The terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”) govern Customer’s use and access to the website located at https://outmarket.ai (together with any successor websites, the “Site”) and the products and services subscribed to by you, as set forth in the applicable Order Form (collectively with the Site, “Service”), all of which are provided by or on behalf of Outmarket AI Inc. (“Outmarket,” “we,” “us,” or “our”).
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE OR BY CLICKING A CHECKBOX OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS OF SERVICE, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND THE OTHER TERMS INCORPORATED BY REFERENCE.
For purposes of these Terms of Service, “Customer”, “you” or “your” refers to the entity or person who has executed an Order Form with Outmarket. Customer represents and warrants that the individual accepting these Terms of Service on its behalf has the right, power and authority to act on behalf of and bind Customer.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. Outmarket will also use commercially reasonable efforts to notify you of any changes that materially and adversely affect your use of the Service prior to any such material changes taking effect, either through a pop-up on the Site, or email via the email address associated with your Account, or through other reasonable means. Customer’s use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
1. Service
1.1 Order Forms.
From time to time, you and Outmarket may enter into an order form setting forth the specific Service that Customer may access and use, pricing and other applicable terms (each, an “Order Form”).
1.2 Access and Use.
During the Subscription Period and subject to the terms and conditions of these Term of Use (including the Usage Limitations set forth in Section 2), Outmarket hereby grants Customer and its Users a non-exclusive, limited right to (a) access and use the Service; (b) copy and use any usage manuals and instructional materials made available by Outmarket for the Service (“Documentation”) only as needed to access and use the Service, in each case, for its internal business purposes; and (c) use all proposals, documents, dashboards and other information generated through Customer’s use of the Service, including sharing such materials with Customer’s clients.
1.3 User Accounts.
Customer must register and create an account to use the Service (an “Account”) and as part of that process will be requested to provide certain information, including without limitation Customer’s name and email address. By using the Service, Customer agrees to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. Customer is responsible for all actions on accounts for Customer’s or its affiliates’ employees and other personnel permitted to access and use the Service (each, an “User”) and for Users’ compliance with these Terms of Service. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Outmarket if it suspects or knows of any fraudulent activity with its or its Users’ accounts, passwords, or credentials, or if they become compromised.
1.4 Use of AI Tools.
The Service include features and capabilities utilizing artificial intelligence, machine learning or similar technologies (collectively, “AI Functions”) developed by Outmarket and/or Outmarket’s third-party providers. When Customer provides Customer Content in connection with its use of Al Functions, Customer will receive output generated and returned by the Al Functions (“Output”). CUSTOMER BEAR ALL RISK WITH RESPECT TO THE USE OF ANY OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING OUTPUT AND ANY RISK WITH THE USE OF SUCH OUTPUT AND FOR ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OUTPUT.
2. Usage Limitations
2.1 Customer Acceptable Use.
(a) Except as expressly permitted by these Terms of Service, Customer will not (and will not allow any User or anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent applicable laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Service; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Service; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Service; (vi) access accounts, information, data, or portions of the Service to which Customer does not have explicit authorization; (vii) use the Service to develop a competing service or product; (viii) use the Service with any activity prohibited by applicable laws; (ix) use the Service to obtain unauthorized access to anyone else’s networks or equipment; (x) upload, submit, or otherwise make available to the Service any Customer Content to which Customer and Users do not have the proper rights; (xi) exploit AI Functions for spamming, scraping, impersonation, or generating deceptive content outside of permitted use, (xii) use the Service in a manner not compliant with the Documentation, or (xiii) otherwise use the Service in any manner not expressly permitted herein.
2.2 Usage Limits.
Customer’s use of the Service is subject to the usage limitations set forth in the applicable Order Form.
(a) If Customer uses the Service based on a specific number of seats as noted in the Order Form, then Customer shall ensure that each User account is used only by a single, named individual and not shared across multiple individuals or used to conduct business on behalf of multiple unaffiliated entities. Customer shall not permit any User account to be accessed or used concurrently or serially by more than one person, or to facilitate transactions for multiple end users beyond the licensed scope. Customer acknowledges that the Service is intended to support normal business usage patterns. If Customer’s usage exceeds 1500 Pages (as defined below) processed by any User in any month, then Outmarket may pursue remedies as set forth in Section 2.2(c) in addition to any other remedies available under appliable law.
(b) If Customer uses the Service based on a specified number of credits, then Customer acknowledges that each credit permits Customer to process one Page through the Service. As used herein, “Page” means a single rendered page as determined by the Service’s document processing engine whereby, (i) for PDF files, each PDF page constitutes one Page and (ii) for other file formats, the Service shall determine Page count based on standard rendering at US Letter size (8.5" x 11"). Each credit is consumed when an User uploads, inputs or otherwise provides the Page to or though the Service, and subsequent processing, re-processing, or referencing of such Page does not consume additional credits. All credits are allotted for the full Subscription Term and expire at the end of the Subscription Term. If the Service fails to process a Page solely due to the Service failing to comply with the limited warranty set forth in Section 6.3, Customer may dispute any credits charged for such Page as part of its dispute of the applicable Credit Report. Outmarket will make available a monthly report summarizing Customer’s credit usage for such month (the “Credit Report”). If Customer disputes any Credit Report, it will notify Outmarket in writing within thirty (30) days of the applicable Credit Report being made available and the parties will work together in good faith to resolve any such dispute. Any failure to dispute any credit usage within such thirty-day period will be deemed Customer’s acceptance of the Credit Report.
(c) Outmarket reserves the right to monitor usage patterns and audit accounts for compliance with this Section 2.2. Violations may result in additional usage charges imposed on Customer, the execution of a new Order Form for additional usage, suspension or termination of Customer’s account or such other remedies as may be reasonably imposed by Outmarket.
