Outplay's terms of service

Terms of Service
These Terms of Use (“Terms”) describe the terms under which Appvirality Inc (“We”, “Our” “Us”) provide a subscriber access to and use of Our Service(s) (“You”, “Your”, “Yourself”). By accessing and/or using Our Service, a) You agree to be bound by these Terms and acknowledge having read the privacy policy b) You warrant to us that you are of 18 years or above and are competent to enter into this agreement c) That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company or its groups to these Terms. If You do not agree to these Terms, You should immediately cease using our Service(s).

You and Us will be individually referred to as “Party” and collectively as “Parties”.

Subject to Your compliance with these Terms and solely during the Subscription Term, You shall have the limited, non-exclusive, revocable right to access and use the Service(s) for your internal business purposes in accordance with the subscription plan as specifically stated in Our Website.

Your Account: Your access and use of the Service(s) is restricted to the specified number of individual Users as specified in the relevant Order Form executed between Us and Yourself. Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (c) use the Service(s), store or transmit Customer Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (d) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (e) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software;  (f) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);You represent and warrant to Us that You own or have the necessary rights to transmit the Customer Data to Us and that doing so does not violate any applicable law, proprietary or privacy rights.

You may request a demo of Our Service(s) or a trial of the Service(s) by creation of accounts for trial use for a limited period of time (“Trial Period”). The Trial Period shall be subject to these Terms and any additional terms that We specify. We, in our sole discretion, shall have the right to terminate the Service(s) and Your right to use the Service(s) at any time during the Trial Period and for any reason, without being liable to You. Any enhancements, new features or updates (“Updates”) to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.The Service(s) may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case We shall use commercially reasonable endeavours to notify You in advance.

Except for the rights granted to You under clause 1, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Service(s), including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us.You own the rights to the Customer Data that You provide to Us. We do not claim ownership over such Customer Data. We shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from You.We reserve our rights to re-use any and all techniques and know-how gathered by Us while providing the Services to You.All rights not expressly provided to You herein are reserved.

You acknowledge and agree that Your use of Third-party Services will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Services, including Your data processed by such third party. You should contact that Third- party service provider for any issues arising in connection with use of such Third-party Service. 

Subscription Charges:  All charges associated with Your Account shall be based on the plan You have subscribed at the prices listed at Our Website (“Subscription Charges”) and any other details regarding such Subscription Charges shall be mentioned in an Order Form. The Subscription Charges are due in full and payable in advance in accordance with clause 6.2, when You subscribe to the Service(s).Payment: You agree to provide Us with your credit card information for billing purposes (“Payment Method”), and that You represent and warrant that you are authorized to use the designated payment method and that You authorize Us (or our third-party payment processor) to charge your Payment Method for the total amount of your Subscription Charges. We shall invoice You at the beginning of each month and all payments are due immediately on receipt of the invoice. Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s).Late Payments/Non-payment of Subscription Charges: We will notify You in the event We do not receive payment towards Subscription Charges within the due date. We must receive payments within a maximum of ten (10) days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may suspend Your access to and use of the Service(s) until We receive Your payment towards the Subscription Charges as specified and/or terminate Your Account.Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).

Termination by You: You may terminate one or more of your Account(s) and subscription to the Services by providing Us a prior written notice of 30 (thirty) days, but will remain liable for all Subscription Charges for the Subscription Term. Unless Your Account and subscription to the Services is terminated, Your subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at Our then prevailing Subscription Charges.Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of these Terms. We will notify You if your activities violate These Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated. We may also terminate a Trial Period in accordance with clause 3.1. Further, We also reserve the right to terminate Your Account at any time by written notice due to business reasons which shall include discontinuation of the Services.   Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, We shall delete all Customer Data in accordance with (a) these Terms; (b) Our Privacy Policy and; (c) if applicable, data processing agreement signed between the Parties.

