Legal Anti-Piracy Notice

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GOAL/QPC Software Terms and Conditions of Service

ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE

The online service ("Service") for operation of the MemoryJoggerLibrary™ Software is provided by GOAL/QPC Inc. or an authorized vendor (the "Provider") to licensed end-users ("End-User" is a unique named individual person, not a generic title, nor department name, nor company name etc.) only in accordance with the terms and conditions contained in this document (referred to as "Terms and Conditions") and any other use is prohibited. BY USING THIS SERVICE, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IN ADDITION TO THESE TERMS AND CONDITIONS, USE OF THIS WEBSITE AND THE SERVICE IS SUBJECT TO ANY WRITTEN SOFTWARE LICENSE AGREEMENT OR CUSTOMER AGREEMENT EXECUTED BY YOU, OR IF APPLICABLE, YOUR COMPANY AND ALL OTHER TERMS AND CONDITIONS OF SUCH SOFTWARE LICENSE AGREEMENT OR CUSTOMER AGREEMENT ARE INCORPORATED BY REFERENCE HERE. IN CASE THERE IS A CONFLICT BETWEEN THESE TERMS AND CONDITIONS AND SUCH SOFTWARE LICENSE AGREEMENT OR CUSTOMER AGREEMENT, THE TERMS AND CONDITIONS OF SUCH SOFTWARE LICENSE AGREEMENT OR CUSTOMER AGREEMENT WILL CONTROL.

DESCRIPTION OF SERVICE

The Service is providing its End-Users with a capability to create plans, strategies, and metrics and track your progress. You must: (1) provide all equipment, including a computer and modem, necessary to establish a connection to the server this software resides on ("GOAL/QPC Servers") and (2) obtain access to the GOAL/QPC Servers and pay any telephone/internet service fees associated with such access.

MODIFICATIONS TO TERMS OF SERVICE

The Provider may change the Terms and Conditions of service from time to time. These Terms and Conditions may not be changed or supplemented in individual instances except in a writing that is signed by an authorized representative of the Provider. It is your responsibility to check this document periodically for any changes or modifications, as there will be no individual notices to End-Users regarding such changes or modifications. Your continued use of the Service constitutes an affirmative acknowledgment by you of the Terms and Conditions and any subsequent modifications made to them and your agreement to abide and be bound by them.

MODIFICATIONS TO THE SERVICE

The Provider reserves the right to modify the Service with or without notice to its End-Users.

PRIVACY POLICY

Members of the Provider's technical staff may need to access your plan and account information from time to time to ensure that the system is functioning properly. Any Provider employee with access to your information will be required to sign a non-disclosure agreement to keep your data secure. It is the Provider's policy to respect the privacy of its End-Users. Therefore, in addition to the privacy of account data the Provider will not monitor, edit, or disclose the contents of its End-Users' private information unless required to do so by law or in the good faith belief that such action is necessary to conform to the edicts of the law or comply with legal process served on the Provider or to protect and defend the rights or property of the Provider. As an End-User you acknowledge and understand that certain technical processing of GOAL/QPC applications and their content may be required to send and receive messages; conform to connecting networks' technical requirements; conform to the limitations of the Service; or conform to other similar requirements.

END-USER ACCOUNT, PASSWORD, AND SECURITY

Once you become an End-User of the Service, you will receive a password and an account. You, alone, are responsible for maintaining the confidentiality of your password, and you agree that the Provider has no obligation with regard thereto. Furthermore, you are entirely responsible for any and all activities, which may occur under your account. You agree not to give your sign-in identity or password to anyone else, and not to sign in using any sign-in identity that is not your end-user identity. If you believe your password and/or PIN code has been lost or stolen, or that someone has gained access to your password without your permission, you must immediately notify the Provider by sending email to service@goalqpc.com. You may change your password at any time by following instructions provided. You may not create a user identity that is not for a unique End-user.

To the extent you utilize the Service, you acknowledge and agree that the Provider makes no guarantee that communications or transactions conducted online will be absolutely secure. You further acknowledge and agree that there may be system failure that may limit your ability to use the online services. You agree to assume all risk and liability arising from your use of the Service, including the risk of breach in the security of the communications or transactions you conduct with the Provider online.

