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END USER LICENSE AGREEMENT (EULA)
PLEASE READ CAREFULLY
The Services you (the “Customer”) are about to download, install, run, access and/or use are provided by OutThink Limited, incorporated and registered in England with company number 09643149 with offices located at 80 Cheapside, London, EC2V 6EE (“OutThink”) or one of its authorised resellers (“Channel Partners”), and are subject to the terms of this End User License Agreement (“EULA”). By proceeding to download, install, run, access and/or use the Services, you confirm that you accept and agree to be bound by the terms of this EULA, unless mutually agreed otherwise in writing; If Customer has fully executed a Master Agreement with OutThink, such Master Agreement will govern the access and use of the Services.
You should print a copy of this EULA for future reference.
1. Definitions; EULA OVERVIEW.
1.1 Definitions.
In this EULA, the following capitalised words and phrases will have the following meanings:
(i) “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least fifty percent (50%) of the issued share capital of a company or the legal power to control the operations of the entity in question.
(ii) “Authorised User” means each of Customer’s employees, agents, representatives, and/or contractors who are authorised by the Customer to use the Services.
(ii) “Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks are open for business.
(iv) “Cloud Services” means, collectively, the OutThink cloud services (e.g., OutThink software as a service offerings and related OutThink Products) listed in an Order Form.
(v) “Confidential Information” means any and all information relating to or disclosed in the course of this EULA, which is or should be reasonably understood to be confidential or proprietary to the Discloser, including the OutThink Products (in the case of OutThink). A Recipient’s obligation to protect Confidential Information does not apply to any Confidential Information that the receiving party can demonstrate: (i) was publicly available at the time of disclosure to it; (ii) was published or otherwise became publicly available after disclosure to the receiving party, through no fault of its own; (iii) was in the possession of the receiving party at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to Confidential Information of the disclosing party, as proven by dated written records. For clarity, Customer-Provided Technology, and OutThink’s obligations with regard thereto, are addressed under Section 2.2, and not this subsection (vi) or Section 6.
(vi) “Content” means all informational text, data, software documentation, photographs, graphics, audio, video, graphics, messages, files, documents, images, reports, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
(vii) “Customer Applications” means all software programs, including any source code for such programs, that Customer or Authorised Users provide and load onto, or use in connection with the Services (including through an OutThink-proprietary API). The Services, including the OutThink Products, as well as any derivative works thereof, including any and all Intellectual Property Rights therein or associated therewith, do not constitute Customer Applications.
(viii) “Customer Content” means Content, other than User Data, which Customer submits, posts, stores, displays, uploads or transmits through on or through the Cloud Services.
(ix) “Customer-Provided Technology” means the Customer Applications, Customer Content, and/or User Data that Customer uploads to the Cloud Services or requests that OutThink utilise in connection with the provision of Services.
(x) “Data Center Region” refers to the geographic region in which the Services Environment is physically located. The Data Center Region applicable to the Cloud Services may be set forth on the Order Form for such Cloud Services, or if not specified, will be selected by OutThink.
(xi) “Discloser” means a party disclosing Confidential Information to a Recipient hereunder.
(xii) “Documentation” means any User Guides or technical specification documentation that OutThink provides to its customers from time to time in connection with the Services. For clarity, general information on OutThink’s website, marketing collateral, sales proposals, and/or information contained in any response to a customer RFx do not constitute Documentation.
(xiii) “Effective Date” means the first date of the Subscription Term, which is when we process a Customer or a Channel Partner order, which is when we receive a signed quote.
(xiv) “Fees” means any and all amounts payable by Customer to OutThink or to a Channel Partner pursuant to an Order Form.
(xv) “Force Majeure Event” means any unforeseen event that impairs a party’s ability to perform its obligations hereunder, where such event reasonably outside such party’s control. Examples of Force Majeure Events include acts of God; acts of a public enemy; acts of terrorism, acts of any government; fires; floods; pandemics, epidemics; quarantine restrictions; freight embargoes; unusually severe weather conditions, and the other party’s delay or failure in performing its obligations, where such performance is essential to the affected party’s performance hereunder (provided that, in every case, the delay or failure to perform is without the fault or negligence of the delayed or failing party, and that such delayed or failing party makes reasonable efforts to cure the delay or failure as soon as possible after the occurrence of the unforeseen event).
(xvi) “Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (a) patent rights and rights under patent applications; (b) rights associated with works of authorship including copyrights and moral rights, and any applications therefor; (c) rights relating to the protection of trade secrets; (d) rights in trademarks, service marks, logos, trade dress, trade names, and design patent rights, and any applications therefor, and (e) any right analogous or related to the foregoing and any other proprietary rights relating to intangible property.
(xvii) “Order Form” means the Customer’s or Channel Partner’s order, or accepted quote for the Cloud Services.
