OutcomeCatalyst Hosted Terms and Conditions
TERMS AND CONDITIONS FOR OUTCOMECATALYST HOSTED
These terms and conditions (“Ts and Cs”) apply to all OutcomeCatalyst Hosted offerings provided by OutcomeCatalyst under statements of work referencing them, and are incorporated into such statements of work as if fully set forth therein.
​
1. DEFINITIONS
1.1. "Statement of Work" or “SOW" means the document that provides the scope of services for an engagement or project, commercial terms and other engagement or project specific information and through which Client orders certain services from OutcomeCatalyst.
1.2. “Affiliate” means, with respect to any entity, any other entity that owns or controls, is owned or controlled by, or is under common ownership or control with such entity.
1.3. “Associate(s)”: means the resources, employees and subcontractors of either party deployed on the Clients projects for providing or receiving Services.
2. REPRESENTATIONS AND WARRANTIES
OutcomeCatalyst and Client each hereby represents and warrants that it is duly organized, validly existing and in good standing under the laws of its respective country/state of incorporation and has corporate power to carry on its businesses and to enter into these Ts and Cs.
3. INCONSISTENCY BETWEEN THESE TS AND CS AND SOW
In the event of an inconsistency between these Ts and Cs and any SOW, the terms and conditions of the applicable SOW shall govern and control but only with respect to such SOW, provided that the SOW expressly overrides the conflicting provision of these Ts and Cs.
4. SERVICES
4.1. Services. Subject to the payment by Client of the applicable fees, OutcomeCatalyst shall provide certain services ("Services"), and/or to deliver to Client related deliverables (“Deliverables”) and other materials to Client as specified in the applicable SOW. Client’s Affiliates may obtain Services from OutcomeCatalyst or its Affiliate’s under the terms of these Ts and Cs as if such Affiliate were party hereto, provided that each party shall remain liable for any of its Affiliate's obligations.
4.2. Statement of Work. A SOW will be required for each project, and shall specify the purpose and scope of the Services, the responsibilities of each party, the Deliverables, fees and payment terms for the Services described therein, and any other specific requirements. OutcomeCatalyst has no obligations of performance for any Services not described in a mutually executed SOW.
4.3. Changes. Changes to a SOW shall be made only in writing executed by authorized representatives of both parties. OutcomeCatalyst shall have no obligation to commence work in connection with any change until the fee and/or schedule impact of the change is agreed to in writing by the parties by an amendment to SOW. No changes or additions in the Services may be implemented or acted upon by the Client.
5. CLIENT RESPONSIBILITIES
5.1. Information Reliance. Client will provide accurate and complete information and cooperation to OutcomeCatalyst with respect to the purpose and scope of each project, Deliverables, and other requirements that may affect the project. OutcomeCatalyst and its personnel have no obligations or responsibility whatsoever for any failure, delay, liability or costs resulting from false, inaccurate or incomplete information or cooperation provided to OutcomeCatalyst by Client.
5.2. Associates. Parties agree that OutcomeCatalyst has a right to replace any Associate(s) deployed on project for any reason or no reason. If an Associate(s) is deployed at Client’s or Client’s customer’s premises, Client shall provide OutcomeCatalyst Associate(s) necessary infrastructure, hardware, software (“Tools”) as mutually agreed between parties, for performance of Services and satisfactory delivery of deliverables.
5.3. Other. Any third-party license or software as required to be procured specifically for the execution of services shall be procured by Client. Any infringement caused by use of licenses by OutcomeCatalyst, Client hereby indemnifies and holds harmless OutcomeCatalyst against the same. For avoidance of doubt, OutcomeCatalyst has no obligations or liability whatsoever for any third-party products or services or for any failure, delay, liability, or cost resulting from or relating to any such third-party products or services. OutcomeCatalyst does not make and hereby expressly disclaims any warranties relating to third-party products or services.