DISCLAIMER OF WARRANTIES

END-USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE IS AT END-USER'S SOLE RISK AND THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICE MAKES NO WARRANTY THAT THE SERVICE WILL MEET END-USER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. THE PROVIDER MAKES NO GUARANTEES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. END-USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS AT END-USER'S OWN RISK AND END-USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO END-USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY END-USER FROM THE SERVICE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

THE PROVIDER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF END-USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE PROVIDER SHALL NOT BE HELD RESPONSIBLE FOR ANY MESSAGES RECEIVED BY END-USER, REGARDLESS OF THEIR CONTENT.

NO RESALE OR COMMERCIAL USE OF THE SERVICE

Your right to use the Service is personal to you. Therefore, an End-user may only be a unique named individual person, not a generic title, nor department name, nor company name, etc. You may not resell or make any commercial use of the Service, without the express written permission of the Provider. You may not otherwise use, modify, copy, print, display, reproduce, distribute, manipulate, or publish any information from this site without the express written permission of the Provider. At any time the Provider may, without notice, make changes to this site or to the online services or products described in this site.

END-USER CONDUCT

You are solely responsible for the contents of your transmissions through the Service. Your use of the Service is subject to all applicable local, state, national and international laws and regulations. Therefore, you agree: (1) to comply with all applicable United States laws regarding the transmission of technical data exported from the U.S. through the Service; (2) that you shall not use the Service for illegal purposes; (3) that you shall not interfere or disrupt networks connected to the Service or take any action that imposes an unreasonable or disproportionately large load on this site or its network infrastructure or that adversely affects the Service; (4) that you shall not use any device, software, or hardware to bypass any operational element or to interfere, or attempt to interfere, with the proper working of this site, server or activities conducted therein; (5) that you shall not use any data mining robots ("bots"), hardware or software modules that add a specific feature or service by plugging into an existing larger system ("plug-ins"), or similar data gathering and extraction tools, scripts, applications, or methods on this site; (6) that you shall not decompile, reverse engineer, modify or disassemble any of the software in or associated with the network and/or server; (7) that you shall not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Provider or use any trademark of the Provider except as expressly permitted by the Provider in writing; and (8) that you shall comply with all regulations, policies and procedures of networks connected to the Service. The Service makes use of the Internet to send and receive certain messages; therefore, your conduct is subject to Internet regulations, policies and procedures. End-Users may not use the Service to send chain letters, junk mail or spam (unsolicited bulk e-mail) or to communicate with any person who has not given specific permission to be included in such communications. In addition, you may not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. End-Users may not interfere with another End-User's use and enjoyment of the Service or another entity's use and enjoyment of similar services. The Provider reserves the right to modify, reject or eliminate any information residing on or transmitted to its server that it, in its sole discretion, believes is unacceptable or in violation of these Terms and Conditions and to suspend or end your service for any operational or governmental reason or violation of these Terms and Conditions. The Provider may, at its sole discretion, immediately terminate Service should an End-User's conduct fail to conform to these Terms and Conditions. The Provider reserves the right to terminate any inactive account. Unauthorized use of this site or the network infrastructure and/or data display by a person or entity that is not the authorized user of the account is not permitted and the Provider reserves the right to take legal action.

INDEMNIFICATION

You agree to indemnify and hold the Provider, its officers, directors, employees, subsidiaries, affiliates, successors and assigns, harmless from any third party claim or demand, including reasonable attorneys' fees, made in connection with or arising out of your use of the Service, your violation of the Terms and Conditions, or the infringement by you, or other users of the Service using your end-user license, of any intellectual property, right of privacy or publicity, or other right of any person or entity.

TERMINATION/CANCELLATION

The Provider may terminate the Service with or without cause at any time and effective immediately. Termination shall be accompanied by a written notice. The Provider shall not be liable to you or any third party for termination of the Service.

Should End-User object to any Terms and Conditions of the Service or any subsequent modifications thereto or become dissatisfied with the Service in any way, your sole and exclusive recourse is to immediately discontinue your use of the Service; cancel your end-user license; and notify the Provider of your cancellation.

Upon termination of the Service, your right to use the Service (and any software contained therein) immediately ceases and you shall have no right and the Provider shall have no obligation thereafter to forward any unread or unsent messages to End-User or any third party.

