may thereafter, unless legally prohibited, delete all such data in our systems or otherwise in our possession or under our control. Customer data shared with other Customers in our Predictive Scorecard program may continue to be so shared after any termination of a Customer subscription or of the Customer’s Contract.
Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it complies with the terms of its Contract(s) and the User Terms. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Limitation of Liability
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR GOALSCREEN’S LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACTS OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE MONTH PRECEDING THE LAST EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER PAYMENT OBLIGATIONS UNDER THE PAYMENT TERMS SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR GOALSCREEN HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer is responsible for all login credentials, including usernames and passwords, and for administrator accounts. We will not be responsible for any damages, losses or liability to Customer, or anyone else, if such information is not kept confidential by Customer, or if such information is correctly provided by an unauthorized third party logging into and accessing the App and Services.
The limitations under this Limitation of Liability section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Limitation of Liability section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
Our Indemnification of Customer
We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the App and Services as permitted under the Contracts infringes or misappropriates a third party’s intellectual property rights (a Claim Against Customer), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by them under a settlement we approve of in connection with a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer data; and (b) any modification, combination or development of the App or Services not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control of such claim, and Customer must cooperate with any reasonable request to assist our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedies against, GoalScreen for any Claim Against Customer.
Customer’s Indemnification of Us
Customer will defend GoalScreen from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to the Customer’s violation of the Contract or the User Terms (a Claim Against Us), and will indemnify GoalScreen for all reasonable attorney’s fees incurred and damages and other costs finally awarded against GoalScreen in connection with or as a result of, and for amounts paid by GoalScreen under a settlement the Customer of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow it the right to assume the exclusive defense and control of such claim, and we must cooperate with any reasonable request to assist its defense and settlement of such matter. This section states your sole liability with respect to, and GoalScreen’s exclusive remedy against Customer for, any Claim Against Us.
Limitations on Indemnification
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Each party (Disclosing Party) may disclose Confidential Information to the other party (Receiving Party) in connection with the Contract. Confidential Information is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer data, except such data as may be included in our Predictive Scorecard program described above, but only to the extent of such inclusion. Our Confidential Information includes Customer data generated by the App or Services, except to the extent that Customer’s subscription allows Customer to disclose that data to third parties. If something is labeled Confidential, that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or(d) was independently developed by the Receiving Party..
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
The sections titled Feedback is Welcome, Payment Terms, Customer Data, Predictive Scorecards, App and Services Methodology, Effect of Termination, Data Portability and Deletion, Representations; Disclaimer of Warranties, Limitation of Liability, Our Indemnification of Customer, Customer’s Indemnification of Us, Limitations on Indemnification, Confidentiality and Survival, as well as all of the provisions under the general heading General Provisions, will survive any termination or expiration of the Contract.
Customers grant us the right to use their company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers and clients, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We do not want to list Customers who do not want to be listed, so Customers may send us an email to [email protected] stating that they do not wish to be used as a reference.
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties; No Third-Party Beneficiaries
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the Contract.
Except as otherwise set forth herein, all notices under the Contract will be by email. Notices to GoalScreen will be sent to [email protected],. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As our business evolves, we may change these User Terms and the other components of the Contract (except any Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to the change taking effect, by emailing the email address associated with the Customer’s account. Customer can review the most current version of the User Terms at any time by visiting this page and by visiting the most current versions of the other pages to which the Contract refers. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer accesses or uses the App or Services after the effective date, that use will constitute its acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.
Except by GoalScreen, which reserves the right to aggregate certain data not to include any data that could identify any individual or company, neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer will keep its billing and contact information current at all times by notifying GoalScreen of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Venue; Waiver of Jury Trial; Fees
The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
The Contract, including these User Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement previously electronically accepted by Customer. However, to the extent of any conflict or inconsistency between the provisions in these User Terms and any other documents or pages referenced in these User Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any) furnished by GoalScreen, (2) the User Terms and (3) finally any other documents or pages referenced in the User Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (including Order Forms furnished by Customer) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.
Please also feel free to contact us if you have any questions about GoalScreen’s User Terms of Service. You may contact us at [email protected] or at our mailing address below:
101 Cooper Street
California, CA 95060