(xviii) “Personal Data” means “personal data” as defined in the General Protection Regulation (EU) 2016/679 and any amendment or replacement to it (including any national law or regulation which implements it).
(xix) “Recipient” means a party receiving Confidential Information from a Discloser hereunder.
(xx) “OutThink Products” means the software products owned or licensed by OutThink and to which OutThink grants Customer access as part of the Cloud Services, including Documentation, OutThink Content, and any corrections, updates, new versions, and new releases of the same, to the extent provided as part of the Cloud Services. The term “OutThink Products” does not include OutThink-Provided Third Party Technology.
(xxi) “OutThink-Provided Third Party Technology” means any third party software, services, Content, or products that OutThink incorporates in or bundles with the Cloud Services.
(xxii) “Separate Terms” means the third party-specified terms applicable to the use of OutThink-Provided Third Party Technology, and which are found in the User Guide, readme or notice files.
(xxii) “Services” means the Cloud Services and Support provided pursuant to an Order Form.
(xxiv) “Subscription” means a subscription for Cloud Services pursuant to an Order Form.
(xxv) “Subscription Term” means the duration of a Subscription set forth on an Order Form.
(xxvi) “Support” means OutThink’s standard support services for the Cloud Services.
(xxvii) “User Account” means a Cloud Service account that is assigned to an Authorised User and accessible by such an Authorised User.
(xxviii) “User Data” means electronic data of Authorised Users uploaded or input into the Cloud Services by Customer or the Authorised Users (on Customer’s behalf).
(xxix) “User Guide” means the user guides and other related user documentation provided by OutThink for each of the Cloud Services, as updated from time to time.
(xxxi) “Virus” means any item or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2. PROVISION OF SERVICES.
2.1 Provisioning of Cloud Services.
During the Subscription Term and subject to the terms and conditions of this EULA and each Order Form (including Customer’s or Channel Partner’s obligation to pay all applicable Fees when due), OutThink will: (a) make the Cloud Services available to Authorised Users for use in connection with Customer’s internal business operations on a subscription basis; and (b) maintain and support the Cloud Services pursuant to OutThink’s standard Support terms and conditions. OutThink will also provide the OutThink Products that power the Cloud Services. OutThink may modify the Cloud Services from time to time and will, except with respect to OutThink-Provided Third Party Technology, endeavour to ensure that any such modification does not materially diminish the core functionality, performance, security, or stability of the Cloud Services overall during an applicable Subscription Term. Except as otherwise expressly set forth in the Order Form for certain Cloud Services offerings (e.g., a private cloud hosted at Customer’s owned or managed facility), Customer acknowledges and agrees that OutThink has no delivery obligation for OutThink Products and will not ship copies of such products to Customer as part of the Services. In addition, as is customary with cloud services offerings, Customer is required to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, “Patches”) necessary for the proper function and security of the Cloud Services and OutThink Products. Unless otherwise agreed upon by the parties, all applicable product, order, customer, or other information related to the Cloud Services and OutThink Products will be communicated electronically using OutThink’s standard formats and in conformity with the User Documentation.
2.2 Customer-Provided Technology.
(i) Provision and Access. To enable OutThink to provide the Services, Customer, on behalf of itself and Authorised Users, grants OutThink and its agents the unrestricted, non-fee-bearing right to: (a) use, process, store, and transmit Customer-Provided Technology over public networks in various media worldwide, for the duration of the Subscription Term plus any additional post-termination period during which OutThink provides Customer access to the Cloud Services to retrieve an export file of such Customer-Provided Technology; (b) make such modifications to the Customer-Provided Technology as are necessary to conform and adapt such Customer-Provided Technology to the technical requirements of connecting networks, devices, services or media associated with the Services; and (c) allow third party Customer-Provided Technology providers to access the Cloud Services, including applicable Customer-Provided Technology, as required for the interoperation of such Customer-Provided Technology with the Cloud Services and/or to confirm Customer’s compliance with the applicable licensing terms and conditions under which the Customer-Provided Technology is provided to Customer. Customer is responsible for obtaining, at Customer’s sole expense, any rights and consents from third parties (including Authorised Users) necessary for the Customer-Provided Technology, User Data, and other products and services that Customer uses with the Services. Customer represents and warrants that it has the right and authority to provide the Customer-Provided Technology to OutThink, and that OutThink has the right and authority to access and use the Customer-Provided Technology to provide the Services and for the other purposes described in and contemplated by this EULA.
(ii) Use. OutThink will not be responsible for any use, disclosure, modification or deletion of such Customer-Provided Technology resulting from any such access by third party program providers or for the accessibility or interoperability of such third party programs in or with the Cloud Services or OutThink Products. For greater certainty, the modification of such Customer-Provided Technology by OutThink is limited to such technical modification as is required to allow such Customer-Provided Technology to be used and accessed through the Cloud Services, and will not modify any Customer trademarks, trade names, logos and notices, or any Customer product images or descriptions.
