Terms & Conditions

Last Revised: February 23, 2015

 

Outside Intelligence Inc. welcomes visitors to the OutsideIQ websites located at www.outsideiq.com andwww.ddiq.com (collectively known as the “Website”). OutsideIQ Inc. is referred to as (“OutsideIQ”, “we”, “us”, “our”).

Except where otherwise indicated, “you” and “your” means the respective OutsideIQ client of record (a “Client”), whether an individual, legal entity or other Person, and every Person who uses the Services through the Client’s account with OutsideIQ, and any visitor to the Website who is not then a Client or Authorized Personnel of a Client.

Please read the following Website terms of use (“Terms of Use”) before using the Website. Unless we otherwise agree in writing, by accessing and using the Website, you agree to be bound by all the Terms of Use set forth herein. If you do not agree with these Terms of Use, your sole recourse is to leave the Website immediately. A copy of these Terms of Use may be downloaded, saved and printed for your reference.

If you are using our Website and/or our service under an access grant made by us to a Client that references these Terms of Use (a “Master Agreement”), your use is deemed to also be a use by that Client, both you and that Client are responsible for your compliance with these Terms of Use, and your continued use of the Website will also be subject to the terms of that Master Agreement.

Capitalized words and phrases used herein have the meanings defined in these Terms of Use.

 

1. OWNERSHIP

The Website is owned and operated by OutsideIQ. Any and all content, data, graphics, photographs, images, audio, video, software, systems, processes, trademarks, service marks, trade names and other information including, without limitation, the “look and feel” of the Website (collectively, the “Content”) contained in this Website are proprietary to OutsideIQ, its affiliates and/or third-party licensors. The Content is protected by Canadian, United States and international copyright and trademark laws. The word “OutsideIQ”, the “OutsideIQ” logo, and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of OutsideIQ. You shall not use any tradename, trademark, or brand name of OutsideIQ in metatags, keywords and/or hidden text. We reserve all rights. You do not acquire ownership rights to any Content. We may revoke your access to the Website, or any part thereof, including the blocking of your IP Address, at any time without prior notice.

 

2. SOURCE MATERIAL AND LINKING

It is our goal to provide increased value to you, our visitors and customers. Reports generated in response to your search requests (“Reports”) are sourced from blogs, reviews, news, legal filings, and relevant information from a variety of other sources owned and operated by third parties (“Source Content”) and therefore not affiliated with us. Links to other sites on the Internet are also owned and operated by third parties. Please understand that Source Content and linked websites are independent from OutsideIQ and that OutsideIQ has no control over Source Content or the content of linked websites. Consequently, OutsideIQ cannot be held liable and makes no warranty or representation whatsoever as to the accuracy, timeliness and/or completeness of the information contained in Source Content or on such linked websites. In the event that you access certain content with additional terms (such as premium content with restrictions on resale or redistribution), we will notify you through the Website and as a condition of use, you agree to abide by such additional terms.

OutsideIQ may provide, according to the Specifications, Reports that can be printed, stored or shared with other entities, only as explicitly permitted in the terms of use accompanying the Report.

It is especially important when you are making a decision about a Person that you search through OutsideIQ that you satisfy yourself that the information in the Report (a) relates to the correct Person and (b) is accurate.

The links that we might place on our Website do not imply that we sponsor, endorse or are affiliated or associated with, or have been legally authorized to use any trade-mark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such sites.

 