6. PROPRIETARY MATERIALS
OutcomeCatalyst Materials. In the course of performance hereunder, OutcomeCatalyst may use or develop (and may authorize Client personnel to use in the performance of Services under these Ts and Cs) certain proprietary materials, tools and methodologies (“OutcomeCatalyst Material"). These materials are made available without express or implied warranties of any kind and remain the property of OutcomeCatalyst. Nothing shall grant Client any ownership, right, title or other interest in or to such OutcomeCatalyst Material or modifications to OutcomeCatalyst Material. Client shall not re-license, reverse engineer, decompile or disassemble any OutcomeCatalyst Material, Deliverables, or any other material provided to Client by OutcomeCatalyst under these Ts and Cs. Upon payment in full, Client shall have a perpetual, worldwide, nonexclusive, royalty-free license to use, reproduce, display, modify and distribute the OutcomeCatalyst Materials internally, solely to support Client’s use of the Deliverables under these Ts and Cs within the scope described in the applicable SOW. For avoidance of doubt, Client may not externally distribute or commercialize any materials, including without limitation any Deliverables, provided by OutcomeCatalyst to Client under these Ts and Cs.
7. PAYMENT PROVISIONS
7.1. Fees. Client shall pay OutcomeCatalyst for the Services as specified in the applicable SOW and these Ts and Cs. Unless provided otherwise in the applicable SOW, Client also shall reimburse OutcomeCatalyst for all reasonable, actual expenses incurred by OutcomeCatalyst, its employees and consultants, in the performance of the services, including, but not limited to, travel and lodging expenses, communications charges etc.
7.2. Invoicing and Payment. All fees shall be payable thirty (30) days from the date of invoice and in accordance with terms defined within SOW,and shall be deemed overdue if they remain unpaid thereafter. Any amount payable by Client hereunder which remains unpaid after the due date shall be subject to a late charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is lower, from the due date until such amount is paid. OutcomeCatalyst shall be relieved of its obligations under these Ts and Cs in the event of nonpayment of the Fees or expenses due and shall retain the rights in the Services for which the amount is outstanding.
7.3. Taxes. The fees listed in these Ts and Cs or the applicable SOW are exclusive of taxes. If OutcomeCatalyst is required to pay sales, use, property, value-added or other taxes based on the licenses or services granted in these Ts and Cs or on Client’s use of Products or services, and then such taxes shall be billed to and paid by Client.
8. Warranty Disclaimer. OTHER THAN THE EXPRESS WARRANTIES SET FORTH HEREIN, OutcomeCatalyst DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES RENDERED BY ITS ASSOCIATES, THE DELIVERABLES, OR THE RESULTS OBTAINED FROM THEIR WORK OR ANY DECISIONS MADE BY CUSTOMER IN RELIANCE ON THE SERVICES, DELIVERABLES, OR ANY OTHER WORK, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. OutcomeCatalyst HAS NO RESPONSIBILITY, OBLIGATION, OR LIABILITY WHATSOEVER FOR CLIENT’S OWN ENVIRONMENT, SECURITY OR DATA PRIVACY PRACTICES, FINANCIAL LOSS, MISSED TRADING OPPORTUNITIES, EXECUTION DELAYS, INCORRECT TRADE EXECUTIONS, OR ANY HARMS OR LOSSES OR DAMAGES CAUSED BY CLIENT OR BY A THIRD PARTY. THE CLIENT ACKNOWLEDGES THAT TRADING CARRIES INHERENY RISKS, AND OUTCOMECATALYST DOES NOT PROVIDE FINANCIAL OR INVESTMENT ADVICE.
THE CLIENT ACKNOWLEDGES THAT THE SOFTWARE INTERACTS WITH THIRD-PARTY SERVICES OR PRODUCTS (E.G., BROKERAGES, EXCHANGES, MARKET DATA PROVIDERS) AND THAT THESE SERVICES ARE BEYOND OUTCOMECATALYST’S CONTROL. OUTCOMECATALYST SHALL NOT BE HELD RESPONSIBLE FOR ANY FAILURES, INACCURACIES, DOWNTIME, OR UNEXPECTED BEHAVIOR CAUSED BY THIRD-PARTY SERVICES.