(iii) Issue Resolution. Customer will promptly handle and resolve any claims relating to the Customer-Provided Technology, including any notice sent to Customer claiming that any Customer-Provided Technology violates any rights; (c) maintain appropriate security, protection and backup copies of the Customer-Provided Technology; (d) immediately notify OutThink of any unauthorised access, use or disclosure of (i) any Customer-Provided Technology if in OutThink’s possession, or (ii) any User Account, in each case that comes to Customer’s attention; and (e) provide OutThink with such reasonable cooperation and assistance related to any investigation and remediation of such unauthorized access, use or disclosure as OutThink may reasonably request.
2.3 How OutThink May Use Customer’s Personal Information. Under data protection legislation, OutThink is required to provide Customer with certain information about who it is, how it processes the personal data of those individuals who use the Cloud Services and for what purposes and those individuals’ rights in relation to their personal data and how to exercise them. This information is provided in https://outthink.io/privacy-policy/ and Customer must read this information.
2.4 Data Aggregation. OutThink may compile statistical and other information related to the performance, operation, and use of the Services, and use such information for security and operations management, to create statistical analyses, and for research, development, and reporting purposes. Customer acknowledges and agrees that OutThink may freely use the User Data (for greater certainty, excluding any Personal Data) on a generic, anonymised, aggregate basis along with OutThink’s use of similar data from OutThink’s other customers, such that there is no way to identify Customer as the source of User Data (such generic, anonymised, aggregate data, the “Aggregated Data”), for any purpose relating to OutThink’s business, including: (a) to analyse, calibrate, and improve the performance and usability of the Cloud Services and OutThink Products, (b) to develop unique products and services, and (c) for general industry analysis and reporting. Except as otherwise stated in this EULA, OutThink will not modify, disclose, or access non-aggregated User Data except as required by law.
2.5 Security. OutThink will employ and maintain industry standard: (a) administrative, physical and technical safeguards in accordance with OutThink’s standard security policies, procedures, and controls as amended from time to time, a current copy of which will be made available to Customer upon request and designed to protect against the destruction, loss, alteration or unauthorised access, use or disclosure of User Data, and (b) technologies designed to prevent the Cloud Services from containing any Virus. OutThink’s Data Processing Agreement (the “DPA”) in effect as of the Effective Date describes the parties’ respective roles for the processing of Personal Data that Customer and Authorised Users provide to OutThink as part of the Services. OutThink will act as a data processor and will act on Customer’s reasonable instruction concerning the treatment of Personal Data residing in Customer’s designated Cloud Services environment, as specified in this EULA, and the applicable Order Form. Without limiting the generality of the foregoing, Customer: (i) will ensure that User Data will not include any sensitive or special data that imposes specific data security or data protection obligations on OutThink in addition to or different from those described herein (or the DPA); (ii) agrees to provide any notices and obtain any consents related to Customer’s use of the Services and OutThink’s provision of the Services to Customer, including those related to the collection, use, processing, transfer and disclosure of Customer-Provided Technology (including Personal Data); and (iii) acknowledges that, in light of OutThink’s ISO 27001 certification, and given the nature of cloud-based multi-tenant services, it is infeasible for OutThink to accommodate conflicting data security requirements from multiple OutThink customers, so failure to accommodate any Customer data security, technical, or operational request will not be deemed a breach of this EULA and OutThink will have no liability therefor.
2.6. Access Rights Granted to Customer.
(i) Cloud Services. During the Subscription Term and subject to the terms and conditions of this EULA and each Order Form (including Customer’s or Channel Partner’s obligation to pay all Fees hereunder when due), OutThink grants Customer a limited, non-exclusive, non-assignable, non-sublicensable, royalty-free, worldwide right during the relevant Subscription Term for Customer and its Authorised Users to access and use the Cloud Services and associated OutThink Products (via the Cloud Services) as made available by OutThink, solely for Customer’s internal business purposes and not, for clarity, for resale or use in a timesharing or service-bureau environment. Customer is responsible for all Authorised User’s compliance with this EULA, such that any act or omission by an Authorised User that is inconsistent with this EULA will be attributable to Customer.
(ii) OutThink-Provided Third Party Technology. As part of the Cloud Services, OutThink may provide Customer with access to OutThink-Provided Third Party Technology. For clarity, the owner, author, or provider of such technology retains all ownership and intellectual property rights therein, and Customer’s rights to use the same are subject to, and governed by, the terms applicable to such technology.
