LICENSE TRIAL AGREEMENT
Updated: Thursday, November 11, 2022 - 09:00 GMT
This OutSystems Software License Trial Agreement (this “Agreement”) is entered into as of the date of download of the Software (“Effective Date”) by and between “OutSystems” and the company or entity for which you are a duly authorized director, officer, employee, or contractor (“User”) (each, a “Party”, and together, the “Parties”). This Agreement governs the use of OutSystems Software for which a temporary license and/or access right is being granted in accordance with the terms of this Agreement. By clicking on the appropriate button, or by downloading, installing, accessing and using the Software, you agree to be bound by the terms of this Agreement. Do not download, install, access or use any of the Software if you do not agree to the terms of this Agreement.
1 - TRIAL LICENSE
1.1 “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/.
1.2 OutSystems grants User a worldwide, non-exclusive, non- transferable, temporary right to use and access the Software, and all related systems, platforms or networks up to the installed capacity as determined by OutSystems for thirty (30) calendar days from the Effective Date, unless otherwise provided by OutSystems (“Trial Period”), only for the purposes of (a) evaluating internally and determine whether to acquire a license to the Software for a fee, or (b) if User is an authorized OutSystems Partner, Independent Software Vendor, or a Managed Services Provider, to demonstrate to the prospective customer for the prospective customer’s internal evaluation. User may not access or use the Software if it is a direct competitor of OutSystems, unless authorized to do so in writing by OutSystems.
1.3 Upon expiration of the Trial Period, User shall promptly discontinue use of the Software, deactivate the license key per instructions provided by OutSystems, destroy all printed copies and delete all electronic copies of any documentation that User have downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on User computers.
2 - RESTRICTION AND MANNER OF USE
2.1 Restrictions of Use. Unless otherwise authorized under this Agreement, User 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 the Software to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by any third party without OutSystems’ prior written consent; (iii) 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; (iv) modify, translate, adapt or create derivative works based on the Software; (v) export or re-export the Software or any derivative work thereof; (vi) remove or modify any Software markings or any notice of OutSystems’ proprietary rights; (vii) use the Software to develop, test, host, or run and operate applications on behalf of third-parties to this Agreement; (viii) use the Software to provide third party training; (ix) use the Software in any way that is contrary to the terms and conditions of this Agreement; or (x) use the Software for any unlawful purposes. Except to the extent expressly permitted by this Agreement or applicable law, and to the extent that OutSystems is not permitted by that applicable law to exclude or limit the following rights, User may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.
2.2 Manner of use. Subject to the terms of this Agreement, User agrees not to 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 User is in violation of any of the foregoing restrictions, OutSystems may terminate the trial license and this Agreement without further notice to User; and/or, OutSystems will notify User, and User will promptly take appropriate action to resolve such violation. If User does not take required action in accordance with the above, OutSystems 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. OutSystems shall have no liability to User in the event that OutSystems takes such action.
2.3 Liability of User. User will be fully liable for any and all losses suffered by OutSystems, as a result of any breaches or purported breach of this Agreement. User shall also defend and indemnify OutSystems, and pay all damages (including attorneys’ fees and costs) awarded against OutSystems, or that are agreed to in a settlement, to the extent a claim, demand, suit or proceeding is made or brought against OutSystems or its affiliates by a third party (including those brought by a government entity), that is a result of User’s breaches or purported breach of this Agreement.
3 - INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
3.1 OutSystems’ Intellectual Property. User acknowledges and agrees that all intellectual property rights, including but not limited to, 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 (“Intellectual Property Rights”), in and to the Software are owned by OutSystems and shall, notwithstanding the terms of this Agreement, remain vested in OutSystems. Unless otherwise expressly provided in this Agreement, User shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the Software. All rights not expressly granted by OutSystems herein are reserved.
4 - CONFIDENTIALITY
4.1 Use and Disclosure. User may come into contact or have access to OutSystems non-public information that User may obtain from OutSystems or have access to by virtue of this Agreement, including, but not limited to, OutSystems data and OutSystems proprietary Software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the Software and Personal Data and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential (“Confidential Information”). During this Agreement and for a period of 3 (three) years following its termination, User shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except User’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of OutSystems. User agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.
4.2 Permitted Disclosures. User may disclose Confidential Information of OutSystems: (i) in response to a valid order or request by a court or other governmental or regulatory body, (ii) as otherwise required by law. Should User seek to disclose information, User shall promptly give notice to OutSystems and allow OutSystems to object or to seek a protective order, to the extent permitted by the applicable law.
4.3 Non-Confidential Information. User shall not be obligated under this Section 4 (“Confidentiality”) with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of User; (ii) was in User’s lawful possession without restriction prior to the disclosure and had not been obtained by User either directly or indirectly from OutSystems; (iii) is lawfully disclosed to User by a third party without restriction on the disclosure; or (iv) is independently developed by User without access to the Confidential Information.