3. SEARCH REQUESTS ON INDIVIDUALS

IF YOU EXECUTE A SEARCH ON AN INDIVIDUAL, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE NECESSARY CONSENT TO PERFORM THE BACKGROUND SEARCH ON SUCH INDIVIDUAL. OUTSIDEIQ IS NOT A CONSUMER REPORTING AGENCY AS DEFINED IN THE FAIR CREDIT REPORTING ACT, AND YOU AGREE THAT YOU WILL NOT USE THE WEBSITE TO PERFORM ANY CONSUMER BACKGROUND CHECK OR USE THE WEBSITE AS A FACTOR IN (A) ESTABLISHING AN INDIVIDUAL’S ELIGIBILITY FOR PERSONAL CREDIT OR INSURANCE OR ASSESSING RISKS ASSOCIATED WITH EXISTING CONSUMER CREDIT OBLIGATIONS, (B) EVALUATING AN INDIVIDUAL FOR EMPLOYMENT, PROMOTION, REASSIGNMENT OR RETENTION (INCLUDING BUT NOT LIMITED TO EMPLOYMENT OF HOUSEHOLD WORKERS SUCH AS BABYSITTERS, CLEANING PERSONNEL, NANNIES, CONTRACTORS, AND OTHER INDIVIDUALS), OR (C) ANY OTHER PERSONAL BUSINESS TRANSACTION WITH ANOTHER INDIVIDUAL.

 

4. RESTRICTIONS ON USE

Except as set forth herein, you may not modify, copy, reproduce, publish, post, transmit, distribute, display, perform, create derivative works from, transfer or sell any Content, Source Content, or Report, without the express prior written consent of OutsideIQ. You may download, print and reproduce the Content and/or Reports for your own non-commercial, informational purposes provided you agree to maintain any and all copyright or other proprietary notices contained in such Content and/or Report, and to cite the URL Source of such Content and/or Report. Reproduction of multiple copies of the Content and/or Report, in whole or in part, for resale or distribution is strictly prohibited except with the prior written permission of OutsideIQ. To obtain written consent for such reproduction, please contact us at info@outsideiq.com.

You agree to use our Services, the Website, its Content, and any Source Content and/or Reports only for legal, internal-use purposes, and in compliance with all applicable Laws, including the Fair Credit Reporting Act. You agree that no data is shared, transferred or communicated with OutsideIQ, either directly or indirectly, in violation of the Laws applicable thereto.

You shall not disseminate, distribute, adapt, translate, change, customize, enhance, augment, partially delete or alter, otherwise manipulate or modify, download, store, reproduce or retransmit the Services, the Source Content, or any part thereof, in any manner or to any extent whatsoever, whether in whole or in part.

You shall not provide, disclose, sublicense or otherwise permit any other Person to access the Services or to use, read, compile, decompile, disseminate, distribute, transmit, download, store or reproduce the Services, the Third Party Data or any part thereof.

You shall not use the Services or any Source Content (including Third Party Data) obtained via the Services as a factor in (i) establishing an individual’s eligibility for personal credit or insurance or assessing risks associated with existing consumer credit obligations, (ii) evaluating an individual for employment, promotion, reassignment, or retention, or (iii) any other personal business transaction with another individual (collectively “FCRA Uses”).

 