2.7 Access Conditions.
(i) Technical Requirements. To access and use the OutThink Products, Customer must ensure that each Authorised User has access to an internet connection and otherwise meets the minimum technical requirements set out in the Documentation.
(ii) Authorised User Accounts. Customer will access and manage the OutThink Products by means of user accounts which are assigned to each Authorised User (each, a “User Account”). Customer is responsible for all activity occurring under such User Accounts, and for monitoring compliance with such account limitations, and will abide by all applicable local, provincial/state, national and foreign laws in connection with Customer’s use of the Cloud Services and OutThink Products, including those related to data privacy, international communications, and the transmission of technical or Personal Data. Customer will ensure that it assigns appropriate passwords to each such User Account and will keep such passwords secure. Customer will, and will cause the Authorised Users, to: (i) notify OutThink immediately of any unauthorised use of any password or User Account or any other known or suspected breach of security; and (ii) not impersonate another person or provide false identity information to gain access to or use the Cloud Services or OutThink Products. Without limitation, OutThink may immediately remove or suspend any User Account affected by the activities described in the foregoing clauses (i) or (ii). OutThink is not responsible for any harm caused by Customer’s users, including individuals who were not authorised to have access to the Services but who were able to gain access because usernames, passwords or accounts were inadequately protected by Customer or Authorised Users.
(iii) Scope of Use. The Cloud Services may be accessed by Authorised Users only in accordance with their User Account specified on an Order Form. Neither Customer nor any Authorised User acquires any right or license to use the Services, including the OutThink Products, in excess of the scope and/or duration of the Services stated in the applicable Order Form. At the end of the applicable Subscription Term, Customer’s and all Authorized Users’ right to access and use the Services will terminate.
(iv) Compliance with Laws. Customer will be solely responsible for ensuring that its collection, use and disclosure of all User Data, including with respect to Personal Data, and any other data regarding Customer’s use of the Cloud Services OutThink Products, is in compliance with applicable laws.
2.8 Access Restrictions. Customer or Channel Partner will not do or attempt (nor authorize or permit any third party, including Authorized Users) to do any of the following:
(i) access or use, or permit any third party to access or use, the Cloud Services or OutThink Products, except as expressly permitted herein (including in the applicable Order Form);
(ii) copy, frame or mirror any part or Content of the Cloud Services or OutThink Products including the look and feel of the Cloud Services or OutThink Products or any part thereof, or any ideas, features, functions or graphics of the Cloud Services or OutThink Products;
(iii) copy, reproduce, distribute, republish, download, display, post, transmit, translate, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or access for a competitive purpose, the Cloud Services or OutThink Products or any part thereof, or otherwise attempt to discover any source code or modify the Cloud Services or OutThink Products in any manner or form (the foregoing prohibition includes a review of data structures or similar materials produced by programs), or sell, resell, rent or lease the Cloud Services or OutThink Products or otherwise commercially exploit any part of the Cloud Services or OutThink Products or make any part of the Cloud Services or OutThink Products available to a third party (including any person or entity who is not an Authorized User), including as a service bureau;
(iv) use the Cloud Services or OutThink Products (a) to store or transmit materials which are infringing, libelous, or otherwise unlawful or tortious; offensive; or in violation of Intellectual Property Rights or privacy rights, or (b) otherwise in violation of the User Guides;
(v) use the Cloud Services or OutThink Products to upload, email, post, publish, or otherwise transmit any material for any purpose that may: (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any false, defamatory, harassing, or obscene material; or (c) promote bigotry, racism, hatred, or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters;
(vi) use efforts less than industry standard efforts to prevent the storage or transmittal of Viruses through the Cloud Services;
(vii) interfere with or disrupt the integrity or performance of the Cloud Services or OutThink Products;
(viii) attempt to gain unauthorised access to the Cloud Services or OutThink Products or their related systems or networks;
(ix) use or knowingly permit the use or disclosure of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Cloud Services or OutThink Products, including through network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, or similar activities; or
(x) remove or modify any program markings or any notice of OutThink’s or its licensors’ proprietary rights.
In addition to any other rights afforded to OutThink under this EULA, OutThink reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. OutThink shall have no liability if OutThink takes such action. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Customer-Provided Technology.
2.9 Data Centre Region. If the Order Form specifies the Data Centre Region in which the Cloud Services will be provided, such region is where Customer’s Cloud Services environment will be provided and supported; otherwise, OutThink may select a Data Centre Region in its sole discretion provided that such selection complies with the data processing agreement between the parties. OutThink and its Affiliates may perform aspects of Cloud Services, such as service administration and support, as well as other Services (including disaster recovery), from locations and/or through the use of subcontractors, worldwide.
2.10 Warranty Offered in Lieu of Acceptance. The Services are deemed irrevocably accepted upon delivery and/or performance. However, the foregoing does not affect or limit OutThink’s warranty obligations (or Customer’s rights relating thereto), as and to the extent set forth in Section 7 (“Warranty; Disclaimer”).