2.3 Suspension.
If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days after the payment is due in accordance with the invoice or applicable Order Form (“Payment Period”); (b) breaches Section 2.1 (Customer Acceptable Use); or (c) uses the Service in violation of the Agreement or in a way that materially and negatively impacts the Service or others, then Outmarket may temporarily suspend Customer’s access to the Service with or without notice. However, Outmarket will inform Customer before suspending Customer’s account when practical. Outmarket will reinstate Customer’s access to the Service only if Customer resolves the underlying issue before the end of the Subscription Period. The duration of any such suspension may be tacked on to the end of the Subscription Period in Outmarket’s sole discretion.
3. Data
3.1 Personal Data.
Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Outmarket. Both parties agree to be subject to the Data Processing Agreement, available at https://outmarket.ai/docs/dpa, the terms of which will control each party’s rights and obligations as to Personal Data. In the event of any conflict between the terms of this Agreement and the Data Processing Addendum, the terms of the Data Processing Addendum will control with respect to terms relating to Personal Data.
3.2 Prohibited Data.
Customer will not (and will not allow anyone else to) submit or uploaded to or through the Service any: (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act, unless Customer and Outmarket enter into a Business Associate Addendum; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) categories of sensitive information as set forth in the applicable data privacy laws; or (e) illegal content.
3.3 Security.
Outmarket will comply with Outmarket’s security policy such as the annually updated reports or annual certifications of compliance with SOC 2 Type II and ISO 27001, including making industry standard efforts to secure the Service from unauthorized access, alteration, or use and other unlawful tampering.
3.4 Feedback and Usage Data.
Customer may, but is not required to, give Outmarket any suggestions, feedback, or comments about the Service or related offerings (collectively, “Feedback”). Outmarket may use all Feedback freely without any restriction or obligation. In addition, Outmarket may collect and analyze data and information about the provision, use, and performance of the Service and related offerings based on Customer’s or User’s use of the Service (collectively, “Usage Data”), and Outmarket may freely use Usage Data to maintain, improve, and enhance Outmarket’s Services and other services without restriction or obligation. However, Outmarket may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.
3.5 Customer Content.
Customer or Users may provide, submit, or upload written material, photos, other images, logos, or other data, information, or materials to the Service (collectively, “Customer Content”). Customer is responsible for the accuracy and content of Customer Content. Customer hereby grants Outmarket the right to copy, display, modify, and use Customer Content as needed to provide, support and maintain the Service and related offerings and for other development, diagnostic and corrective purposes in connection with the Service and other Outmarket offerings, provided however that Outmarket will not use Customer Content to train any artificial intelligence and machine learning models.
4. Payment & Taxes
4.1 Fees and Invoices.
All fees are in U.S. Dollars and are exclusive of taxes, except where required otherwise by applicable state law. Except for the prorated refund of prepaid fees allowed with specific termination rights expressly provided for herein, fees are non-refundable, even if Customer does not utilize the full amount of usage credits allocated to Customer for the fees paid. Outmarket will send invoices for fees applicable to the Services in accordance with the terms of the Order Form, or if not specified therein, on a monthly basis.
4.2 Payment.
Customer will pay Outmarket the fees and taxes in each invoice in U.S. Dollars within fifteen (15) days after receipt of an invoice. The payment method will be specified in the invoice. Service Fees may increase 10% per renewal upon 30 days prior written notice by the Outmarket to Customer, or such other amount mutually agreed upon in writing by the Outmarket and Customer. If there is no Order Form governing the payment, the payment and any other expenses must be paid through the third party payment processing system (the “PSP”) as indicated on the Service. Customer may be required to register with the PSP, agree to terms of service of the PSP, provide Customer’s payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Service Agreement”). By accepting these Terms of Service, you agree that you have downloaded or printed, and reviewed and agreed to, the PSP Service Agreement and PSP’s privacy policy available on such PSP’s website. Please note that Outmarket is not a party to the PSP Service Agreement and that Customer, the PSP and any other parties listed in the PSP Service Agreement are the parties to the PSP Service Agreement and that Outmarket has no obligations, responsibility or liability to any user or any other party under the PSP Service Agreement.
4.3 Taxes.
Customer is responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding, that Outmarket itemizes and includes in an invoice. However, Customer is not responsible for Outmarket’s income taxes.
4.4 Payment Dispute.
If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Outmarket about the dispute during the Payment Period for the invoice and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement or applicable laws.
5. Term & Termination
5.1 Subscription Period.
Each Order Form will start on the date thereof (the “Subscription Start Date”), continue for the term noted in the Order Form (the “Initial Subscription Period”), and automatically renew for additional terms equal in length as the Initial Subscription Period (each, a “Renewal Term” and together with the Initial Subscription Period, the “Subscription Period”) unless one party gives written notice of non-renewal to the other party at least 30 days before the end of the current Subscription Period.
5.2 Agreement Term.
These Terms of Service will start on the Subscription Start Date for the initial Order Form and continue until all Subscription Periods have ended.
5.3 Termination.
Either party may terminate these Terms of Service if the other party (a) fails to cure a material breach of the Agreement within 90 days after receiving written notice of the breach; (b) materially breaches the Agreement in a manner that cannot be cured (including non-payment); (c) dissolves or stops conducting business without a successor; (d) makes an assignment for the benefit of creditors; or (e) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days. A party must notify the other in writing of its reason for termination, and such reason must be in compliance with the terms of these Terms of Service.
5.4 Effect of Termination.
Termination of the Agreement will automatically terminate all Order Forms. Upon expiration or termination:
(a) Upon Customer’s written request, Outmarket will delete Customer Content within 60 days.