9. Indemnification.
9.1 Infringement. Subject to Client’s compliance with these Ts and Cs and payment in full, OutcomeCatalyst will defend and indemnify Client against a third-party claim that the Deliverables infringe a valid third-party copyright or patent in the United States as set forth in Section 10.4 below, provided that: (a) Client promptly notifies OutcomeCatalyst of the claim in writing; and (b) OutcomeCatalyst has sole control of the defense and all related settlement negotiations (subject to Client’s right to approve counsel chosen by OutcomeCatalyst to defend Client, which approval shall not be unreasonably withheld, conditioned, or delayed; and Client provides OutcomeCatalyst with the assistance, information and authority necessary to perform OutcomeCatalyst’s obligations under this Section.
9.2. Excluded Claims. OutcomeCatalyst shall have no liability for any claim of infringement caused by: (1) Client's misuse or modification of any deliverable item(s) resulting from OutcomeCatalyst’s performance of the services; (2) Client's failure to use corrections or enhancements made available by OutcomeCatalyst; (3) Client’s distribution, marketing or use of such deliverable item(s) for the benefit of third parties; or (4) information, direction, specification, or materials provided by Client or any third party.
9.3. Infringement by Client. Client shall indemnify and hold harmless OutcomeCatalyst and its personnel from and against any loss, damage, expense, or liabilities arising out of or relating to Client’s use of any third-party products or services (including hardware or software) in contravention of the applicable license or other restrictions governing such products or services.
9.4. Remedies. If any Deliverable resulting from OutcomeCatalyst’s performance of the services is held in a final judgment by a court of competent jurisdiction to constitute an infringement of a valid third-party right pursuant to this Section, OutcomeCatalyst shall at its expense and option either (a) procure the right for Client to continue using such item(s); (b) replace it with a non-infringing equivalent, modify it to make it non-infringing or (c) accept return of the deliverable item and refund to Client the fees paid for such deliverable item less a reasonable amount for Client's use of the deliverable item up to the time of return, provided Client notifies OutcomeCatalyst about the defect 15 days in advance. THIS SECTION STATES OutcomeCatalyst’s ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR INFRINGEMENT.
10. Limitation of Liability. IN NO EVENT, SHALL OutcomeCatalyst BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSS OF REVENUE OR BUSINESS PROFITS, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FORGOING, CLIENT AGREES THAT OutcomeCatalyst LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT PAID FOR SERVICES UNDER THE APPLICABLE SOW FOR PRECEDING SIX (6) MONTHS UNDER WHICH THE CLAIM ARISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
11. Confidentiality.
a. Confidential Information. Both parties acknowledge that certain confidential and proprietary information may be disclosed by one of them (hereinafter sometimes referred to as the “Owner”) to the other (hereinafter sometimes referred to as the “Recipient”) in the course of these Ts and Cs. "Confidential Information" is herein defined to mean and shall refer to any and all trade secrets, business secrets, know-how and other information not generally known to the public and any and all tangible embodiments thereof including, but not limited to, all financial information, drawings, computer software, designs, specifications, estimates, blueprints, plans, data, reports, processes, models, memoranda, notebooks, notes, sketches, artwork, mock-ups, letters, manuals, documents, leases, licenses, agreements, contracts, customer lists, employees, pricing policies, market analysis, market projections, expansion plans, sales methods, operations, technologies, organization, marketing, pricing, distribution, financing, and other business information, photographs, computer files, and copies of all or portions thereof which in any way are related to the business of Owner and/or its affiliated companies and subsidiaries, whether or not disclosed or designated as proprietary, confidential or otherwise.
b. Exceptions. The parties agree that information shall not be deemed to be Confidential Information, to the extent it is information:
i. Which Recipient can show by legally sufficient evidence was in its possession prior to disclosure by Owner and free from any obligation to keep such information confidential; or
ii. Which becomes, or already is, generally available to the public in tangible form other than by acts or omissions of Recipient; or
iii. Which is lawfully obtained from a third party who is legally in possession of such information, has a right to reveal the same to Recipient, and did not obtain such information directly or indirectly from Owner through any wrongful actions or with any restrictions on disclosure; or
iv. That is disclosed pursuant to any order or requirement of a court, administrative agency, or other governmental body (including, without limitation, the rules and regulations of the Securities Exchange Commission); provided, that the Recipient shall provide Owner prompt, written notice thereof to enable the Owner to seek, at its sole cost and expense, a protective order or otherwise to prevent such disclosure.
