OutSystems Early Access Software Test Agreement

Updated: Wednesday, July 15, 2020 - 17:10 GMT

This OutSystems Early Access Software Test Agreement (the "Agreement") is entered into as of the Effective Date by and between OutSystems and Company. Each is a "Party"; together they are the "Parties".

1. DEFINITIONS

"Application" means the computer application developed through the use of the Software or any third-party Software tools integrated or managed by the Software.

"Confidential Information" refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party's data and each Party's proprietary Software and computer operations, all code, inventions, algorithms, business concepts, workflow, marketing, financial, business and technical information, the terms and pricing under this Agreement, authentication credentials associated with the use of the Software and the Professional Services, Personal Data and all information either clearly identified as confidential or that is of a nature that a reasonable person would understand to be confidential.

"Documentation" shall mean the printed or online written reference material furnished to Company in conjunction with the Early Access Software, including, without limitation, instructions, testing guidelines, and end user guides.

"Early Access Software" shall mean the early access version of OutSystems' software and related software components, in object form only, and the media and Documentation provided by OutSystems to Company and for which Company is granted a use license pursuant to this Agreement.

"Intellectual Property" means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as "Intellectual Property Rights.‍

"Software" means the OutSystems software, including its updates, upgrades, platform as a service, documentation, a description of which is set out at https://www.outsystems.com/evaluation-guide/.

"Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Early Access Software.

2. LICENSE GRANT, USE AND OWNERSHIP

2.1 Limited License. Subject to the terms and conditions of this Agreement, OutSystems grants to Company a non-exclusive, non-transferable license (without the right to sublicense), as from the Effective Date, to: (i) use the Early Access Software in accordance with the Documentation solely for purposes of internal testing and evaluation, unless OutSystems gives Company prior written consent to use the Early Access Software for production purposes; (ii) use the Documentation provided with the Early Access Software in support of Company's authorized use of the Early Access Software; and (iii) copy Early Access Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.

2.2 Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Early Access Software and Documentation. In furtherance of this purpose, Company shall provide, at no cost and without any claim whatsoever to ownership, title, remuneration or compensation of any kind, feedback and testimonials to OutSystems concerning the functionality and performance of the Early Access Software from time to time as reasonably requested by OutSystems, including, without limitation, identifying potential errors and improvements. Such feedback and testimonials will be in a manner convenient to Company and will be subject to reasonable availability of Company's personnel. Notwithstanding the foregoing, prior to Company disclosing to OutSystems any information in connection with this Agreement which Company considers proprietary or confidential, Company shall obtain OutSystems' prior written approval to disclose such information to OutSystems, and without such prior written approval from OutSystems, Company shall not disclose any such information to OutSystems. If that disclosure takes place without OutSystems' prior consent the Company will be deemed to have waived any claim to that information.

2.3 Evaluation Feedback Publicity. Unless Company notifies OutSystems of the contrary within 10 Business Days upon OutSystems request, Company is deemed to authorize OutSystems to use its testimonial, name and trademarks for reference purposes (such purposes including the reference in commercial proposals, the OutSystems' website, and marketing materials related thereto).

2.4 Restrictions. Company shall not copy or use the Early Access Software (including the Documentation) except as expressly permitted in this Agreement. Company will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Early Access Software or accompanying Documentation. In no event shall Company use the Early Access Software in a production environment, unless OutSystems gives Company prior written consent to use the Early Access Software for production purposes. The Early Access Software and all performance data and test results, including without limitation, benchmark test results (collectively "Performance Data"), relating to the Early Access Software are the Confidential Information of OutSystems, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Company shall not publish or disclose to any third party any Performance Data relating to the Early Access Software.

2.5 Ownership. OutSystems shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Early Access Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2.2 hereof. Company does not acquire any other rights, express or implied, in the Early Access Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO OUTSYSTEMS.

2.6 Limited Support Services. In the event OutSystems, in its sole discretion, supplies any support services or Update to Company, such support services and Update shall be deemed Early Access Software hereunder and shall be subject to the terms and conditions of this Agreement.

