Terms of Service
These Terms of Service (these “Terms”) apply to the subscription services offered by Dataloop Software INC. Trading as Outlyer (“Outlyer”), a company incorporated in Delaware, USA with offices at 650 California, San Francisco, CA, 94108, United States.
Please read these Terms carefully before using Outlyer. By signing up, you (the Client) agree to become bound by these Terms, to the exclusion of all other terms.
1. Beta, Trial & Free Users
For Clients using the Software (including Agents and Outlyer Plugins) and Services under a trial or beta set-up, or otherwise using it without charge, this clause 1 will apply and, in the event of any inconsistency, takes precedence over clauses 6 and 11.
WITH RESPECT TO TRIAL OR BETA USE MENTIONED IN THE FOREGROING CLAUSE, THE SOFTWARE (INCLUDING AGENTS AND OUTLYER PLUGINS) AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, OUTLYER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. In particular, no condition, warranty, representation or other term is given or entered into to the effect that the Software (including Agents and Outlyer Plugins) or Services will be of satisfactory quality, that use of the Software (including Agents and Outlyer Plugins) or Services will be uninterrupted or error-free or that the Software (including Agents and Outlyer Plugins) or Services will perform to or operate in accordance with any particular standard.
The Client acknowledges that the Software (including Agents and Outlyer Plugins) and Services are an untested, experimental and pre-release version and access is provided free of charge for test and evaluation purposes only. Accordingly, Outlyer will not be liable to the Client (whether for breach of contract, negligence, misrepresentation or for any other reason) for any loss or damage whatsoever incurred or sustained by the Client in connection with these Terms and/or its use of the Software (including Agents and Outlyer Plugins) or Services whether such loss or damage is direct, indirect or consequential and including, without limitation:
(a) loss of profit;
(b) loss of business;
(c) lost data;
(d) rerun time;
(e) inaccurate output;
(f) work delays, or
(g) wasted staff or management time.
2. Definitions and Interpretation
Where a term used in these Terms starts with the capital letters, it has a defined meaning, set out in clause 2.2.
“Agent” means a software agent installed on Client’s servers or equipment and activated through the Services to monitor the Client’s servers or equipment;
“Annual Subscription Fee” means the fee set out in the Order Form payable in respect of each twelve-month period during the Term;
“Client” means the organisation set out in a signed Order Form;
“Contract” means the contract created by a binding Order Form together with these Terms;
“Error” means a material failure of the Software to provide the functionality set out in Outlyer’s online documentation relating to the Software;
“Initial Term” means the period described as such and set out in the Order Form;
“Insolvency Event” means in relation to a person, means any of the following
(a) a meeting of creditors of that person being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to that person;
(b) a chargeholder, receiver, administrative receiver or other similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of that person;
(c) that person ceasing to carry on business or being deemed to be unable to pay its debts within the meaning of section 123 Insolvency Act 1986;
(d) that person or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of, an administrator;
(e) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of that person; or
(f) the happening in relation to that person of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets;
“Order Form” means an order form for Outlyer’s monitoring services signed on behalf of both parties;
“Plugins” means executable scripts or binaries that are created and added to the web application by either Outlyer or the customer. The plugins are pushed down and executed on the agent based on configuration changes in the web application;
“Renewal Term” means any subsequent periods of twelve-months after the Initial Term as set out in clause 7;
“Services” means the services to be provided by Outlyer as set out in the Order Form, including remote browser-based access to the Software;
“Software” means Outlyer’s monitoring platform comprising a cloud-based web application accessible by Clients and Agents deployed on Client’s equipment;
“Term” means the duration of an Order Form, comprising the Initial Term and any Renewal Terms.
3. Supply of the Services
These Terms contain general provisions that govern the Client’s use of Outlyer’s Services. Before Outlyer provides any such Services, Outlyer and the Client will in each case first execute a written Order Form.
If an Order Form conflicts with the provisions of these terms then the provisions of that Order Form will take precedence in relation to the Services to be supplied under that Order Form.
Each agreed Order Form will form a separate contract (a “Contract”) between the Client and Outlyer on the terms contained in the Order Form and in these Terms.
Outlyer will user reasonable efforts to supply the Services and in accordance with each Contract.
Outlyer reserves the right to remove or disable any Plugins or hosted content from the Software where where it suspects that such material risks interfering with the proper functioning of the Software or is in contravention of the terms of this agreement.