(b) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
(c) Outmarket will submit a final invoice for all outstanding fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes); provided that in the event the Agreement is terminated due to Customer’s failure to pay, such termination by Outmarket shall not relieve Customer of the obligation to pay all fees set forth in the then active Order Forms and/or Statements of Work, as applicable.
5.5 Survival.
(a) The following sections will survive expiration or termination of the Agreement: Section 2.1 (Customer Acceptable Use), Section 3.3 (Feedback and Usage Data), Section 4 (Payment & Taxes) for fees accrued or payable before expiration or termination, Section 5.4 (Effect of Termination), Section 5.5 (Survival), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 11 (Confidentiality), Section 12 (Proprietary Rights), Section 13 (General Terms), and the portions of these Terms of Service, Order Form, and/or Statement of Work referenced by these sections.
(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by applicable laws, in which case Section 3 (Data) and Section 11 (Confidentiality) will continue to apply to retained Confidential Information.
6. Representations & Warranties
6.1 Mutual.
Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into these Terms of Service and to grant the rights and licenses granted hereunder; (b) it is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its origin; and (c) it will comply with all applicable laws in performing its obligations or exercising its rights in these Terms of Service.
6.2 From Customer.
Customer represents and warrants (a) that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Service and to allow the use of Customer Content as described in the Agreement and (c) provide Outmarket with good faith cooperation and access to such information as may be reasonably required by Outmarket in order to provide the Service.
6.3 From Outmarket.
Outmarket represents and warrants to Customer that the Service will materially conform to the functionality described in the Documentation, and these Terms of Service. In the event of a breach of the foregoing warranty, Customer must give Outmarket written notice (with enough detail for Outmarket to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Outmarket will attempt to restore the general functionality of the Service. If Outmarket cannot resolve the issue, Customer may terminate the affected Order Form and Outmarket will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period or a prorated refund of prepaid fees for credits not yet consumed as of the termination of the Subscription Period. Outmarket’s restoration and reperformance obligations, and Customer’s termination right, are Customer’s only remedies if Outmarket does not meet the warranties in Section 6.3.
7. Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THESE TERMS OF SERVICE, THE PRODUCT AND ALL OTHER SERVICES PROVIDED BY OUTMARKET ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. OUTMARKET MAKES NO GUARANTEES THAT THE PRODUCT WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE WARRANTIES IN SECTION 6.3 DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PRODUCT BY CUSTOMER, ITS USERS, OR ANY PERSON UNDER CUSTOMER’S CONTROL, NOR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN OUTMARKET. WITHOUT LIMITING THE FOREGOING, , OUTMARKET DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
8. Limitation of Liability
8.1 Liability Caps.
EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO OUTMARKET IN THE 12 MONTH PERIOD IMMEDIATELY BEFORE THE PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.2 Indirect Damages Waiver.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR REVENUES, LOST DATA, OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES RELATING TO THESE TERMS OF SERVICE, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF THIS TYPE OF DAMAGE IN ADVANCE.
8.3 Exceptions.
The liability caps in Section 8.1 and the damages waiver in Section 8.2 do not apply to (i) Customer’s payment obligations; (ii) Customer’s breach of Section 2.1 (Customer Acceptable Use); (iii) either party’s indemnification obligations under Section 9 (Indemnification); or (iv) liability resulting from either party’s gross negligence or willful misconduct or for death or personal injury.
9. Indemnification
9.1 Protection by Outmarket.
Outmarket will defend Customer from and against all any third party claim, suit, or proceeding arising out of, related to, or alleging infringement or misappropriation of a third party’s patent, copyright, trade secret, or other intellectual property right as a result of Customer’s authorized use of the Service (“Outmarket Covered Claim”) , and will indemnify and hold harmless Customer against any damages, awards, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, finally awarded against Customer by a court of competent jurisdiction or agreed to in settlement that arise from the Outmarket Covered Claim.
9.2 Protection by Customer.
Customer will indemnify, defend, and hold harmless Outmarket from and against all damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses incurred by Outmarket in connection with any third party claim, suit, or proceeding (i) arising out of, related to, or alleging infringement or misappropriation of a copyright, trademark, or trade secret resulting from Outmarket’s authorized use of Customer Content; or (ii) arising out of, related to, or resulting from Customer’s breach or alleged breach of Section 2.1 (Customer Acceptable Use) (collectively, “Customer Covered Claims”).
9.3 Procedure.
The indemnifying party’s obligations in this section are contingent upon the indemnified party: (a) promptly notifying the indemnifying party of each Outmarket Covered Claim and Customer Covered Claims (collectively “Covered Claims”) for which it seeks protection; (b) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense; and (c) giving the indemnifying party sole control over the defense and settlement of each Covered Claim. A indemnified party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The indemnifying party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the indemnified party without the prior written consent of the indemnified party.
9.4 Changes to Service.
If required by settlement or court order, or if deemed reasonably necessary in response to a Outmarket Covered Claim, Outmarket may: (a) obtain the right for Customer to continue using the Service; (b) replace or modify the affected component of the Service without materially reducing the general functionality of the Service; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.
9.5 Exclusions.
Outmarket’s obligations as an indemnifying party will not apply to Outmarket Covered Claims that result from (i) modifications to the Service that were not authorized by Outmarket or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Service, including use in violation of these Terms of Service and including, without limitation, its failure to cease use of the Service after Outmarket’s direction pursuant to the Agreement and revisions to the Service made without Outmarket’s consent; (iii) use of the Service in combination with items not provided by Outmarket; (iv) use of an old version of the Service where a newer release made by Outmarket would avoid the Outmarket Covered Claim; (v) Output, and (vi) Outmarket’s creation or modification of the Service in compliance with specifications furnished by Customer.
