OUTSYSTEMS END-USER LICENSING AGREEMENT

Updated: Tuesday, August 11, 2020 - 17:15 GMT

THE TERMS OF THIS END-USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ITS TERMS YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT.

1. DEFINITIONS

Application” means the computer application developed through the use of the Software or any third-party Software tools integrated and managed by the Software.
Content” means software (including machine images), applications, online services, features, technology, data, text, audio, video, images or other content.
Customer” means the Party which acquired the Subscription and executed the agreement on the basis of which access to the Software is being provided.
End-User” or “You” means the entity (Customer) or natural person executing and accepting this EULA.
EULA” means this agreement.
Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights”.
Personal Data” has the meaning as described in the applicable data protection laws and shall include, without limitation, any data or information (regardless of the medium in which it is contained and whether alone or in combination) that relates to an identified or identifiable natural person.
Software” means the OutSystems software, including its updates, upgrades, platform as a service, documentation, a description of which is set out at https://www.outsystems.com/evaluation-guide/
Subscription” means the provision of Software licenses.
“Subscription Term” refers to the period of time for which Customer has acquired the Subscription.
Support and Updates” means any Software support and updates services provided by OutSystems as detailed at www.outsystems.com/goto/outsystems-support-terms.

2. SCOPE

2.1      Aim and Acceptance. This EULA applies to Your use of the Software. By accessing and/or using the Software, each End-User agrees to accept and abide by this legally binding EULA and any updated versions which may occur from time to time. The End-User acknowledges that any act of accessing or using the Software will bind the End-User to this EULA.

2.2      Relationship with other documents. The clauses established herein are applicable inasmuch as they are compatible with any other written agreement entered between OutSystems and the Customer. In such case, that agreement shall prevail over any clause of the EULA. When Subscription is acquired through a third-party (reseller), in case of inconsistency between the agreement executed with such third party and the EULA, the EULA shall prevail.

3. LICENSE

3.1      License. This Software is licensed, not sold. By executing this EULA You can access and/or use the Software. Your rights are determined by those granted to the Customer and subject to the usage limits identified. The rights of use granted shall not include any rights to the source code of the Software.

3.2      Restrictions of Use. Unless otherwise authorized by OutSystems You may not and will not allow any third party to: (i) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer in whole or in part the Software or any interest in it to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Subscription in whole or in part by any third party without OutSystems’ prior written consent; (iii) sell, rent, lease, license, sublicense, offer as a paid or free subscription, or include in a service bureau or outsourcing offering, distribute, pledge, assign or otherwise transfer in whole or in part the Applications built with the Software; (iv) install or use the Software in a manner that circumvents or interferes with the operation of the technological measure that controls the access to the Software; (v) modify, translate, adapt or create derivative works based on the Software; (vi) export or re-export the Software or any derivative work thereof; (vii) remove or modify any Software markings or any notice of OutSystems’ proprietary rights; (viii) use the Software to develop, test, host, or run and operate applications on behalf of third-parties to this EULA, without OutSystems’ prior written consent; (ix) use the Software to provide third party training; (x) disclose results of any Subscription benchmark tests to any third party without OutSystems’ prior written consent; (xi) use the Software in any way that is contrary to the terms and conditions of this EULA; or (xii) use the Software for any unlawful purposes. Except to the extent expressly permitted by this EULA or applicable law, and to the extent that OutSystems is not permitted by that applicable law to exclude or limit the following rights, You may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. If You violate any of these restrictions, You may be subject to prosecution and liable for damages.

3.3      Manner of use. You shall not use or permit use of the Software to display, store, process or transmit any Content, that may (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote bigotry, racism, hatred or harm; (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (v) constitute an infringement of intellectual property or other proprietary rights; or (vi) otherwise violate applicable laws, ordinances or regulations. If OutSystems receives information that You are in violation of any of the foregoing restrictions, OutSystems will notify Customer, and Customer will promptly take appropriate action to resolve such violation. If Customer does not take required action in accordance with the above, OutSystems reserves the right, at its sole discretion and under no obligation, to take remedial action if any Content violates the foregoing restrictions, including the removal or disablement of access to such material. OutSystems shall have no liability in the event that OutSystems takes such action.

3.4      End-User’s Content and Applications. As necessary for OutSystems (i) to provide Support and Updates to Customer and (ii) to operate, manage and improve the Software, You hereby grant to OutSystems the right and a license to host, copy, transmit and display Content and Applications in accordance with this EULA and limited to such purposes only.

4. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE

4.1      Intellectual Property in the Software. All Intellectual Property Rights in and to the Software are owned by OutSystems and shall, notwithstanding the terms of this EULA, remain vested in OutSystems. The Software is protected by copyright laws and international treaties. Except as and only to the extent permitted by applicable law, or by licensing terms governing use of open-sourced components included with the Software, You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or Software updates, or any part thereof. Any attempt to do so is a violation of this EULA and the rights of OutSystems and/or its licensors. If You violate this restriction, You may be subject to prosecution and liable for damages.

4.2      Intellectual Property in the Applications. Unless otherwise expressly provided, OutSystems shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the developed Application.

5. CONFIDENTIALITY

The Software and all manuals, data, documentation, and other materials provided by OutSystems contain confidential and proprietary information. You agree to use the Software only as expressly set forth herein, not to disclose the Software to any third party and to maintain adequate procedures to prohibit the unauthorized disclosure, duplication, misuse or removal of the Software.

6. EFFECT OF TERMINATION

Upon termination of the Subscription, the EULA shall be automatically canceled, and You shall no longer have access to the Software or to the Applications.