2.11 Trial Subscriptions. If Customer or Channel Partner receives free access or a trial, evaluation, or similar subscription to any of the Cloud Services (a “Trial Subscription”), they may use the Cloud Service(s) in accordance with the terms and conditions of this EULA (except as otherwise set forth below) for the period designated in the Order Form or otherwise by OutThink (and if not designated, then for thirty (30) days) (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Services. Customer or Channel Partner may not use a Trial Subscription for any other purposes. At the end of the Trial Period, the Trial Subscription will expire, and all Customer-Provided Technology and User Data will be permanently deleted, unless Customer purchases a paid subscription to a Cloud Service (provided that the paid subscription is for the same Cloud Service that was provided as part of the Trial Subscription). If Customer purchases a full subscription, all of the terms and conditions in this EULA will apply to such purchase and the use of the Cloud Service. Each party has the right to terminate a Trial Subscription at any time. NOTWITHSTANDING ANYTHING IN THIS EULA TO THE CONTRARY, OUTTHINK WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS (WHICH, FOR CLARITY, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”).
3. Ownership and Intellectual Property.
3.1 Customer Ownership. As between the parties, Customer retains all ownership and Intellectual Property Rights in and to Customer-Provided Technology.
3.2 OutThink Ownership.
(ii) Trademarks. Without limiting the generality of subsection (i) above, as between the parties, all OutThink trademarks, trade names, logos and notices present on the Cloud Services, OutThink Products, Documentation, and OutThink-Provided Third Party Technology are OutThink property and will be preserved and not deliberately defaced, modified or obliterated. Neither party will use any trademarks, trade names, logos and notices of the other party without the express prior written authorisation of such other party, provided, however, that Customer agrees that OutThink may include Customer’s name and other indicia in its lists of customers of OutThink in promotional and marketing materials.
4. Fees and Payment.
4.1 Fees; Payment. Customer will pay all Fees or charges to OutThink or the Channel Parter as the case may be in accordance with Order Form and this clause 4. Fees are a factor of subscription volume, length of service term, user quantity, and other commercial variables; however, without limiting the foregoing, Customer acknowledges and agrees that Customer has not relied on the future availability of any Services in entering into the payment obligations hereunder. Except as otherwise specified in this EULA or an Order Form or SOW: (i) Fees are quoted and payable in GBP, USD or EUR; (ii) Fees are based on services purchased and not actual usage; (iii) payment obligations are non-cancellable, and Fees paid are non-refundable; and (iv) the number of subscriptions purchased cannot be decreased during the relevant Subscription Term. If an Order Form specifies any limits for the applicable Service, Customer agrees not to exceed such limit(s); otherwise, OutThink will charge for, and Customer agrees to pay for such additional access. The Customer shall on the Effective Date provide to OutThink or Channel Partner valid, up-to-date and complete credit card details or approved purchase order information acceptable to OutThink and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides: (i) its credit card details to OutThink, the Customer hereby authorises OutThink to bill such credit card as specified in the Order; (ii) its approved purchase order information to OutThink, OutThink shall invoice the Customer and Customer shall pay each invoice in accordance with the Order.
4.2 Taxes. All Fees are exclusive of all value added tax or any equivalent taxes chargeable for the time being in the UK or elsewhere (VAT), levies, or duties, and Customer will be responsible for payment of all such taxes, levies, or duties, excluding taxes based solely on OutThink’s income. Customer will pay all Fees free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of Fees will be Customer’s responsibility, and Customer will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.
4.3 Effect of Nonpayment. If OutThink has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of OutThink: (i) OutThink may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and OutThink shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (ii) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of HSBC Holdings plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
4.4 Invoice Disputes. If Customer in good faith disputes a portion of an unpaid invoice, Customer will notify OutThink within thirty (30) days from the date of such unpaid invoice. Customer agrees to provide reasonable supporting documentation to OutThink concerning any amount disputed, along with Customer’s dispute notice, and Customer acknowledges and agrees that invoices issued in accordance with the Order Schedule will be presumed to be valid and payable. The amount not in dispute (i.e., not subject to a timely dispute notice) shall be paid in accordance with the terms of this EULA. Once an invoice dispute is resolved, Customer will pay the agreed-upon amount within thirty (30) days of dispute resolution. If necessary, OutThink will reissue an invoice for the undisputed and disputed portions of the invoice to facilitate Customer’s payment of the undisputed invoice amount.