NOTICE

Except as otherwise indicated herein, all notices to you from the Provider or from you to the Provider shall be in writing and shall be made via email or conventional mail. The Provider may post notices or messages through the Service to inform End-Users of changes to the Service, or the Terms and Conditions of service, or other matters of importance; such postings shall constitute sufficient written notice to End-User.

TRADEMARKS

The Service and product names identified in the applications and this document are trademarks or service marks of the Provider. You may not use any trademarks or service marks of the Provider without the Provider's prior written permission. All other products or services referenced in this site are the trademarks or service marks of their respective owners.

PROPRIETARY RIGHTS TO CONTENT

End-Users acknowledge that content, including but not limited to text, photographs, video, graphics, software, music, sound, or other material presented to End-User by The Service (collectively referred to as "Content"), is protected under the laws of copyright, trademark, patent, unfair competition or other applicable laws. Therefore, you are only permitted to use this Content as expressly authorized by the Provider. End-Users may not copy, reproduce, distribute, or create derivative works from this Content without the express written authorization to do so by the Provider.

LINKS TO OTHER SITES

The Service, or this document, may include hyperlinks to websites maintained or controlled by third parties. The Provider is not responsible for and does not endorse the contents of, use of, or any of the products or services offered in these third party sites.

LAWS

This Terms and Conditions agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflict of law provisions. Both End-User and The Service agree to submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts

If any provision(s) of these Terms and Conditions are held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. The Service's failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Provider in writing. End-User and the Provider agree that any cause of action arising out of or related to this Service must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred.




GOAL/QPC Software License Agreement


IMPORTANT - READ CAREFULLY BEFORE USING SOFTWARE


BY INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF THIS AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT IN THIS AGREEMENT. YOU SHOULD THEREFORE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THIS SOFTWARE.

This Software License Agreement ("Agreement") is a legal agreement between you and, if applicable, your company ("you" or "Licensee"), and GOAL/QPC Inc. ("Licensor"). The Licensor is the manufacturer of this software product ("Software"). The Software, as that term is used in this Agreement, includes MemoryJoggerLibrary™ software (including all files, databases, libraries and any additional programs, updates, modifications, fixes, patches, upgrades, and revisions provided to the Licensee), the associated media, any printed materials, and any "online" or electronic documentation ("Documentation"). Any third party or other software provided along with the Software that is associated with a separate end-user license agreement is licensed to the Licensee under the terms of that license agreement. By installing, copying, downloading, accessing, or otherwise using this Software, the Licensee agrees to be bound by the terms of this Agreement and the Licensee represents that he or she is authorized to accept the conditions of this Agreement individually and, if the Software is to be used by the Licensee's company, on behalf of the Licensee's company. If you do not agree to the terms of this Agreement or if you do not have the authority to accept the terms of this Agreement, you may not use or copy the Software, and you should destroy the Software and notify Licensor in accordance with Section 7 of this Agreement.

A manually signed license agreement between the Licensee and the Licensor, if applicable, will supersede any conflicting terms in this Agreement. The text of this Agreement can also be found in the on-line help system and printed from there.

  1. Evaluation

    If you have received a copy of the Software from Licensor or an authorized vendor, but you have not yet purchased a license to use the Software and an annual maintenance contract for the Software, the Licensor grants you a personal, non-transferable, non-exclusive, limited license to install, access, and use the Software for your own internal use solely for purposes of evaluating the Software for no more than sixty (60) days. When the Software is used on an evaluation basis, it may not have the full functionality described in its accompanying documentation.

  2. Grant of License and Permitted Uses

    1. Grant of License. Unless a valid license and an annual maintenance contract is provided by Licensor or an authorized vendor, this Agreement ONLY grants the end-user rights the right to use the Software for evaluation purposes in accordance with Section 1 above. Subject to the terms and conditions of this Agreement and any applicable terms and conditions of the purchase order or other agreement between the Licensee and Licensor that define the terms of the purchase and permitted use of the Software, which terms and conditions are incorporated herein by reference, Licensor grants to Licensee a limited, non-exclusive, non-transferable, license:

      1. For each INSTALLED (installed on a Licensees server) COPY of the Software authorized for by the Licensor or an authorized vendor, to install, operate and use each INSTALLED COPY of the Software in source code form solely for internal use by the authorized project team specified in the order for the Software; and
      2. For each HOSTED (installed on a GOAL/QPC server) COPY of the Software authorized by the Licensor or an authorized vendor, to operate and use such HOSTED Software for the term of this Agreement or to distribute to an end-user ("End-User") that agrees to be bound by the terms of this Agreement as an integral part of, and solely in conjunction with, a product or software program distributed by Licensee ("Developer Product") that is registered and approved by Licensor.
    2. Copies. The order confirmation that was delivered with this product specifies the number of INSTALLED COPIES and HOSTED COPIES of the Software that are permitted to Licensee. Except as otherwise expressly provided in this Agreement, Licensee may not copy the Software or any portion thereof, in whole or in part, except as is necessary to load, operate, use, and/or distribute the number of authorized copies of the Software specified in the applicable order confirmation. For each authorized INSTALLED COPY, the Licensee may make one (1) copy of the Software and the system configuration and other installation-specific files that are created during the installation and configuration process using the Software solely for archival purposes, provided that Licensee reproduces on the back-up copy all copyright notices and any other proprietary legends that are on or encoded in the Software. Licensee may transfer the INSTALLED COPY of the Software and set-up and other installation-specific files from one server to another at no additional license fee (there will be additional charges if Licensor assistance is required) provided that Licensee deletes the Software and configuration and other installation-specific files from the server no longer in use and from each back-up copy for that server.
    3. Reservation of Rights. Any rights not expressly granted in this Agreement are reserved to Licensor.
  3. Intellectual Property Restrictions and Other Limitations

    1. Restrictions on Copying and Modifying. Except as otherwise expressly provided in this Agreement, Licensee shall not (i) copy the Software, in whole or in part; or (ii) adapt, alter, create derivative works based on, modify, or translate the Software, in whole or in part.
    2. Open Source. Licensee shall not utilize the Software in conjunction with any Public Software in a manner which would require the Software to be disclosed or distributed in source code form or made available at no charge. "Public Software" means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models.
    3. Restrictions on Transfer. Licensee may not (i) sell, assign, distribute, lease, market, rent, lend, sublicense, transfer, make available, or otherwise grant rights to the Software, in whole or in part, to any third party in any form; or (ii) electronically transfer the Software, in whole or in part, from one computer to another over a network except as is necessary to load, operate and use one installation copy of the Software.
    4. Intellectual Property Notices and Marking. Licensee may not (i) obscure, remove or alter any of the trademarks, trade names, logos, patent or copyright notices or markings applied to or on the Software; or (ii) add any other notices or markings to the Software or any portion thereof.
    5. Limitations on Reverse Engineer, Decompilation, and Disassembly. Licensee may not reverse engineer, decompile, or disassemble the Software or any portion thereof or otherwise obtain or attempt to obtain the source code for the Software or any portion thereof. If Software is provided with source code, Licensee acknowledges that the source code is confidential to Licensor. Licensee shall preserve the confidentiality of the source code and ensure that the source code is not disclosed, distributed, or available to third parties. Licensee shall limit access to the source code to the single Licensed user as specified in the order confirmation.
    6. Restrictions on Separation of Components. The Software is licensed as a single product. Licensee may not separate or attempt to separate any of the components of the Software. The component parts of the Software may not be separated for use on more than one computer.
  4. Support for Software

    No product support for the Software is provided unless a separate written Terms and Conditions of Service agreement is entered into by Licensee and Licensor or an authorized vendor.

  5. Ownership of Software

    Licensor has and shall have sole and exclusive ownership of all right, title, and interest in and to the Software and all portions and copies thereof. In addition, Licensor shall have sole and exclusive ownership of any additional programs, updates, modifications, fixes, patches, upgrades, and revisions provided to Licensee for the Software and any copyrightable or patentable suggestions or ideas communicated by the Licensee to the Licensor. No title is transferred by this Agreement or by the payment of any fee. If title to the Software or any part or element thereof does not, by operation of law, vest in Licensor, Licensee hereby assigns to Licensor, or its designee all right, title and interest in and to the Software.