Acceptable Use Policy

  • You, acknowledge that the provision of access to the Services is subject to these Terms of Use including our Acceptable Usage Policy (“AUP”) as described below and any Master Agreement and any Service Level Agreement (SLA) applicable to the Services as made available to you via the Services or on the Website and as amended by OutsideIQ from time to time. Any such amendment to these Terms or Use or Service Level Agreement shall become effective as of the date such amendment has been has been made available to you via the Services or the Website.
  • Important Note: OutsideIQ may revise this AUP, its Terms of Use and Service Level Agreement, from time to time without notice, as required by applicable Laws. Accordingly, you should consult this document regularly to ensure that their activities conform to the most recent version. Please direct any questions or comments regarding this AUP and complaints of violations of this AUP by clients to support@outsideiq.com.
  • AUP – Code of Conduct: Without limiting the foregoing and in connection with your use of the Website, you agree not to:
    1. use or permit the use of Source Content or Content accessed via the Website to prepare a database or a comparison to other databases that are sold, rented, published, or furnished in any manner to a third party;
    2. use the Services or any part thereof to act as a “service bureau” or in a time-sharing, application service provider or other similar model to provide the benefit of the use of the Services to any other Person;
    3. harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users;
    4. use or permit the use of the Website or Source Content or Content accessed via the Website for the purpose of compiling, enhancing, verifying, supplementing, adding to, deleting from or operating any telemarketing list, direct mail service, mailing list, business directory, or other compilation of information that is sold, rented, published, or furnished in any manner to a third party;
    5. use Reports, Source Content or Content accessed via the Website in legal proceedings other than publicly available Source Content that is independently available;
    6. use the Website or Source Content or Content accessed via the Website to bother, stalk, harass, threaten or embarrass any individual;
    7. copy, retransmit, modify, disseminate, sell, exploit, display, perform, reuse, re-post, broadcast, circulate, or otherwise distribute any part of the Website or Source Content or Content accessed via the Website for any purpose other than for which the Website is provided to you;
    8. use the Website, the Source Content, and/or the Content to conduct or promote any illegal activities, including identity theft or pretexting;
    9. attempt to reverse engineer or jeopardize the correct functioning of the Website, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Website or any of the services delivered on the Website;
    10. attempt to gain access to secured portions of the Website to which you do not possess access rights or to attempt to gain unauthorized access to the Services, other computer systems or networks connected to the Services, through password mining or any other means;
    11. upload, post, submit, email, or otherwise transmit any material that contains any form of destructive software such as a virus, worm, Trojan horse, time bomb, cancelbot, or any other harmful components or any other computer file, program or code, designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;
    12. use the Website, the Source Content, and/or the Content to upload, post, submit, e-mail or otherwise transmit any material that:
      1. constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
      2. infringes any patent, trade-mark, trade secret, copyright or other proprietary or privacy rights of any party;
      3. is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable; or
    13. interfere in any way with the proper functioning of the Website, or interfere with or disrupt any servers or networks connected to the Website or our Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or our Services;
    14. otherwise damage, disable, overburden, impair or otherwise interfere with OutsideIQ’s provision of the Services;
    15. disclose the results of any software benchmark, maintenance or other test without OutsideIQ’s express prior written consent;
    16. use, download or otherwise copy, or provide to any person or entity any user or usage information;
    17. use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Website, Source Content, or the Content contained on any such web page for commercial use without our prior express written permission;
    18. impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
    19. for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services; or
    20. mirror or frame the Website, the Source Content, and/or the Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
    21. use any trade name, trademark, or brand name of ours in metatags, keywords and/or hidden text;
    22. create derivative works from the Content or commercially exploit any part of the Content in any way;
    23. use any portion of the Website, Source Content, or the Content in any manner that may give a false or misleading impression, attribution or statement as to us, the Owner or any other third party; or
    24. alter, remove or obscure any copyright or other proprietary notice, digital watermarks, proprietary legends or any other notice included in the Content or any Source Content.
  • AUP – Use of Services:
    • OutsideIQ subscription pricing models are based on each User using a reasonable volume of Services as a tool to facilitate that User’s performance of individual risk assessments. Subscription Users may not use the Services for the purpose of mass data researching. Subscription Users may not act as a service bureau; that is, subscription Users may not use the Services to fulfil the research and risk assessment requests of other Persons.
    • Unreasonably high volumes of use by any User, as determined by OutsideIQ in its discretion, may result at OutsideIQ’s election, in service suspension, contract termination or an increase in the User’s subscription price.

 

5. USER ACCOUNTS

To access certain portions of the Website and our Services, you will be asked to register with the Website as a Client or as a User registered as Authorized Personnel of an existing Client.

In consideration for your use of this Website and the services provided on it, you agree to provide true, current, complete and accurate information as requested on any registration form to which this Website may direct you, and to update that registration information as soon as possible after any information on such registration form changes.

Upon registration, you will choose a username and password. You alone are responsible for keeping that password and username confidential, and for any and all activity that occurs on this Website under such password or username. You agree to immediately notify OutsideIQ of any unauthorized use of your password or username or any other breach of security. You agree not to allow any third party to use your username or password. You acknowledge and agree that you will be fully responsible for all liabilities incurred through use (whether lawful or unlawful) of your username and/or password, including any use of Source Content for purposes prohibited by the Fair Credit Reporting Act.

If your use of any part of this Website and/or the services provided on it was obtained pursuant to a written agreement between OutsideIQ and you, your employer, your principal, or your agent, these Terms of Use are incorporated by reference therein, and that agreement will contain additional terms and conditions applicable to your continued use of our Website and/or our services.