4. Licence and Scope of Authorised Use
Subject to full payment of the applicable fees and subject to the restrictions set out in these Terms, Outlyer grants to the Client a non-exclusive, non-transferable, non-sublicensable (except as set out in clause 4.2) license during the Term, to access and use the Software and Agent for its own internal monitoring purposes only. Except as expressly set out in this clause 4 and in clause 10, all rights in and to the Software are reserved to Outlyer. To the extent Outlyer uses any Outlyer Plugins in connection with the Software, Outlyer grants to Client a perpetual, irrevocable, non-sublicensable (except permitted in clause 4.2) license in and to the Agents and Outlyer Plugins in accordance with clause 10.1(b) hereof.
Only the Client is licensed to access and use the Software. Use by the Client includes use by
(a) its employees; and
(b) any contract staff who are working for the Client.
The Client shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Client or any of its authorised users in order to access or use the Software (“ID”). The Client acknowledges and agrees that it will be solely responsible for all activities that occur under such ID. The Client shall promptly inform Outlyer upon becoming aware of any unauthorised access to or use of the Software, and provide all reasonable assistance to Outlyer to bring an end to such unauthorised access or use.
The Client shall not:
(a) permit any third party (except as expressly set out in clause 4.2) to access or use the Software or use the Software on behalf of any third party (which includes operating any form of facility or service on behalf of any third party and operating a SaaS service to third parties);
(b) copy, modify, adapt or create derivative works from the Software or its contents;
(c) attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software except to the extent that the Client is permitted to do so under applicable law in circumstances under which Outlyer is not lawfully entitled to restrict or prevent the same;
(d) attempt to interfere with the proper working of the Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Software or any website, computer system, server, router or any other internet-connected device; or
(e) obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the Software; and shall not permit any third party to do any of the foregoing.
Where any scripts or other software components are supplied to the Client with an open source licence, then the terms of that open source licence will apply instead of these Terms.
During the Term, Outlyer may access and monitor the Client's systems and equipment (including communication over the Client's networks between the Agents and the Software hosted by or on behalf of Outlyer) as reasonably required to provide the Services. Where the systems and/or networks are owned, operated or controlled by a third party, the Client represents and warrants to Outlyer that it has the consent of each such third party and will indemnify Outlyer against any costs and liabilities arising out of any claim that Outlyer is not properly authorized to have such access and use.
In each case the Order Form will set out the fees and charges (“Fees”) for the Software and Services to be supplied in accordance with that Order Form. The Fees will be due on the dates (or on the occurrence of the events) specified in that Order Form.
Unless otherwise specified in the relevant Order Form, the Fees will be due in advance at the start of calendar year, or part thereof during the Term, for the Software and Services, and all related charges in accordance with the relevant Order Form. Outlyer may invoice the Client for the Fees as soon as they become due. The Client must pay the invoices within [thirty (30)] days of receiving them. If Outlyer has not received payment within the said [thirty (30)] days, interest shall accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Outlyer.
The Fees specified in each Order Form do not include any sales taxes, duties, levies, tarrifs and other governmental charges (including without limitation, VAT) or other taxes related to supplies, unless expressly set out in an Order Form. Client will be responsible for payment of all taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Outlyer’s net income.
6. Warranties and Other Terms
The Client warrants that its access and use, and that of its employees, agents and contractors, of the Software, Agents and Datalopp.IO Plugins will comply with all applicable laws, regulations and codes of practice of any competent authority and these Terms.
Outlyer warrants that the Services will be provided with reasonable care and skill and that it will use reasonable efforts to maintain availability of remote access to the Software.
Outlyer warrants that in relation to the Software it will, for a period of three (3) months from first access, be free from any defect which has a materially adverse effect on its use or operation for the purpose for which it was supplied (as evident from the relevant Order Form).
If the warranty in clause 6.3 is breached, Outlyer will have a reasonable time to fix the problem and (if necessary) to provide a corrected version of the Software or a practicable way to work around the problem). This will be done without any additional charge to the Client.
Outlyer will use reasonable efforts to respond by email to a support request by email to email@example.com in respect of any Error within twenty-four (24) business hours of notification during Outlyer's normal office hours and will proceed diligently in attempting to diagnose and resolve the Error.