If You choose, or are provided with, a user identification code, login, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We shall have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms. We will not be responsible for any activities, including any attempted or actual access or loss of data occurring in Your Account as a result of your non-compliance of obligations under this clause.Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this clause shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.Security of Customer Data: We shall use appropriate technical and organizational measures to protect the Customer Data as specified in the Security Policy. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us.You understand and acknowledge that, in connection with the use of the Service by Yourself, Your Users and/or End Users, We Process any Personal Data only on Your behalf and we both hereby agree that You shall be deemed to be the data controller and We shall be deemed to be the data processor as those terms are understood under the GDPR. We shall Process such Personal Data only for the purposes of providing the Service(s) including support services and in accordance with these Terms and applicable data privacy laws.You acknowledge and agree that We may access or disclose information about You, Your Account, Users, including Customer Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities. During the Subscription Term, You agree and acknowledge that We shall have the right to collect data (only aggregated and anonymized) regarding Your Use of the Service(s) for the purpose of providing, maintaining, supporting and improving  the Service(s).You shall not disclose (and shall not permit any individual to disclose) any special categories of personal data (as defined under GDPR) to Us for Processing. We shall ensure that any person We authorize to Process Customer Data shall protect the Customer Data in accordance with Our confidentiality obligations under these Terms.You consent to Us engaging third party sub-processors to process service data for provision of the Service provided that: (i) We maintain an up-to-date list of its sub-processors in the Security Policy which We shall update with details of any change in sub-processors prior to any such change; (ii) We impose data protection terms on any sub-processor We appoint that require them to protect the data to the standard required by applicable data protection law; and (iii) We remain liable for any breach of this clause that is caused by an act, error or omission of the sub-processor. You may object to Our appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such an event, We will either not appoint or replace the sub-processor or, if this is not possible, You may terminate your Account (without prejudice to any fees incurred by You prior to suspension or termination).We shall reasonably assist You, at Your expense, to enable You to respond to any request from a data subject to exercise any of its rights under applicable data protection law (including its rights of access, correction, objection, erasure and data portability, as applicable). In the event that any such request, correspondence, enquiry or complaint is made directly to Us, We shall promptly inform You providing full details of the same.We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws.

THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.LIMITATION OF LIABILITYTO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU FOR THE SERVICE(S) PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, WE DISCLAIM ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES OFFERED DURING THE TRIAL PERIOD.INDEMNIFICATIONIndemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Service(s) subscribed infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We shall at our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You shall fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone apart from Us; or (iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing. If Your use of the Service(s) has become, or in Our opinion is likely to become, the subject of any IP Claim, We may at Our own option and expense (a) procure the right for You to continue using the Service(s) as set forth hereunder; (b) replace or modify the Service(s) to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us , terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges that You had previously paid Us for the corresponding unused portion. This clause 11.1 states Our sole, exclusive and entire liability to You and constitutes Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s).Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 2 of these Terms provided that (a) We promptly notify You of the threat or notice of such a claim, (b) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) We shall fully cooperate with You in connection therewith.MISCELLANEOUSAssignment: This Agreement and any rights or obligations hereunder may not be assigned by You without Our prior written consent, whereas We can assign any of our rights and obligations hereunder without Your prior written consent. This Agreement binds, and inures to the benefit of, the Parties and their respective successors and permitted assigns.Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment.Severability; No Waiver: If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of These Terms.Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7 (Term, Suspension and Termination), 8 (Confidentiality, Data Privacy and Security), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of Our agreement with Yourself regarding the use of the Service(s). Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of These Terms.Notices and Consent to Electronic Communications: All notices from Us under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided to Your Account. Our address for a notice is: Appvirality Inc at 1013 Centre Rd, Wilmington, Delaware 19805, USA with a CC to lax [at] outplayhq [dot] com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our websites and/or marketing collateral and to include Your use of the Services in case studies.Governing Law and Dispute Resolution: These Terms shall be governed by the laws of the State of Delaware, USA without regard to any conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts at Delaware, USA. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”), and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.   Entire Agreement: These Terms, together with any Order Forms, constitute the entire agreement, and supersede any and all prior agreements between Us and Yourself with regard to the subject matter hereof. In the event of a conflict between the terms of any Order Form and these Terms, the Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Service(s) caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Customer Data), or acts undertaken by third parties, including without limitation, distributed denial of Service attacks.DEFINITIONSWhen used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:
Account: means any accounts or instances created by You or on Your behalf for access and use of the Services.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits access to certain functionality provided by the Service(s).
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of These Terms, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Customer Data: means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Services by You through Your Account in connection with Your use of the Services.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.
End User: means any person or entity other than You or Your Users with whom You interact using the Service(s).
GDPR: shall mean the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation).
Order Form: means any service order form or statement of work specifying the Service(s) subscribed to, particular features and functionalities in the Service(s) that You wish to avail and the Subscription Term.
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service(s): means the cloud-based proprietary sales engagement platform called Outplay and any new services that We may introduce as a Service to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the API and any Documentation.
Subscription Term: means the period during which You have agreed to subscribe to the Service(s) specified in the relevant Order Form.
Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Service(s) through APIs.
User: means those who are designated users within the Service(s), including an Account administrator, agents and other designated users.
Website(s) shall mean the websites owned and operated by Us including Outplay (outplayhq.com).

All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and with holding taxes) associated with this Agreement or Customer's receipt or use of the service and Maintenance Services. In the event that Company or Reseller is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Company or Reseller. If Customer pays any withholdings taxes that are required to be paid under applicable law, Customer will furnish Company or Reseller with written documentation of all such tax payments, including receipts.

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