Each Client is responsible for:

  1. Ensuring only its Authorized Personnel may access the Services under the access grant by OutsideIQ to such Client, removing access under such access grant if a Person ceases to be Authorized Personnel.
  2. Assigning a unique username and password to each of its Authorized Personnel, each of whom shall be a unique User;
  3. Requiring that Client and all Authorized Personnel comply with these Terms of Use; and
  4. Assuming all liability resulting from any noncompliance with these Terms of Use by Client or its Authorized Personnel, or any other Person using the Services through access rights granted to Client or its Authorized Personnel.

 

6. CONFIDENTIALITY AND PROPRIETARY RIGHTS

Use of Confidential Information. Each Party shall hold in confidence and shall protect the Confidential Information of the other Party from harm, loss, theft, reproduction and unauthorized access while in its possession or control and shall ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any Person except as provided in (collectively, the “Agreement”), without such other Party’s prior written approval. Each Party acknowledges and agrees that, as between the Parties, the Confidential Information it may receive from the other Party is the sole and exclusive property of the other Party.

Access to Client Data. Only to the extent reasonably necessary in connection with the performance of the Agreement, Client hereby grants to OutsideIQ a non-exclusive, non-transferable and fully paid-up license to access, use and reproduce (where applicable) the Client Data for the purpose of and to the extent required in order to perform the Services and/or to provide Client any requested assistance in connection with the Agreement. In such circumstances OutsideIQ agrees that such Client Data is Confidential Information of Client.

Data Provided by OutsideIQ. OutsideIQ will be allowed to use data it provides in conjunction with the Services, including Source Content and applicable Third Party Databases where such use is allowed by applicable Privacy Laws and/or the Third Party Source, as well as feedback from the Client in use of the Services, to improve its Services offerings.

Exceptions and Permitted Disclosure. A Party shall be permitted to disclose relevant aspects of the other Party’s Confidential Information to its officers, directors, employees, agents and professional advisors to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations or the exercise of any rights or privileges granted under this Agreement; provided, however, that: (a) prior to such disclosure such disclosing Party shall inform such Persons and Parties of the confidential nature of the Confidential Information; and (b) such disclosing Party shall be fully responsible for ensuring that any such Persons to whom it discloses the other Party’s Confidential Information comply with the confidentiality obligations contained in this Agreement and; (c) such disclosing Party shall be liable for any breach of this Agreement by such Persons. A Party may disclose the Confidential Information of the other Party that: (a) prior to furnishing or thereafter becomes known to the public without fault or breach of such party; (b) it obtains from a third party without restriction on disclosure and without breach by such third party of a non-disclosure obligation; or (c) is independently developed by the receiving Party without access to the confidential or proprietary information received from the other Party. The obligations of confidentiality contained in this Agreement shall not restrict any disclosure by either Party to the extent that such Party is required to disclose information by applicable Law or a court of competent jurisdiction; provided, however, that it shall not make any such disclosure without first notifying the other Party and allowing the other Party a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure. In addition, it shall take reasonable steps, to the extent permitted by law, to remove from the Confidential Information that is required to be disclosed, any information that a reasonable person would conclude is commercially sensitive to the other Party.

Unauthorized Disclosure. A Party shall notify the other Party promptly following discovery of any unauthorized use or disclosure of the other Party’s Confidential Information, and will cooperate with the other Party in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure.

Survival and Return of Information. Notwithstanding anything in this agreement to the contrary, the obligations of confidentiality in this Agreement shall be effective throughout the term of this Agreement and, notwithstanding the return of any Confidential Information or any other event, shall continue in full force and effect following its termination. Without prejudice to any other rights provided herein, upon termination or expiration of this Agreement and request of the other Party, each Party destroy all Confidential Information of such other party in its possession or control, including any copies or reproductions thereof.