9.6 Exclusive Remedy.
This Section 9 (Indemnification), together with any termination rights, describes Outmarket’s sole and exclusive liability, and Customer’s sole and exclusive remedy, with respect to any infringement claims relating to Customer’s use of the Service.
10. Insurance
During the Subscription Period, Outmarket will carry commercial insurance policies as follows:
10.1 Professional liability or errors and omissions insurance with a minimum limit of at least $5,000,000 in the aggregate;
10.2 Workers’ compensation insurance, covering employees in the states of New York and New Jersey, with a minimum limit for each accident/individual of at least $1,000,000 and equal to $1,000,000 in the aggregate;
10.3 Cyber liability insurance with a minimum limit for each occurrence of at least $5,000,000 and at least $5,000,000 in the aggregate; and
10.4 General liability insurance with a minimum limit of $1,000,000.
Upon request, Outmarket will give Customer a certificate of insurance evidencing its insurance policies that meet the foregoing. Outmarket’s insurance policies will not be considered as evidence of Outmarket’s liability.
11. Confidentiality
11.1 Non-Use and Non-Disclosure.
Unless otherwise authorized in the Agreement, the receiving party (“Recipient”) will (a) only use the Confidential information of the disclosing party (“Discloser”) to fulfill its obligations or exercise its rights under these Terms of Service; and (b) not disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care. As used herein, “Confidential Information” means non-public information that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Outmarket’s Confidential Information includes non-public information about the Service, including pricing terms.
11.2 Exclusions.
Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed, without use of or reference to Discloser’s Confidential Information, and has provided written evidence supporting such independent development to Discloser.
11.3 Required Disclosures.
Recipient may disclose Discloser’s Confidential Information to the extent required by applicable laws if, unless prohibited by applicable laws, Recipient provides the Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at the Discloser’s expense, with the Discloser’s efforts to obtain confidential treatment for the Confidential Information.
11.4 Permitted Disclosures.
Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 11 and Recipient remains responsible for everyone’s compliance with the terms of this Section 11.
12. Proprietary Rights
12.1 Ownership.
Outmarket retains all right, title, and interest in and to the Service. Except for the limited rights in Section 3.4 (Customer Content), Customer retains all right, title, and interest in and to the Customer Content.
12.2 Trademarks.
The service marks and trademarks of Outmarket, including without limitation Outmarket and Outmarket logos, are service marks owned by Outmarket. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. Customer may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
13. General Terms
13.1 Entire Agreement; Order of Precedence.
These Terms of Service together with each Order Form are the only agreement between the parties about its subject and these Terms of Service supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Outmarket expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. Notwithstanding the foregoing, if any terms and conditions contained in the Order Form conflict with any terms and conditions contained in these Terms of Service, the order of precedence is: (a) these Terms of Service; and (b) the Order Form.
13.2 Severability, and Waiver.
If any term of these Terms of Service is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of these Terms of Service will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in these Terms of Service will not constitute a waiver by that party of the term, option, or right.
13.3 Governing Law and Venue.
The law of the state of California will govern all interpretations and disputes about these Terms of Service, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about these Terms of Service in the state and federal courts located in Alameda County and each party irrevocably submits to the exclusive jurisdiction of such Courts.
13.4 Injunctive Relief.
Despite Section 13.3 (Governing Law and Venue), a breach of Section 11 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 11 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
13.5 Non-Exhaustive Remedies.
Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
13.6 Assignment.
Neither party may assign any rights or obligations under these Terms of Service without the prior written consent of the other party. However, either party may assign these Terms of Service upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which these Terms of Service relates. Any attempted but non-permitted assignment is void. These Terms of Service will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
13.7 Publicity.
Outmarket may identify Customer and use Customer’s logo and trademarks on Outmarket’s website and in marketing materials to identify Customer as a user of the Service. Customer hereby grants Outmarket a non-exclusive, royalty-free license to do so in connection with any marketing, promotion, or advertising of Outmarket or the Service during the length of the Agreement. Customer may identify Outmarket and use Outmarket’s logo and trademarks on Outmarket’s website and in marketing materials to identify Outmarket as a vendor of the Customer. Outmarket hereby grants Customer a non-exclusive, royalty-free license to do so in connection with any marketing, promotion, or advertising of Customer during the length of the Agreement. Customer agrees to participate, to the extent reasonably practical, in a Outmarket case study within six (6) months of the Subscription Start Date.
13.8 Notices.
Any notice, request, or approval about the Agreement must be in writing and sent, if to Outmarket, to 9696 Culver Blvd Suite 204, Culver City, CA 90232 and if to Customer, to the address associated with Customer’s Account. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
13.9 Independent Contractors.
The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
13.10 No Third-Party Beneficiary.
There are no third-party beneficiaries of these Terms of Service.
13.11 Attorney’s Fees.
In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.12 Force Majeure.
Neither party will be liable for a delay or failure to perform its obligations (other than payment obligations) of these Terms of Service if caused by an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event such as natural disaster like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure. If any such event prevents the Service from materially operating for 30 or more consecutive days, either party may terminate the applicable Order Form and Outmarket will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period following such termination.
13.13 Export Controls.
Customer may not remove or export from the United States or allow the export or re-export of the Service or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
13.14 Government Rights.
The Service is deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Service by the U.S. Government will be governed solely by the terms of these Terms of Service and all other use is prohibited.
13.15 Anti-Bribery.
Neither party will take any action that would be a violation of any applicable laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Outmarket or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
13.16 Titles and Interpretation.
Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to these Terms of Service.
The terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”) govern Customer’s use and access to the website located at https://outmarket.ai (together with any successor websites, the “Site”) and the products and services subscribed to by you, as set forth in the applicable Order Form (collectively with the Site, “Service”), all of which are provided by or on behalf of Outmarket AI Inc. (“Outmarket,” “we,” “us,” or “our”).