Outlyer will keep confidential any Confidential Information (as defined herein), which the Client supplies to Outlyer in connection with these Terms and the Client must do the same in relation to any Confidential Information which Outlyer supplies to the Client. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated or otherwise marked as being confidential, or any other information that might reasonably be assumed to be confidential given the nature of the information and circumstances surrounding disclosure. For clarity, Software, Agents and Outlyer Plugins are considered Confidential Information of Outlyer. The obligations as to confidentiality in these Terms will not apply to any information which:
(a) is available to the public other than because of any breach of these Terms;
(b) is, when it is supplied, already known to whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
(c) is independently obtained by whomever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;
(d) is trivial or obvious; or
(e) is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirements).
Confidentiality Period. During the term of these Terms and for five (5) years thereafter, the Receiving Party will not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (i) use at least the same degree of care to protect Confidential Information of the Disclosing Party that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), (ii) not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Compelled Disclosure. If the Receiving Party is compelled by law or any listing or trading agreement concerning its publicly-traded securities to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
Return of Materials. Upon termination of these Terms and all Contracts, or at the request of the Disclosing Party at any time during or after these Terms, the Receiving Party will deliver to the Disclosing Party or destroy and certify destruction (at the Disclosing Party’s election and in the manner designated by the Disclosing Party) all of the Disclosing Party’s Confidential Information.
Marketing and Publicity. Client will comply with reasonable requests of Outlyer to support public relations efforts pertaining to the Services and Software, which efforts may include:
(a) a press release highlighting Customer’s purchase or use of the Software and Services;
(b) participation in targeted press and analyst interviews highlighting benefits of implementing the Software and Services; and
(c) participation in customer case studies developed by Outlyer and used on Outlyer’s web site and other collateral.
The Client grants to Outlyer a non-exclusive, non-transferable (except as permitted under clause 12.1), limited right to use the Client’s name, trademarks, and logos (collectively, the “Marks”) in the production of marketing materials, provided that such use is in accordance with Client’s trademark and logo use guidelines that Client provides to Outlyer. All goodwill developed from such use will be solely for the benefit of Customer.
8. Term and Termination
Each Contract will commence on the Effective Date as set out in the relevant Order Form and will continue for the Initial Term. At the end of the Initial Term and each subsequent Renewal Term, each Contract will automatically renew unless either party terminates the Contract by written notice to the other party not less than sixty (60) days prior to the end if the Initial Term or relevant Renewal Term (as appropriate).
Outlyer or the Client may terminate a Contract if:
(a) (a) the other party materially breaches any term of the Contract and it is not possible to remedy that breach; or
(b) (b) the other party materially breaches any term of the Contract and it is possible to remedy that breach, but such other party fails to do so within thirty (30) days of having received a notice of breach from the non-breaching party, reporting such breach.
Either party may terminate any or all Contract(s) if an Insolvency Event occurs in respect of the other party.
Monthly or Annual subscribers without an Order Form must give notice to cancel their Subscription before the next billing date, otherwise the Subscription will automaticaly renew and all fees for the Subscription will be charged.
9. Consequences of Termination
Termination of a Contract will not affect any accrued rights or liabilities that either Outlyer or the Client may have by the time termination takes effect. Upon termination of all current Contracts for any reason:
(a) the Client will immediately cease to access, and discontinue all use, of the Software, Agents, Outlyer Plugins and the Services;
(b) all amounts payable to Outlyer by the Client will become immediately due and owing.
Clauses 1 (Beta, Trial & Free Users), 2 (Definitions and Interpretation), 5 (Fees), 6 (Warranties and Other Terms), 7.1-7.5 (Confidentiality), 9 (Consequences of Termination), 10 (Intellectual Property Rights (except for the licenses thereunder which expire upon termination of these Terms or the relevant Contracts), 11 (Limitation of Liability), and 12 (Other Terms) will survive expiration or termination of these Terms and/or any Contracts.
10. Intellectual property rights
Ownership of Intellectual Property Rights will be dealt with as follows:
(a) Subject to clause 10.1(b) and clause 10.1(c), the Client acknowledges that all Intellectual Property Rights in the Software and any modifications thereto belong and will belong to Outlyer or its licensors, and the Client will have no rights in or to the Software other than the right to use it in accordance with these Terms;
(b) The Software requires Plugins to be used in order for the Agents to communicate properly with the Software. Where Plugins are written by Outlyer for the Client, Outlyer will own the Intellectual Property Rights in those scripts and the Client is hereby granted a perpetual, irrevocable, non-sublicensable (except as permitted under clause 4.2), non-exclusive and worldwide license to install and use such Plugins for its internal monitoring purposes. Where Plugins provided by Outlyer and/or by the Client have been developed using open source code, then they will be licensed to the Client in accordance with the applicable open source license accompanying the copies of the scripts (and not by the provisions of these Terms) and the Client agrees to comply with those open source licenses.