5. Term and Termination.
5.1 Term. This EULA is effective during the period commencing as of the Effective Date and expiring on the last day of the last Subscription Term under any Order Form entered into under this EULA. With regard to each Order Form, unless the Order Form specifies otherwise, if this EULA or such Order Form has not terminated early in accordance with its terms, the Subscription Term will renew for a renewal Subscription Term equal in duration to the Subscription Term then ending (but not less than one (1) year), at OutThink’s then-current list price fees (or such other Fees as the parties may mutually accept), for as long as OutThink continues to provide the applicable Service. However, if either party provides written notice of nonrenewal at least thirty (30) days prior to the expiration of the then-current Subscription Term, the applicable Service and associated Order Form will not renew. OutThink reserves the right to discontinue any Service component effective as of the conclusion of Customer’s then-current Subscription Term.
5.2 Termination. Either party may terminate this EULA in whole or in part (including all related Order Forms or SOWs) immediately if the other party) fails to cure any material breach of this EULA within thirty (30) days after written notice of such breach.
5.3 Effects of Termination.
(i) Upon expiration or termination of this EULA (or a for any reason: (a) any amounts owed to OutThink under this EULA before such expiration or termination will be immediately due and payable; (b) Customer will immediately cease any and all use of the Cloud Services and OutThink Products, and destroy all copies of Documentation, and OutThink-Provided Third Party Technology and so certify to OutThink in writing; and (c) each Recipient will return Discloser’s Confidential Information, in whatever form it may exist, and all copies thereof, of the other party (including with respect to Customer, all User Data and Customer-Provided Technology) that it obtained during the course of this EULA, or, as directed by the other party, destroy such Confidential Information; and if so requested, must certify in writing to the other party that it has done so.
(ii) Upon request by Customer made either before or within thirty (30) days after the effective date of expiration or termination of this EULA (or an Order Form), OutThink will make available to Customer a complete download of the associated Customer-Provided Technology and User Data in its then-current file or database format, or as such other format as the parties may agree in writing. For clarity, any Services provided by OutThink to Customer, including the downloading set out above, and any assistance in exporting the User Data, will be billable at OutThink’s then-current time and materials rates. Customer agrees that OutThink will not be liable to Customer, any Authorised User, or any other third party for any cessation of access to the Services or OutThink Products following the expiration or termination of this EULA or any Order Form, including for any damages arising out of any party’s reliance on the continued availability of the Services or OutThink Products.
5.4 Suspension. In addition to its other rights under this EULA, OutThink may immediately suspend or terminate access to the Services and/or OutThink Products by Customer or any Authorized User(s) in order to: (a) prevent damage to or degradation of the Services or OutThink Products; (b) comply with any applicable law, court order, or other governmental request or order, upon written notice; or (c) respond to any non-payment of payments due by Customer as set out herein (except to the extent subject to a good-faith dispute). If suspended, OutThink will promptly restore use of the suspended Services and/or OutThink Products to Customer as soon as the event giving rise to the suspension has been resolved to the reasonable satisfaction of OutThink. Where the event giving rise to the suspension has been not been resolved to the reasonable satisfaction of OutThink within thirty (30) days of the effective date of such suspension, OutThink may terminate this EULA and any and all associated Order Form(s) and SOW(s) upon prior written notice.
5.5 Survival. The following Sections of this EULA will survive the expiration or early termination of this EULA or any individual Order Form or SOW: 1 (“Definitions; EULA Overview”), 2.2 (“Customer-Provided Technology”), 2.3 (“Data Aggregation”), 2.4 (“Security”), 2.7 (“Access Conditions”), 3 (“Ownership and Intellectual Property”), 4 (“Fees and Payment”), 5.3 (“Effects of Termination”), 5.5 (“Survival”), 6 (“Confidentiality”), 7.2 (“Warranty Disclaimer”), 8 (“Limitation of Liability”), and 9 (“General”).
6. CONFIDENTIALITY. Recipient will use the same care to prevent disclosing Discloser’s Confidential Information as Recipient employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care, and the parties acknowledge and agree that in the case of User Data in the Cloud Services, OutThink’s compliance with Section 2.4 (“Security”) meets such standard. Except as contemplated by this EULA, including for the purpose of providing the Services and OutThink Products, Recipient will not make any use of Discloser’s Confidential Information or refuse to promptly return, provide a copy of, or destroy Discloser’s Confidential Information upon Discloser’s request (provided that OutThink will be excused from its performance hereunder to the extent that such Confidential Information was required for such performance). Recipient will immediately notify Discloser upon gaining knowledge of any disclosure, loss, or use of Discloser’s Confidential Information in violation of this EULA. Recipient will share Discloser’s Confidential Information with Recipient’s employees and contractors only on a “need to know” basis in connection with performance of Discloser’s obligations under this EULA. If Recipient is served with a court order compelling disclosure of any Discloser Confidential Information, it will, to the extent allowed under law, provide Discloser with immediate notice thereof, provide Discloser with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with Discloser in any opposition to disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Cloud Services OutThink Products will not be a breach of this Section, unless such breach is the direct result of the breach by OutThink of Section 2.4 (“Security”).