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS OF SERVICE OR BY CLICKING A CHECKBOX OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS OF SERVICE, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND THE OTHER TERMS INCORPORATED BY REFERENCE.
For purposes of these Terms of Service, “Customer”, “you” or “your” refers to the entity or person who has executed an Order Form with Outmarket. Customer represents and warrants that the individual accepting these Terms of Service on its behalf has the right, power and authority to act on behalf of and bind Customer.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. Outmarket will also use commercially reasonable efforts to notify you of any changes that materially and adversely affect your use of the Service prior to any such material changes taking effect, either through a pop-up on the Site, or email via the email address associated with your Account, or through other reasonable means. Customer’s use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
1. Service
1.1 Order Forms.
From time to time, you and Outmarket may enter into an order form setting forth the specific Service that Customer may access and use, pricing and other applicable terms (each, an “Order Form”).
1.2 Access and Use.
During the Subscription Period and subject to the terms and conditions of these Term of Use (including the Usage Limitations set forth in Section 2), Outmarket hereby grants Customer and its Users a non-exclusive, limited right to (a) access and use the Service; (b) copy and use any usage manuals and instructional materials made available by Outmarket for the Service (“Documentation”) only as needed to access and use the Service, in each case, for its internal business purposes; and (c) use all proposals, documents, dashboards and other information generated through Customer’s use of the Service, including sharing such materials with Customer’s clients.
1.3 User Accounts.
Customer must register and create an account to use the Service (an “Account”) and as part of that process will be requested to provide certain information, including without limitation Customer’s name and email address. By using the Service, Customer agrees to provide true, accurate, current and complete information as prompted by the registration process and to maintain and promptly update the Account information to keep it accurate, current and complete. Customer is responsible for all actions on accounts for Customer’s or its affiliates’ employees and other personnel permitted to access and use the Service (each, an “User”) and for Users’ compliance with these Terms of Service. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Outmarket if it suspects or knows of any fraudulent activity with its or its Users’ accounts, passwords, or credentials, or if they become compromised.
1.4 Use of AI Tools.
The Service include features and capabilities utilizing artificial intelligence, machine learning or similar technologies (collectively, “AI Functions”) developed by Outmarket and/or Outmarket’s third-party providers. When Customer provides Customer Content in connection with its use of Al Functions, Customer will receive output generated and returned by the Al Functions (“Output”). CUSTOMER BEAR ALL RISK WITH RESPECT TO THE USE OF ANY OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING OUTPUT AND ANY RISK WITH THE USE OF SUCH OUTPUT AND FOR ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OUTPUT.
2. Usage Limitations
2.1 Customer Acceptable Use.
(a) Except as expressly permitted by these Terms of Service, Customer will not (and will not allow any User or anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent applicable laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Service; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Service; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Service; (vi) access accounts, information, data, or portions of the Service to which Customer does not have explicit authorization; (vii) use the Service to develop a competing service or product; (viii) use the Service with any activity prohibited by applicable laws; (ix) use the Service to obtain unauthorized access to anyone else’s networks or equipment; (x) upload, submit, or otherwise make available to the Service any Customer Content to which Customer and Users do not have the proper rights; (xi) exploit AI Functions for spamming, scraping, impersonation, or generating deceptive content outside of permitted use, (xii) use the Service in a manner not compliant with the Documentation, or (xiii) otherwise use the Service in any manner not expressly permitted herein.
2.2 Usage Limits.
Customer’s use of the Service is subject to the usage limitations set forth in the applicable Order Form.
(a) If Customer uses the Service based on a specific number of seats as noted in the Order Form, then Customer shall ensure that each User account is used only by a single, named individual and not shared across multiple individuals or used to conduct business on behalf of multiple unaffiliated entities. Customer shall not permit any User account to be accessed or used concurrently or serially by more than one person, or to facilitate transactions for multiple end users beyond the licensed scope. Customer acknowledges that the Service is intended to support normal business usage patterns. If Customer’s usage exceeds 1500 Pages (as defined below) processed by any User in any month, then Outmarket may pursue remedies as set forth in Section 2.2(c) in addition to any other remedies available under appliable law.
(b) If Customer uses the Service based on a specified number of credits, then Customer acknowledges that each credit permits Customer to process one Page through the Service. As used herein, “Page” means a single rendered page as determined by the Service’s document processing engine whereby, (i) for PDF files, each PDF page constitutes one Page and (ii) for other file formats, the Service shall determine Page count based on standard rendering at US Letter size (8.5" x 11"). Each credit is consumed when an User uploads, inputs or otherwise provides the Page to or though the Service, and subsequent processing, re-processing, or referencing of such Page does not consume additional credits. All credits are allotted for the full Subscription Term and expire at the end of the Subscription Term. If the Service fails to process a Page solely due to the Service failing to comply with the limited warranty set forth in Section 6.3, Customer may dispute any credits charged for such Page as part of its dispute of the applicable Credit Report. Outmarket will make available a monthly report summarizing Customer’s credit usage for such month (the “Credit Report”). If Customer disputes any Credit Report, it will notify Outmarket in writing within thirty (30) days of the applicable Credit Report being made available and the parties will work together in good faith to resolve any such dispute. Any failure to dispute any credit usage within such thirty-day period will be deemed Customer’s acceptance of the Credit Report.
(c) Outmarket reserves the right to monitor usage patterns and audit accounts for compliance with this Section 2.2. Violations may result in additional usage charges imposed on Customer, the execution of a new Order Form for additional usage, suspension or termination of Customer’s account or such other remedies as may be reasonably imposed by Outmarket.