3. TERM AND TERMINATION

Company's rights with respect to the Early Access Software will terminate upon the earlier of (i) 12 months after the initial commercial release by OutSystems of the Early Access Software or (ii) automatic expiration of the Early Access Software based on the system date. Either Party may terminate this Agreement at any time for any reason or no reason by providing the other Party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Company under this Agreement shall immediately terminate, and Company shall immediately cease using, and will return to OutSystems (or, at OutSystems' request, destroy and so certify it in writing), the Early Access Software, Documentation, and all other tangible items in Company's possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the Parties set forth in Sections 2.2, 2.3, 2.4, 2.5, 3, 4, 5, 6 and 7 shall survive termination or expiration of this Agreement for any reason.

4. CONFIDENTIALITY

4.1 Use and Disclosure. During this Agreement and for a period of 3 (three) years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party's employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.

4.2 Permitted Disclosures. Either Party may disclose Confidential Information of the other Party either: (i) in response to a valid order by a court or other governmental or regulatory body, or (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement. Disclosing Party will promptly give notice to the receiving Party of such compelled disclosure and allows receiving Party to object or to seek a protective order, to the extent legally permitted.

4.3 Non-Confidential Information. The Parties shall not be obligated under this Section 4 ("Confidentiality") with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party's lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.

4.4 Destruction or Return. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving Party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.

5. LIMITATION OF LIABILITY

IT IS UNDERSTOOD THAT THE EARLY ACCESS SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF OUTSYSTEMS AND ITS SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE FEES COMPANY PAID OUTSYSTEMS FOR THE RELEVANT EARLY ACCESS SOFTWARE, IF ANY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUTSYSTEMS OR ITS SUPPLIERS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF OUTSYSTEMS AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. WARRANTY DISCLAIMER

6.1 IT IS UNDERSTOOD THAT THE EARLY ACCESS SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EARLY ACCESS SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OUTSYSTEMS AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

6.2 Company acknowledges that OutSystems: (i) has not promised or guaranteed to Company that such Early Access Software will be announced or made commercially available in the future, (ii) has no express or implied obligation to Company to announce or introduce the Early Access Software, and (iii) does not warrant that it will introduce in the market a product similar or compatible with the Early Access Software. Accordingly, Company acknowledges that OutSystems shall bear no risk for any research or development that Company performs regarding the Early Access Software or any product associated thereto. Specifically, the Early Access Software may contain features, functionality or modules that will not be included in the production version of the Early Access Software, if released, or that will be marketed separately for additional fees.

7. INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE

7.1 OutSystems' Intellectual Property. Company acknowledges and agrees that all Intellectual Property Rights in and to the Software and Professional Services are owned by OutSystems and shall, notwithstanding the terms of this Agreement, remain vested in OutSystems. Unless otherwise expressly provided in this Agreement, Company shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in the Software. All rights not expressly granted by OutSystems herein are reserved.

7.2 Customer's Intellectual Property. OutSystems acknowledges and agrees that all Intellectual Property Rights in and to the Company developed Applications are owned by Company and shall, notwithstanding the terms of this Agreement, remain vested in Company. Unless otherwise expressly provided in this Agreement, OutSystems shall not acquire any proprietary right, title or interest in or to any Intellectual Property Rights in Company's developed Applications. Subject to the terms and conditions of this Agreement (including, if applicable, the payment of all agreed fees and Expenses) Company shall also own all Intellectual Property Rights in the deliverables.

8. FINAL PROVISIONS

8.1 Governing Law and Jurisdiction. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the Laws of Laws of Portugal, without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the court of the "Tribunal de Comarca de Lisboa", and the Parties agree and submit to the personal and exclusive jurisdiction and venue of this court, albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement. The Parties agree that they will participate in the mediation in good faith, and that they will share equally its costs.

8.2 Assignment. Company shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of OutSystems. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

8.3 Modification. This is the entire agreement between the Parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each Party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.

8.4 Notices and Contact Information. Any notice, consent, approval, or other communication intended to have legal effect to be given under this Agreement ("Notices") must be in writing and will be delivered (as elected by the Party giving such notice): (i) by email to legal@outsystems.com or to the email address of the Company (ii) by registered mail. Unless otherwise provided herein, all Notices will be deemed effective on the date of receipt (or if delivery is refused, the date of such refusal) if delivered by registered mail and at 9.00 am of the next business day after the date of the transmission by email. Notices shall be written in the English language. Additionally, if you have any questions about this Agreement you may use the e-mail address legal@outsystems.com.

8.5 Language. The Parties have agreed to draw up this Agreement in the English language.