7. WARRANTIES; DISCLAIMERS.
7.1 OutThink Warranties.
(I) Cloud Service. OutThink warrants to Customer that the applicable Cloud Service platform, when used in accordance with the instructions in the User Guide and this EULA, will materially conform to the features and functionality for such platform expressly set forth in the applicable Documentation. If Customer notifies OutThink of a breach of the foregoing warranty, OutThink’s entire liability and Customer’s sole and exclusive remedy for such breach will be, at OutThink’s election, to either: (A) reperform, modify, or replace the Service so that it so conforms to such warranty; or (B) provide a refund of the Fees paid for the affected Cloud Service platform, and solely as to the refunded Cloud Service, this EULA, and Customer’s right to access such Cloud Service will immediately terminate. OutThink will have no obligation under this EULA to correct, and OutThink makes no warranty with respect to, errors caused by or relating to: (1) use of the Services in a manner inconsistent with the Documentation or this EULA; or (2) third party hardware or software misuse, modification, or malfunction.
7.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, OUTTHINK MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, INCLUDING THOSE RELATING TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, OUTTHINK PRODUCTS, DOCUMENTATION, AND OUTTHINK-PROVIDED THIRD PARTY TECHNOLOGY. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED BY OUTTHINK TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, OUTTHINK MAKES NO WARRANTY THAT THE SERVICES, OUTTHINK PRODUCTS, DOCUMENTATION, AND OUTTHINK-PROVIDED THIRD PARTY TECHNOLOGY WILL BE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY CUSTOMER-SPECIFIC REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT THE SERVICES, OUTTHINK PRODUCTS, DOCUMENTATION, AND OUTTHINK-PROVIDED THIRD PARTY TECHNOLOGY ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY AND THAT OUTTHINK MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, AND WILL HAVE NO LIABILITY, IN CONNECTION WITH ANY USE OF THE SERVICES, OUTTHINK PRODUCTS, DOCUMENTATION, AND OUTTHINK-PROVIDED THIRD PARTY TECHNOLOGY IN SUCH SITUATIONS. YOU ACKNOWLEDGE THAT OUTTHINK DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. OUTTHINK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. OUTTHINK IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER-PROVIDED TECHNOLOGY OR USER DATA. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT ALTHOUGH THE SERVICES PROVIDED BY OUTTHINK INCLUDE DMARC CONFIGURATION, OUTTHINK IS NOT IN ANY WAY RESPONSIBLE FOR THE DMARC PROTOCOL, INCLUDING ANY SECURITY BREACHES OR PROBLEMS WITH IMPLEMENTATION THAT MAY ARISE, THESE BEING OUTSIDE OF OUTTHINK’S CONTROL.
8. LIMITATION OF LIABILITY. NEITHER OUTTHINK NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR (I) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES; OR (II) ANY LOSS OF USE, LOST DATA, FAILURE OF THIRD PARTY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE LIABILITY OF OUTTHINK (INCLUDING ITS LICENSOR AND SUPPLIERS, TO THE EXTENT, IF ANY, LIABLE HEREUNDER) FOR ANY CLAIMs UNDER THIS EULA WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO OUTTHINK FOR THE SERVICE UNDER THIS EULA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS EULA WILL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA OR OF ANY LIMITED REMEDY CONTAINED HEREIN. SUCH DIRECT DAMAGES WILL BE THE FULL EXTENT OF MONETARY LIABILITY OF OUTTHINK AND, IF APPLICABLE, ITS LICENSORS AND SUPPLIERS, UNDER THIS EULA, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST OUTTHINK, AND WILL CONSTITUTE CUSTOMER’S SOLE MONETARY REMEDY. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS EULA WOULD BE SUBSTANTIALLY DIFFERENT. NOTHING IN THIS EULA SHALL LIMIT OR EXCLUDE OutThinks’s LIABILITY FOR death or personal injury resulting from negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by English law.