2.3 Suspension.
If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days after the payment is due in accordance with the invoice or applicable Order Form (“Payment Period”); (b) breaches Section 2.1 (Customer Acceptable Use); or (c) uses the Service in violation of the Agreement or in a way that materially and negatively impacts the Service or others, then Outmarket may temporarily suspend Customer’s access to the Service with or without notice. However, Outmarket will inform Customer before suspending Customer’s account when practical. Outmarket will reinstate Customer’s access to the Service only if Customer resolves the underlying issue before the end of the Subscription Period. The duration of any such suspension may be tacked on to the end of the Subscription Period in Outmarket’s sole discretion.
3. Data
3.1 Personal Data.
Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Outmarket. Both parties agree to be subject to the Data Processing Agreement, available at https://outmarket.ai/docs/dpa, the terms of which will control each party’s rights and obligations as to Personal Data. In the event of any conflict between the terms of this Agreement and the Data Processing Addendum, the terms of the Data Processing Addendum will control with respect to terms relating to Personal Data.
3.2 Prohibited Data.
Customer will not (and will not allow anyone else to) submit or uploaded to or through the Service any: (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act, unless Customer and Outmarket enter into a Business Associate Addendum; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) categories of sensitive information as set forth in the applicable data privacy laws; or (e) illegal content.
3.3 Security.
Outmarket will comply with Outmarket’s security policy such as the annually updated reports or annual certifications of compliance with SOC 2 Type II and ISO 27001, including making industry standard efforts to secure the Service from unauthorized access, alteration, or use and other unlawful tampering.
3.4 Feedback and Usage Data.
Customer may, but is not required to, give Outmarket any suggestions, feedback, or comments about the Service or related offerings (collectively, “Feedback”). Outmarket may use all Feedback freely without any restriction or obligation. In addition, Outmarket may collect and analyze data and information about the provision, use, and performance of the Service and related offerings based on Customer’s or User’s use of the Service (collectively, “Usage Data”), and Outmarket may freely use Usage Data to maintain, improve, and enhance Outmarket’s Services and other services without restriction or obligation. However, Outmarket may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.
3.5 Customer Content.
Customer or Users may provide, submit, or upload written material, photos, other images, logos, or other data, information, or materials to the Service (collectively, “Customer Content”). Customer is responsible for the accuracy and content of Customer Content. Customer hereby grants Outmarket the right to copy, display, modify, and use Customer Content as needed to provide, support and maintain the Service and related offerings and for other development, diagnostic and corrective purposes in connection with the Service and other Outmarket offerings, provided however that Outmarket will not use Customer Content to train any artificial intelligence and machine learning models.
4. Payment & Taxes
4.1 Fees and Invoices.
All fees are in U.S. Dollars and are exclusive of taxes, except where required otherwise by applicable state law. Except for the prorated refund of prepaid fees allowed with specific termination rights expressly provided for herein, fees are non-refundable, even if Customer does not utilize the full amount of usage credits allocated to Customer for the fees paid. Outmarket will send invoices for fees applicable to the Services in accordance with the terms of the Order Form, or if not specified therein, on a monthly basis.
4.2 Payment.
Customer will pay Outmarket the fees and taxes in each invoice in U.S. Dollars within fifteen (15) days after receipt of an invoice. The payment method will be specified in the invoice. Service Fees may increase 10% per renewal upon 30 days prior written notice by the Outmarket to Customer, or such other amount mutually agreed upon in writing by the Outmarket and Customer. If there is no Order Form governing the payment, the payment and any other expenses must be paid through the third party payment processing system (the “PSP”) as indicated on the Service. Customer may be required to register with the PSP, agree to terms of service of the PSP, provide Customer’s payment details to the PSP and go through a vetting process at the request of the PSP to set up an account with the PSP (the “PSP Service Agreement”). By accepting these Terms of Service, you agree that you have downloaded or printed, and reviewed and agreed to, the PSP Service Agreement and PSP’s privacy policy available on such PSP’s website. Please note that Outmarket is not a party to the PSP Service Agreement and that Customer, the PSP and any other parties listed in the PSP Service Agreement are the parties to the PSP Service Agreement and that Outmarket has no obligations, responsibility or liability to any user or any other party under the PSP Service Agreement.
4.3 Taxes.
Customer is responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding, that Outmarket itemizes and includes in an invoice. However, Customer is not responsible for Outmarket’s income taxes.
4.4 Payment Dispute.
If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Outmarket about the dispute during the Payment Period for the invoice and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement or applicable laws.
5. Term & Termination
5.1 Subscription Period.
Each Order Form will start on the date thereof (the “Subscription Start Date”), continue for the term noted in the Order Form (the “Initial Subscription Period”), and automatically renew for additional terms equal in length as the Initial Subscription Period (each, a “Renewal Term” and together with the Initial Subscription Period, the “Subscription Period”) unless one party gives written notice of non-renewal to the other party at least 30 days before the end of the current Subscription Period.
5.2 Agreement Term.
These Terms of Service will start on the Subscription Start Date for the initial Order Form and continue until all Subscription Periods have ended.
5.3 Termination.
Either party may terminate these Terms of Service if the other party (a) fails to cure a material breach of the Agreement within 90 days after receiving written notice of the breach; (b) materially breaches the Agreement in a manner that cannot be cured (including non-payment); (c) dissolves or stops conducting business without a successor; (d) makes an assignment for the benefit of creditors; or (e) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days. A party must notify the other in writing of its reason for termination, and such reason must be in compliance with the terms of these Terms of Service.
5.4 Effect of Termination.
Termination of the Agreement will automatically terminate all Order Forms. Upon expiration or termination:
(a) Upon Customer’s written request, Outmarket will delete Customer Content within 60 days.