7. DISCLAIMER OF WARRANTIES

OUTSYSTEMS DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. END-USER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF END-USER’S PRIVACY, CONFIDENTIAL INFORMATION AND/OR CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUTSYSTEMS PROVIDES THE SOFTWARE AND SUPPORT “AS IS”, WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO, EXPRESS OR IMPLIED OR STATUTORY OR OTHER WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CUSTOMER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL CUSTOMER CONTENT AND APPLICATIONS.

8. LIMITATION OF LIABILITY

8.1      EXCLUSIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUTSYSTEMS BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, DATA OR DATA USE, OR CLAIMS OF THIRD PARTIES) ARISING FROM THIS EULA, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2      OUTSYSTEMS LIMITATION OF LIABILITY. OUTSYSTEMS WILL NOT BE LIABLE FOR:
(i) YOUR INABILITY TO USE THE SOFTWARE, OR SUPPORT, INCLUDING AS A RESULT OF ANY (i.a) TERMINATION OR SUSPENSION OF SUBSCRIPTION OR (i.b) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; OR (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS; OR (iii) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS EULA; OR (iv) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT DUE TO YOUR NEGLIGENCE AND OR MISCONDUCT; OR (v) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE OUT OF ANY THIRD PARTY OR RESELLER SOFTWARE LICENSE.

8.3      OUTSYSTEMS TOTAL AGGREGATE LIABILITY. OUTSYSTEMS’ TOTAL AGGREGATE LIABILITY UNDER THIS EULA AND END-USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY OUTSYSTEMS’ GROSS NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID TO OUTSYSTEMS UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

9. GENERAL PROVISIONS

9.1      Entire Agreement and Order of Precedence. This EULA, as varied from time to time, constitutes the entire agreement in respect of the End-User’s access to and/or use of the Software. The terms of any purchase order or similar Customer document are excluded; such terms will not apply to OutSystems and will not supplement or modify this EULA.

9.2      Interpretation. References to a provision, clause or Section are to a provision, clause or Section of this EULA. References to this EULA include reference to information contained in a URL and/or referenced policies and/or guides. Words importing the singular include the plural and vice versa. Words importing a gender include every gender. The words and phrases “other”, “such as”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.

9.3      Headings. The caption and the headings to clauses, Sections, parts and paragraphs are inserted for convenience only and shall be ignored in interpreting this EULA.

9.4      Contracting company, governing law and jurisdiction. OutSystems entity with which You are contracting under this EULA is OutSystems - Software em Rede, S.A., Rua Central Park, 2, 2º A, 2795-242 Linda-a-Velha, Portugal. The governing law are the laws of Portugal, excluding its conflict of laws rules. The courts having jurisdiction are the courts of Lisbon, Portugal. OutSystems shall still be entitled to file a suit at the End-User’s domicile.

9.5      Compliance with Laws. You agree that Your use of the Software will comply with all applicable laws, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. OutSystems shall have the right to terminate this EULA, without notice and without liability, for any perceived or actual breach of this clause.

9.6      Export Laws. You agree that Your use of the Software (including related documentation) will comply with applicable export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, "Export Laws"). You represent and warrant that You are not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). You further certify that you will not, directly or indirectly, export, re-export, transfer or otherwise use the Software (nor any direct product thereof) in violation of export Laws, or with any purpose prohibited by the same export Laws, in any sanctioned country, to any person or entity on a restricted party list, or for any nuclear, chemical, missile or biological weapons related end uses. You acknowledge that the Software, or any feature or part thereof, may not be available for use in all jurisdictions and that you are responsible for complying with applicable export laws wherever you use the Software. OutSystems shall have the right to terminate this EULA, without notice and without liability, for any perceived or actual breach of this clause.

9.7      Usage Data. The Parties hereby agree that OutSystems and any company that is a part of its group of companies may collect and use data related with the use of the Software (“Usage Data”) for statistical purposes, to improve the Software and for licensing or compliance audits. OutSystems may, at its sole discretion, also implement technical measures regarding the functionality of the Software to assess whether the End-User’s and/or Customer’s usage pattern are in line with the EULA.

9.8      Personal Data. In the event OutSystems has access to Personal Data through the execution of this EULA, it shall act as End-User’s data processor for the processing thereof. OutSystems shall process any Personal Data at all times in full compliance with the applicable data protection laws. If and to the extent that OutSystems processes Personal Data of European Economic Area (“EEA”) individuals, the Parties hereby agree that such processing shall be carried out in accordance with the data processing agreement as defined at http://www.outsystems.com/legal/master-subscription-agreement/data-processing-agreement, incorporated herein by reference, which the parties hereto agree to be binding upon them and that, within its scope, shall prevail over the EULA.

9.9      Suggestions, Ideas and Feedback. OutSystems will be free to use, irrevocably, in perpetuity and for any purpose, all suggestions, ideas and/or feedback provided by End-User.

9.10      Force Majeure. Neither You nor OutSystems is responsible for failure to fulfill any obligations due to causes beyond its control.

9.11      Assignment. This EULA is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. Any attempt by either Party to assign or transfer this EULA without such consent shall be void. Notwithstanding, OutSystems may freely assign or transfer this EULA to any company that is a part of its group of companies or as a result of a merger or a sale of all or a substantial part of its share capital. In the case of any permitted assignment or transfer of or under this EULA, this EULA or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assignees of the Parties here

9.12      Severability. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this EULA or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the EULA. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.

9.13      Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this EULA.

9.14      Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.

9.15      Survival. Clauses and / or sections (“3.2 (“Restrictions of Use”), 3.3. (“Manner of Use”) 4 (“Intellectual Property Rights, Ownership and Title”), 6 (“Effect of Termination”), 7 (“Disclaimer of Warranties”), 8 (“Limitation of Liability”), and 9 (“General Provisions”) of this EULA shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this EULA, shall also remain in force after termination date.