9. GENERAL
9.1 Audit. Customer acknowledges and agrees that (a) the Cloud Services and OutThink Products include records reflecting and tracking the number, login accounts, and access logs of Authorized Users; (b) such records will be accessible and open at all times to OutThink or its designee for inspection for the purposes of ensuring Customer’s compliance with the terms and conditions of this EULA. In addition, Customer will maintain, at Customer’s executive offices, reasonable files, records, and books of accounts relating to Customer’s access to and use of the Services, including at a minimum, all information and data required to verify Customer’s compliance with this EULA. Customer will permit OutThink or its representatives to review Customer’s relevant records and audit usage to verify compliance with this EULA no more than once every twelve (12) months, and at any time (with reasonable notice) if a prior review has revealed a non-compliance (such as an underpayment or other breach of this EULA). Inspections at Customer’s premises will be conducted during normal business hours and upon reasonable notice. Customer will promptly pay any underpayment of amounts due, plus if the underpayment exceeds 5% of the actual amount due, Customer will pay interest in an amount equal to one and one-half percent (1.5%) of the underpayment per month, or the maximum legal rate, if less, calculated monthly from the date the underpayment was due until the date payment is made, as well as remedy any noncompliance indicated by such audit. All audits will be conducted at OutThink’s expense, except that if the results reveal an underpayment of ten percent (10%) or more, Customer will also reimburse OutThink for the reasonable cost of the audit. In lieu of such audit, and upon reasonable request of OutThink at any time, Customer will certify its compliance with the terms of this EULA, and Customer acknowledges and agrees that OutThink may rely on the accuracy and completeness of such certification; however, if OutThink has reason to believe that any information in such certification is inaccurate or complete, OutThink may conduct an audit as described above.
9.2 Force Majeure. In no event will a party be liable to the other party (other than with respect to the payment of Fees due and payable under this EULA), for any delay or failure to perform in breach of any of the terms of this EULA to the extent that such breach results from a Force Majeure Event.
9.3 No third-party rights. This EULA does not confer any rights on any person or party (other than the parties to this EULA) whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
9.4 Assignment. OutThink may assign, transfer or sub-contract its rights and obligations under this EULA to another organisation, but this will not affect Customer’s rights or OutThink’s obligations under this EULA. Customer may only transfer its rights or obligations under this EULA to another person if OutThink agrees in writing.
9.5 Governing Law and Jurisdiction. This EULA and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA or its subject matter.
9.6 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this EULA or the activities contemplated hereunder. OutThink is not bound by any terms or conditions between Customer and any third party.
9.7 Severability. If any part of this EULA is determined to be invalid or unenforceable pursuant to applicable law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement will continue in effect. However, for clarity, Section 9 will remain in effect notwithstanding any determination that any provision in Section 7 is invalid or unenforceable.
9.8 Segmentation. The purchase of Cloud Services or other service offerings, programs, or products are all separate offers and separate from any other order. Customer understands that Customer may purchase Cloud Services or other service offerings, programs, or products independently of any other order. Customer’s obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.
9.9 Communication. OutThink may update the terms of this EULA at any time on notice to Customer. Customer’s continued use of the Services following the deemed receipt and service of the notice under this clause shall constitute Customer’s acceptance to the terms of this EULA, as varied. If Customer does not wish to accept the terms of the EULA (as varied) Customer must immediately stop using and accessing the Services on the deemed receipt and service of the notice. If OutThink needs to contact the Customer, it will do so by email or by pre-paid post to the address provided in accordance with the Order Form or registration for the Services. OutThink’s email address is hello@outthink.io. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have neem delivered in the normal course of post.
9.10 Modification; Waiver. No modification or amendment of any provision of this EULA will be effective unless agreed by both parties’ duly authorized representatives in writing, and no waiver of any provision of this EULA will be effective unless in writing and signed by a duly-authorized representative of the waiving party. No failure or delay by either party in exercising any right, power, or remedy under this EULA, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
9.11 Remedies. Except where this EULA specifies a sole remedy, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Cloud Service and OutThink Products contain OutThink’s valuable trade secrets and proprietary information, that any breach of this EULA relating thereto will constitute harm to OutThink for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy. Each party acknowledges and agrees that it must reasonable efforts to mitigate to the fullest extent possible any loss for which it is entitled to seek recovery hereunder.
9.12 Export Compliance. Customer acknowledges that the Cloud Services and/or OutThink Products may be subject to U.S. and foreign export and import restrictions. Customer will not and will not allow any export or re-export of any part of the Cloud Services and/or OutThink Products, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Services is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
9.13 Entire Agreement; Construction. This Agreement, including the exhibits hereto, the Order Forms, and SOWs (in each case as executed), and the DPA (each of which are incorporated herein by this reference) constitute the entire agreement between Customer and OutThink with respect to the Services and OutThink Products and the Services and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between Customer and OutThink with respect to same. The headings contained in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement. For the purposes of this Agreement, “including” will mean “including without limitation”. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. The individual signing this Agreement, any Order Form, or SOW (or any amendment to any of the foregoing) on behalf of a party represents that such individual has the authority to bind such party. For clarity, Customer acknowledges and agrees that OutThink is not required to independently verify a Customer signatory’s authority; accordingly, Customer does not have the right to reject, repudiate, or cancel this Agreement, any Order Form, SOW, or amendment on the basis that the signatory lacks sufficient authority to bind Customer.
Version 2, 27 October 2023
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