  6. Fees

    In partial consideration for the rights granted to Licensee herein, Licensee shall pay to Licensor or an authorized vendor the fees in accordance with the terms and conditions of the purchase order or other agreement(s) between the Licensee and Licensor or an authorized vendor that define the purchase and permitted use of the Software, which terms and conditions are incorporated herein by reference. Each party will be responsible for its own expenses incurred in rendering performance under this Agreement, including the cost of facilities, work space, computers and computer time, development tools and platforms, utilities management, personnel, supplies and the like.

  7. Failure to Execute Agreement

    If you are unwilling or unauthorized to execute this Software License Agreement, you should destroy the Software and all copies thereof and notify Licensor or an authorized vendor from which it was received within ten (10) days thereof.

  8. Term and Termination

    1. Term. This Agreement commences upon the earliest date that you install, copy, download, use the Software or otherwise accept the terms and conditions of this Agreement, provided that the terms and conditions of the purchase order or other agreement between the Licensee and Licensor or an authorized vendor defining the purchase and permitted use of the Software have been satisfied, and shall continue until terminated as provided herein.
    2. Termination. Licensee may terminate this Agreement at any time, with or without cause, by returning to Licensor or destroying the Software and all copies thereof and deleting or uninstalling the Software and all copies thereof, and certifying the same in writing to Licensor within ten (10) business days of termination.
    3. Effect of Termination. Termination of this Agreement shall not relieve either party of any obligation or liability accrued hereunder prior to such termination, nor affect or impair the rights of either party arising under this Agreement prior to such termination, except as expressly provided herein. Upon termination, the Licensee agrees to promptly return to Licensor or destroy the Software and all copies thereof and delete or uninstall the Software and all copies thereof, and certify the same in writing to Licensor within ten (10) business days of termination.
  9. Disclaimers and Remedies

    1. Disclaimer of Warranty. THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR SYSTEM, NETWORK, OR SOFTWARE.
    2. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY PORTION THEREOF, DEFECTS IN WARRANTY, ANY SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR'S LIABILITY EXCEED THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM BREACH OF WARRANTY, BREACH OF THIS AGREEMENT, OR OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST LICENSOR ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN THE LICENSEE SHALL HAVE LEARNED OF THE ALLEGED DEFECT, INJURY, OR LOSS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO EACH LICENSEE. THE PROVISIONS OF THIS SECTION 9 WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
  10. Confidentiality; Security and Audit Rights

    Licensee hereby acknowledges and agrees that the Software and Documentation constitute and contain valuable proprietary products and trade secrets of Licensor and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, Licensee agrees to treat (and take reasonable precautions to ensure that its employees treat) the Software and Documentation as confidential in accordance with the confidentiality requirements and conditions set forth in this Section 10, to enforce the limitations and restrictions set forth in Sections 2 and 3 of this Agreement, and to permit access only to End-Users authorized to use the Software. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (a) have been known publicly; (b) have been known generally in the industry before communication by the disclosing party to the recipient; (c) have become know publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (d) have been known otherwise by the recipient before communication by the disclosing party; or (e) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information. Licensee acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will (i) substantially diminish the value to Licensor of the trade secrets and other proprietary interests that are the subject of this Agreement; (ii) render Licensor's remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, Licensor shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.

  11. Indemnification

    1. Licensor. If Licensee receives a claim that the use of the Software infringes a patent, copyright, or other Intellectual property right, Licensee must promptly notify Licensor in writing. Licensor shall, at its own expense and option: (i) defend and settle such claim, (ii) procure Licensee the right to use the Software, (iii) modify or replace the Software to avoid infringement; or (iv) provide a pro rata refund of license fees paid for the applicable time period. In the event Licensor exercises option (i) above, it shall have the sole and exclusive authority to defend and/or settle any such claim or action.
    2. Licensee. Licensee agrees to indemnify, defend, and hold harmless Licensor and its directors, officers, employees, agents, successors and assigns from and against any and all third-party liabilities, claims, demands losses, damages, costs and expenses (including reasonable attorney's fees) which may be assessed against or incurred by Licensee relating to or arising out of: (i) any material breach of this Agreement by Licensee; (ii) any allegation that one or more of the Developer Products infringes the intellectual property rights of a third party; (iv) the use of the Software in a manner prohibited under this Agreement, or in a manner for which the Software was not designed; or (v) any negligent, grossly negligent or intentional misconduct or omission of Licensee or its directors, officers, employees, agents, successors and assigns in connection with its use of the Software.
    3. Exceptions. Licensor shall have no liability to Licensee under section 11(a) or otherwise for any claim or action alleging infringement based upon (i) any use of the Software in a manner other than as specified by Licensor; (ii) any combination of the Software by Licensee with other products, equipment, devices, software, systems, or data not supplied by an authorized vendor or Licensor (including, without limitation, any software produced by Licensee for use with the Software or the Developer Products) to the extent such claim is directed against such combination; (iii) any unauthorized modifications, enhancements or customization of the Software by any person other than Licensor; or (iv) use of other than a current release of the Software, if such infringement would have been avoided by use of a current release that Licensor has made available to Licensee free of charge prior to the notice of infringement.
  12. General Provisions