(c) Where and to the extent Plugins are written by or on behalf of the Client, the Client or its licensor will retain ownership of Intellectual Property Rights in such Plugins, and Outlyer is hereby granted, and Client agrees to grant to Outlyer, a perpetual, irrevocable, non-exclusive, royalty-free and worldwide license (with the right to sublicense) to use, reproduce, access and modify such Plugins to monitor general performance of the Software and to use them to create Plugins for other clients and users of the Software (and to sublicense use to clients and users of the Software and resellers and service providers of Outlyer now or in the future and third parties acting on Outlyer's behalf.
Outlyer will indemnify the Client against any loss or damage suffered or incurred by the Client as a result of any claim by a third party that the Client's use of the Software infringes the Intellectual Property Rights of any third party, provided such claim did not arise due to the combination, modification, use or misuse of the Software by the Client in a manner not contemplated by these Terms or otherwise authorized in writing by Outlyer. It is a condition of this indemnity that:
(a) the Client fully co-operates with Outlyer in defending or settling the claim;
(b) Outlyer is notified immediately in writing of any claim, provided Outlyer’s obligations to indemnify will not be limited by the Client’s failure to provide such notice unless Outlyer’s ability to defend the claim was materially prejudiced by such failure;
(c) Outlyer will have the sole control of the conduct of any claim and all negotiations for its settlement or compromise; and
(d) the Client and its group companies, agents and contractors make no admission of liability in connection with the claim and do not otherwise materially prejudice its defense or settlement.
The Client will indemnify, defend and hold harmless Outlyer and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) the Client’s access to or use of the Services or Software, Agents or Outlyer Plugins or (ii) the Client’s violation of the representations and warranties herein.
- EXCEPT AS EXPRESSLY PROVIDED IN CLAUSE 6, OUTLYER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS, THE SOFTWARE, AGENTS, OUTLYER PLUGINS OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN CLAUSE 6, OUTLYER DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, AGENTS, OUTLYER PLUGINS OR SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. OUTLYER FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, AGENTS, OUTLYER PLUGINS AND SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. OUTLYER FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OUTLYER OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
- IN NO EVENT WILL OUTLYER’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, AGENTS, OUTLYER PLUGINS OR SOFTWARE EXCEED THE AMOUNTS PAID OR PAYABLE TO OUTLYER FOR THE SOFTWARE AND SERVICES IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY OR TWENTY THOUSAND US DOLLARS ($20,000), WHICHEVER IS GREATER.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OUTLYER AND THE CLIENT.
12. Other Terms
The Client may not subcontract, assign or otherwise transfer any of its rights or obligations under these Terms without Outlyer's prior written consent; and any assignment in violation of this clause will be null and void. Outlyer may freely assign these Terms. Subject to the foregoing restrictions, these Terms shall inure to the benefit of the successors and permitted assigns of the parties.
Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
All notices and consents relating to these Terms must be in writing. All amendments to these Terms must be agreed, set out in writing and signed on behalf of both Outlyer and the Client before they take effect.
If a party:
(a) delays in enforcing its rights under these Terms (whether in relation to a breach by the other party or otherwise); or
(b) agrees not to enforce its rights, or to delay doing so, then unless the party concerned expressly agrees otherwise, that delay or agreement will not be treated as waiving the rights of the party concerned.
Any waiver of a party's rights in relation to a particular breach of these Terms will not operate as a waiver of any subsequent breach.
These Terms and any relevant Order Form sets out all of the terms that have been agreed between Outlyer and the Client in relation to the subjects covered by it. No other representations or terms will apply or form part of any Contract between the parties. The Client acknowledges that it has not been influenced to enter into these Terms by anything Outlyer has said or done or committed to do, except as expressly recorded herein.
In the event of any provision of these Terms being held to be void, voidable or unenforceable this will not affect the validity or enforceability of any other provision of these Terms or of the remainder of these Terms as a whole.
These Terms are intended for the sole and exclusive benefit of the signatories and are not intended to benefit any third party. Only the parties to these Terms may enforce them.
These Terms and all matters arising out of or relating to these Terms will be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to these Terms will be brought exclusively in the state or federal courts located in the Northern District of California. Outlyer and the Client hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Last updated: 10th August 2016
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