c. Obligations. Both Parties represent to the other that any Confidential Information of the other that it receives in connection with these Ts and Cs is the sole, exclusive and valuable property of the Owner and will be used solely in connection with these Ts and Cs (the “Permitted Use”). If either Party receive any Confidential Information in connection with these Ts and Cs, the Recipient will take all reasonable precautions to safeguard the Confidential Information and will hold such Confidential Information in strict confidence and will not reproduce such information without the Owner’s prior written consent and will not communicate such Confidential Information without the Owner’s prior written consent to any other person or entity during the term of these Ts and Cs and for a period of two (2) years following the termination of these Ts and Cs; provided that any of such Confidential Information may be disclosed to any of the employees, advisors, affiliates, subcontractors, agents and representatives in the course of business on need to know basis. In the event of the loss or disclosure of any Confidential Information, Recipient shall promptly notify Owner in writing and shall cooperate with Owner in attempting to recover such Confidential Information and prevent further disclosure. In the event that Recipient receives a subpoena or court order requiring disclosure of Confidential Information, Recipient shall promptly notify Owner in writing and cooperate with Owner’s efforts to quash, modify, or otherwise contest such subpoena or order.
d. Notwithstanding the disclosure of any Confidential Information by the Owner to the Recipient, the Owner shall retain title thereto and to all intellectual property and proprietary rights therein, and the Recipient shall have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. The Recipient shall not alter or obliterate any trademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Owner on any copy of the Confidential Information, and shall faithfully reproduce any such mark or notice on all copies of such Confidential Information
e. The Recipient shall promptly return all the Confidential Information or copies thereof which are in its possession to the Owner on demand or shall destroy the same in the manner so specified by the Owner.
12. Non-Solicitation: During the term of these Ts and Cs and for one (1) year thereafter, neither party will, directly or indirectly, recruit, cause to be recruited, solicit or induce any Associate of the other party involved in the provision or receipt of services hereunder to terminate his or her relationship with such other party or receive services from any such Associate other than through the other party. Neither party shall directly or indirectly recruit or receive services from a former Associate(s) of the other party without the prior written consent of the other party, where former Associate(s) shall mean a person who ceases to work for the other Party and a period less than one year has since elapsed.
13. GENERAL TERMS
a. Governing Law and Venue. These Ts and Cs, and all matters arising out of or relating to these Ts and Cs, shall be governed by the laws of the State of New York, excluding its conflicts laws. The parties agree to the exclusive venue and jurisdiction of the federal courts of the Southern District of New York and waive any objection based on the inconvenience of such forum.
b. Marketing.
OutcomeCatalyst may use Client's name and logo in marketing materials including OutcomeCatalyst website, presentations and proposals, subject to reasonable brand management by Client.
c. Miscellaneous. These Ts and Cs and the rights and obligations under it are not assignable by either party without the prior written approval of the other party except in the event of a merger, acquisition or other business combination resulting in a change in control. There are no third-party beneficiaries to these Ts and Cs. In the event any provision of these Ts and Cs is held to be invalid or unenforceable, the remaining provisions of these Ts and Cs shall remain in force. The waiver by either party of any default or breach of these Ts and Cs shall not constitute a waiver of any other or subsequent default or breach. No single or partial exercise of any right or remedy provided under these Ts and Cs or by law shall preclude or restrict the further exercise of that or any other right or remedy Except for actions for nonpayment or breach of OutcomeCatalyst’s proprietary rights, no action, regardless of form, arising under these Ts and Cs may be brought by either party more than one (1) year after the cause of action has accrued.
d. Force Majeure. Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its control, including, without limitation, acts of God or nature; labor disputes; pandemic or epidemic; sovereign acts of any federal, state or foreign governments; or shortage of materials provided such party promptly notifies the other.
e. Relationship between the Parties. OutcomeCatalyst is an independent contractor. Nothing in these Ts and Cs shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
f. Entire Agreement; Construction. These Ts and Cs and the applicable SOW constitute the complete agreement between the parties and supersedes all prior agreements and representations, written or oral, concerning the subject matter of these Ts and Cs. It is expressly agreed that the terms of these Ts and Cs and any OutcomeCatalyst Statement of Work shall supersede the terms in any Client purchase order or other ordering document, which shall be of no force or effect unless signed by both parties.