(b) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
(c) Outmarket will submit a final invoice for all outstanding fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes); provided that in the event the Agreement is terminated due to Customer’s failure to pay, such termination by Outmarket shall not relieve Customer of the obligation to pay all fees set forth in the then active Order Forms and/or Statements of Work, as applicable.
5.5 Survival.
(a) The following sections will survive expiration or termination of the Agreement: Section 2.1 (Customer Acceptable Use), Section 3.3 (Feedback and Usage Data), Section 4 (Payment & Taxes) for fees accrued or payable before expiration or termination, Section 5.4 (Effect of Termination), Section 5.5 (Survival), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 11 (Confidentiality), Section 12 (Proprietary Rights), Section 13 (General Terms), and the portions of these Terms of Service, Order Form, and/or Statement of Work referenced by these sections.
(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by applicable laws, in which case Section 3 (Data) and Section 11 (Confidentiality) will continue to apply to retained Confidential Information.
6. Representations & Warranties
6.1 Mutual.
Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into these Terms of Service and to grant the rights and licenses granted hereunder; (b) it is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its origin; and (c) it will comply with all applicable laws in performing its obligations or exercising its rights in these Terms of Service.
6.2 From Customer.
Customer represents and warrants (a) that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Service and to allow the use of Customer Content as described in the Agreement and (c) provide Outmarket with good faith cooperation and access to such information as may be reasonably required by Outmarket in order to provide the Service.
6.3 From Outmarket.
Outmarket represents and warrants to Customer that the Service will materially conform to the functionality described in the Documentation, and these Terms of Service. In the event of a breach of the foregoing warranty, Customer must give Outmarket written notice (with enough detail for Outmarket to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Outmarket will attempt to restore the general functionality of the Service. If Outmarket cannot resolve the issue, Customer may terminate the affected Order Form and Outmarket will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period or a prorated refund of prepaid fees for credits not yet consumed as of the termination of the Subscription Period. Outmarket’s restoration and reperformance obligations, and Customer’s termination right, are Customer’s only remedies if Outmarket does not meet the warranties in Section 6.3.
7. Disclaimer of Warranties
EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THESE TERMS OF SERVICE, THE PRODUCT AND ALL OTHER SERVICES PROVIDED BY OUTMARKET ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. OUTMARKET MAKES NO GUARANTEES THAT THE PRODUCT WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE WARRANTIES IN SECTION 6.3 DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PRODUCT BY CUSTOMER, ITS USERS, OR ANY PERSON UNDER CUSTOMER’S CONTROL, NOR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN OUTMARKET. WITHOUT LIMITING THE FOREGOING, , OUTMARKET DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.
8. Limitation of Liability
8.1 Liability Caps.
EACH PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO OUTMARKET IN THE 12 MONTH PERIOD IMMEDIATELY BEFORE THE PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.2 Indirect Damages Waiver.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR REVENUES, LOST DATA, OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES RELATING TO THESE TERMS OF SERVICE, EVEN IF THE PARTY IS INFORMED OF THE POSSIBILITY OF THIS TYPE OF DAMAGE IN ADVANCE.
8.3 Exceptions.
The liability caps in Section 8.1 and the damages waiver in Section 8.2 do not apply to (i) Customer’s payment obligations; (ii) Customer’s breach of Section 2.1 (Customer Acceptable Use); (iii) either party’s indemnification obligations under Section 9 (Indemnification); or (iv) liability resulting from either party’s gross negligence or willful misconduct or for death or personal injury.
9. Indemnification
9.1 Protection by Outmarket.
Outmarket will defend Customer from and against all any third party claim, suit, or proceeding arising out of, related to, or alleging infringement or misappropriation of a third party’s patent, copyright, trade secret, or other intellectual property right as a result of Customer’s authorized use of the Service (“Outmarket Covered Claim”) , and will indemnify and hold harmless Customer against any damages, awards, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, finally awarded against Customer by a court of competent jurisdiction or agreed to in settlement that arise from the Outmarket Covered Claim.
9.2 Protection by Customer.
Customer will indemnify, defend, and hold harmless Outmarket from and against all damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses incurred by Outmarket in connection with any third party claim, suit, or proceeding (i) arising out of, related to, or alleging infringement or misappropriation of a copyright, trademark, or trade secret resulting from Outmarket’s authorized use of Customer Content; or (ii) arising out of, related to, or resulting from Customer’s breach or alleged breach of Section 2.1 (Customer Acceptable Use) (collectively, “Customer Covered Claims”).
9.3 Procedure.
The indemnifying party’s obligations in this section are contingent upon the indemnified party: (a) promptly notifying the indemnifying party of each Outmarket Covered Claim and Customer Covered Claims (collectively “Covered Claims”) for which it seeks protection; (b) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense; and (c) giving the indemnifying party sole control over the defense and settlement of each Covered Claim. A indemnified party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The indemnifying party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the indemnified party without the prior written consent of the indemnified party.
9.4 Changes to Service.
If required by settlement or court order, or if deemed reasonably necessary in response to a Outmarket Covered Claim, Outmarket may: (a) obtain the right for Customer to continue using the Service; (b) replace or modify the affected component of the Service without materially reducing the general functionality of the Service; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.
9.5 Exclusions.
Outmarket’s obligations as an indemnifying party will not apply to Outmarket Covered Claims that result from (i) modifications to the Service that were not authorized by Outmarket or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Service, including use in violation of these Terms of Service and including, without limitation, its failure to cease use of the Service after Outmarket’s direction pursuant to the Agreement and revisions to the Service made without Outmarket’s consent; (iii) use of the Service in combination with items not provided by Outmarket; (iv) use of an old version of the Service where a newer release made by Outmarket would avoid the Outmarket Covered Claim; (v) Output, and (vi) Outmarket’s creation or modification of the Service in compliance with specifications furnished by Customer.