4.4 Destruction or Return. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by OutSystems, User will at OutSystems option either destroy (and so certify it in writing), and/or return to OutSystems all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that User shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.
5 - NO WARRANTIES AND LIMITATION OF LIABILITY
5.1 OUTSYSTEMS DOES NOT WARRANT THAT THE SOFTWARE, WILL BE UNINTERRUPTED, ERROR-FREE, OR OUTSYSTEMS SOFTWARE LICENSE TRIAL AGREEMENT COMPLETELY SECURE. USER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF USER ’S PRIVACY, CONFIDENTIAL INFORMATION AND/OR CONTENT. OUTSYSTEMS PROVIDES THE SOFTWARE, “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. USER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS. OUTSYSTEMS LIABILITY RESULTING FROM THE USE OF SOFTWARE OR THIS AGREEMENT IS LIMITED TO US$100 (ONE-HUNDRED US DOLLARS).
6 - GENERAL PROVISIONS
6.1 Entire Agreement. This Agreement, including all addenda (if any), constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to, supplement or modification of this Agreement will be binding unless in writing and signed by duly authorized representatives of both Parties. User acknowledges and agrees that it has had the opportunity to review all the documents contained in a URL prior to executing this Agreement, which it can print for its internal records.
6.2 Interpretation. References to a provision, clause, section, are to a provision, clause, section, to this Agreement. References to this Agreement 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.
6.3 Headings. The caption and the headings to clauses, sections, parts, paragraphs are inserted for convenience only and shall be ignored in interpreting this Agreement.
6.4 Contracting OutSystems Company, governing law and jurisdiction. If User is headquartered in North America or South America, then the laws of the State of New York shall be the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule and all lawsuits shall be filed in the New York State courts, and the contracting OutSystems entity is OutSystems, Inc. If User is headquartered in Europe, Middle East and Africa, then the laws of Portugal shall apply, and the Parties agree to submit to the exclusive jurisdiction of the courts of Lisbon, Portugal, and the contracting OutSystems entity is OutSystems Software em Rede, S.A. If User in headquartered in Asia Pacific, then the laws of Singapore will apply, and the Parties agree to submit to the exclusive jurisdiction of the courts of Singapore, and the contracting OutSystems entity is, OutSystems Singapore Pte Ltd. The Parties agree that neither the Uniform Computer Information Transaction Act nor the United Nations Convention for the International Sale of Goods will apply to this Agreement.
6.5 Compliance with Laws. User agrees that User’s 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 Agreement, without notice and without liability, for any perceived or actual breach of this clause.
6.6 Export Laws. User agrees that User’s 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"). User represents and warrants that User is 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, Cuba, Iran, North Korea, Syria, and the Crimea region, Donetsk People’s Republic region, and Luhansk People’s Republic region of Ukraine) (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”). User agrees that the Sanctioned Countries and Restricted User Lists are subject to change without notice. User further agrees that User will not, directly or indirectly, export, re- export, transfer or otherwise use the Software (nor any direct product thereof) in violation of the 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. User acknowledges that the Software or any feature or part thereof, may not be available for use in all jurisdictions and that User is responsible for complying with applicable Export Laws wherever User uses the Software. OutSystems shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
6.7 Personal Data. In the event OutSystems has access to Personal Data through the execution of this Agreement, it shall act as Customer’s data processor for the processing thereof, and shall process any Personal Data at all times in full compliance with the applicable data protection laws. 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 Agreement.
6.8 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 User or its affiliates and their respective employees, contractors or other agents, with respect to the Software. The foregoing grant of rights is made without any duty to account to any of the foregoing persons or entities for the use of such Feedback.
6.9 Notices. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement (“Notices”) must be in writing and will be delivered (as elected by the Party giving such notice): (i) by email to email@example.com or to the email address of User, or (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Either Party may change the address to which Notices shall be sent by giving Notice to the other Party in the manner herein provided. Notices shall be written in the English language.
6.10 Relationship of Parties. The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
6.11 Assignment. This Agreement 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 Agreement without such consent shall be void. Notwithstanding, OutSystems may freely assign or transfer this Agreement 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 Agreement, this Agreement 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 hereto.
6.12 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement 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 Agreement. The Parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.
6.13 Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of OutSystems, claimed to have waived.
6.14 Survival. Clauses and / or Sections 2 (“Restrictions and Manner of Use”), 3 (“Intellectual Property Rights, Ownership and Title”), 4 (“Confidentiality”), 5 (“No Warranties and Limitation of Liability”), and 6 (“General Provisions”) of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after termination date.