    1. Compliance. Licensee will make reasonable efforts to ensure compliance by all End-Users authorized to use the Software with this Agreement. Licensee grants Licensor the right to audit, at any time during regular business hours without prior notice, use of the Software to ensure compliance with this Agreement.
    2. U.S. Government Rights. If you are a branch or agency of the U.S. Government, then you acknowledge that the Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Any technical data provided with the Software is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire the Software with only the rights set forth in this Agreement.
    3. Governing Law. This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, as those laws are applied to contracts entered into and to be performed entirely in Massachusetts, without reference to its conflicts of laws provisions. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in the Massachusetts, and each party hereto irrevocably submits to the non-exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding. Licensee hereby acknowledges and agrees that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
    4. Severability. Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term or provision shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law, and the parties shall use their best efforts to substitute for the offending provision new terms having similar economic effect.
    5. Modification and Waiver. Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by a duly authorized representative of Licensor and Licensee. All waivers must be in writing. The failure of Licensor to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver of the future performance or exercise of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.
    6. Assignment. No right or obligation of Licensee under this Agreement may be assigned, delegated or otherwise transferred, whether by agreement, operation of law, or otherwise, without the express prior written consent of Licensor, and any attempt to assign, delegate or otherwise transfer any of Licensee's rights or obligations hereunder, without such consent, shall be void. Subject to the preceding sentence, this Agreement shall bind each party and its permitted successors and assigns.
    7. Remedies. The parties agree that any breach of this Agreement would cause irreparable injury for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation, injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of this Agreement, in addition to other remedies available to the parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as otherwise provided. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive. Licensee hereby waives any right or claim to which Licensee may be entitled to immunity or exemption from liability.
    8. Notice. All notices, statements and reports required or permitted by this Agreement shall be in writing and deemed to have been effectively given and received: (i) on the date shown on the return receipt if sent by registered or certified U.S. Mail, postage prepaid, with return receipt requested; or (ii) when delivered if delivered personally or sent by express courier service provided a receipt of delivery is obtained; or (iii) on the date shown on the email sent by Licensor to Licensee provided such email is not returned by the email system. Notices to Licensor shall be addressed as follows: GOAL/QPC Inc. 13 Branch Street, Suite 103, Methuen, MA 01844 USA
    9. Force Majeure. Neither party will be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials shortages, transportation delays, fires, floods, labor disturbances, riots, wars, or inability to obtain any export or import license or other approval of authorization of any government authority.
    10. Export Control. Licensee shall not export or allow the export or re-export of the Software or any portions thereof without compliance with all export laws and regulations of the U.S. Department of Commerce and all other U.S. agencies and authorities, including without limitation, the Export Administration Regulations of the U.S. Department of Commerce, Bureau of Export Administration, and, if applicable, relevant foreign laws and regulations.
    11. Relationship. Licensor and Licensee are independent contracting parties. This Agreement shall not constitute the parties as principal and agent, partners, joint venturers, or employer and employee.
    12. Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Massachusetts or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
    13. Survival of Terms. The provisions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 (and any other provision which so indicates) shall survive termination of this Agreement.
    14. Entire Agreement. This Agreement constitutes the entire, full and complete Agreement between the parties concerning the subject matter hereof, and they collectively supersede all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties. This Agreement prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter.

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