9.6 Exclusive Remedy.
This Section 9 (Indemnification), together with any termination rights, describes Outmarket’s sole and exclusive liability, and Customer’s sole and exclusive remedy, with respect to any infringement claims relating to Customer’s use of the Service.
10. Insurance
During the Subscription Period, Outmarket will carry commercial insurance policies as follows:
10.1 Professional liability or errors and omissions insurance with a minimum limit of at least $5,000,000 in the aggregate;
10.2 Workers’ compensation insurance, covering employees in the states of New York and New Jersey, with a minimum limit for each accident/individual of at least $1,000,000 and equal to $1,000,000 in the aggregate;
10.3 Cyber liability insurance with a minimum limit for each occurrence of at least $5,000,000 and at least $5,000,000 in the aggregate; and
10.4 General liability insurance with a minimum limit of $1,000,000.
Upon request, Outmarket will give Customer a certificate of insurance evidencing its insurance policies that meet the foregoing. Outmarket’s insurance policies will not be considered as evidence of Outmarket’s liability.
11. Confidentiality
11.1 Non-Use and Non-Disclosure.
Unless otherwise authorized in the Agreement, the receiving party (“Recipient”) will (a) only use the Confidential information of the disclosing party (“Discloser”) to fulfill its obligations or exercise its rights under these Terms of Service; and (b) not disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care. As used herein, “Confidential Information” means non-public information that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Outmarket’s Confidential Information includes non-public information about the Service, including pricing terms.
11.2 Exclusions.
Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed, without use of or reference to Discloser’s Confidential Information, and has provided written evidence supporting such independent development to Discloser.
11.3 Required Disclosures.
Recipient may disclose Discloser’s Confidential Information to the extent required by applicable laws if, unless prohibited by applicable laws, Recipient provides the Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at the Discloser’s expense, with the Discloser’s efforts to obtain confidential treatment for the Confidential Information.
11.4 Permitted Disclosures.
Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 11 and Recipient remains responsible for everyone’s compliance with the terms of this Section 11.
12. Proprietary Rights
12.1 Ownership.
Outmarket retains all right, title, and interest in and to the Service. Except for the limited rights in Section 3.4 (Customer Content), Customer retains all right, title, and interest in and to the Customer Content.
12.2 Trademarks.
The service marks and trademarks of Outmarket, including without limitation Outmarket and Outmarket logos, are service marks owned by Outmarket. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. Customer may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
13. General Terms
13.1 Entire Agreement; Order of Precedence.
These Terms of Service together with each Order Form are the only agreement between the parties about its subject and these Terms of Service supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Outmarket expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. Notwithstanding the foregoing, if any terms and conditions contained in the Order Form conflict with any terms and conditions contained in these Terms of Service, the order of precedence is: (a) these Terms of Service; and (b) the Order Form.
13.2 Severability, and Waiver.
If any term of these Terms of Service is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of these Terms of Service will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in these Terms of Service will not constitute a waiver by that party of the term, option, or right.
13.3 Governing Law and Venue.
The law of the state of California will govern all interpretations and disputes about these Terms of Service, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about these Terms of Service in the state and federal courts located in Alameda County and each party irrevocably submits to the exclusive jurisdiction of such Courts.
13.4 Injunctive Relief.
Despite Section 13.3 (Governing Law and Venue), a breach of Section 11 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 11 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
13.5 Non-Exhaustive Remedies.
Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
13.6 Assignment.
Neither party may assign any rights or obligations under these Terms of Service without the prior written consent of the other party. However, either party may assign these Terms of Service upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which these Terms of Service relates. Any attempted but non-permitted assignment is void. These Terms of Service will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
13.7 Publicity.
Outmarket may identify Customer and use Customer’s logo and trademarks on Outmarket’s website and in marketing materials to identify Customer as a user of the Service. Customer hereby grants Outmarket a non-exclusive, royalty-free license to do so in connection with any marketing, promotion, or advertising of Outmarket or the Service during the length of the Agreement. Customer may identify Outmarket and use Outmarket’s logo and trademarks on Outmarket’s website and in marketing materials to identify Outmarket as a vendor of the Customer. Outmarket hereby grants Customer a non-exclusive, royalty-free license to do so in connection with any marketing, promotion, or advertising of Customer during the length of the Agreement. Customer agrees to participate, to the extent reasonably practical, in a Outmarket case study within six (6) months of the Subscription Start Date.
13.8 Notices.
Any notice, request, or approval about the Agreement must be in writing and sent, if to Outmarket, to 9696 Culver Blvd Suite 204, Culver City, CA 90232 and if to Customer, to the address associated with Customer’s Account. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
13.9 Independent Contractors.
The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
13.10 No Third-Party Beneficiary.
There are no third-party beneficiaries of these Terms of Service.
13.11 Attorney’s Fees.
In any action or proceeding to enforce rights under these Terms of Service, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.12 Force Majeure.
Neither party will be liable for a delay or failure to perform its obligations (other than payment obligations) of these Terms of Service if caused by an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event such as natural disaster like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure. If any such event prevents the Service from materially operating for 30 or more consecutive days, either party may terminate the applicable Order Form and Outmarket will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period following such termination.
13.13 Export Controls.
Customer may not remove or export from the United States or allow the export or re-export of the Service or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
13.14 Government Rights.
The Service is deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Service by the U.S. Government will be governed solely by the terms of these Terms of Service and all other use is prohibited.
13.15 Anti-Bribery.
Neither party will take any action that would be a violation of any applicable laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Outmarket or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
13.16 Titles and Interpretation.
Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to these Terms of Service.