Acknowledgement Concerning Use. Notwithstanding anything to the contrary herein, Client acknowledges, confirms and agrees that the Services may be configured to use Confidential Information (including personal information) to conduct searches against databases external to Client’s and OutsideIQ’s environments.

Restrictions on Client Data. Client represents and warrants that Client Data does not and will not include credit card data, including, without limitation, primary account numbers, expiration dates, service codes, full track data, verification codes (such as CAV2, CVC2, CVV2, CID, etc.), personal identification numbers (PINs) or PIN blocks (collectively, “Credit Card Data”).

PCI DSS and SSAE16 Compliance. OutsideIQ shall use commercially reasonable efforts to secure its systems including compliance with respect to PCI DSS and SSAE16 SOC 2. OutsideIQ shall promptly notify Client if its applicable system security does not meet or exceed PCI DSS or SSAE16 SOC 2 at any time during the term. Following receipt of such notice, Client shall thereafter be entitled to a one-time election to: (i) continue to access and use the Services notwithstanding such failure to meet or exceed PCI DSS or SSAE16 SOC 2, as the case may be; or (ii) suspend its use of the Services until such time as OutsideIQ notifies Client that its applicable system security meets or exceeds PCI DSS or SSAE16 SOC 2, as the case may be. Any such suspension shall suspend the expiration of the Term for an equal period.

Data Retention. Subject to the remaining terms of this Agreement and applicable Laws, Client agrees and acknowledges that OutsideIQ may retain any Client Data or Personal Information for a period of seven (7) years following the collection of such data or information, or the maximum amount allowed by applicable Privacy Laws (whichever is shorter) (the “Retention Period”). During the Retention Period, OutsideIQ shall provide such data or information to Client upon request in accordance with the Fees. Notwithstanding the foregoing, OutsideIQ shall securely delete all Client Data: (i) within thirty (30) days of receiving notice by the Client; or (ii) at the end of the Retention Period.

 

7. EQUITABLE RELIEF

You acknowledge that damages may not be an adequate remedy for a breach of any of your obligations in these Terms of Use and that you shall not interfere with, delay, obstruct, or prevent OutsideIQ from taking, or require it to take, any steps prior to taking action to seek an interim and interlocutory equitable remedy on notice or ex parte to enforce any provision herein to protect its rights pursuant to these Terms of Use. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. You agree that the provisions of Sections 4 and 6 of these Terms of Use are fair and reasonable in the commercial circumstances of these Terms of Use.

 

8. THIRD PARTY DATA

Third Party Databases. The Service provides access to Third Party Data obtained from Third Party Sources. OutsideIQ shall provide a listing of available Third Party Sources, which OutsideIQ may amend from time to time, accessible to Client via the Services or the Website. Client acknowledges that a Third Party Source may have the right to terminate or cease to provide, at any time with or without notice in accordance with the terms and conditions of the applicable agreement, any Third Party Databases and Client access to the Third Party Data provided by such Third Party Source without any direct or indirect liability by or on behalf of such Third Party Source or OutsideIQ with respect to such termination. Client acknowledges and agrees that each Third Party Source (and not OutsideIQ) is solely responsible and liable for the accuracy or current state of content of any Third Party Data it provides.

Use of Third Party Database. Prior to receiving access to the Third Party Databases, Client must execute and deliver an agreement, if applicable, with each Third Party Source and/or expressly agree to any terms and conditions with each Third Party Source that OutsideIQ provides notice of hereunder. Client shall comply with any conditions, restrictions or limitations imposed by each applicable Third Party Source set forth in the applicable agreement and/or applicable terms and conditions for which notice has been provided hereunder. Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to or vest in Client any title, rights or interest in or to any intellectual property, including in or to any Third Party Data. Client represents and warrants that it shall not use any Third Party Database for any FCRA purposes not enter into any agreement with a Third Party Source in connection with the Services that authorizes the use of such Third Party Data for an FCRA use.

No Warranties / Limitations on Data. ANY DATABASES (AND DATA THEREIN – INCLUDING CONTENT, SOURCE CONTENT, THIRD PARTY DATA, AND REPORTS) SUPPLIED OR MADE AVAILABLE BY OUTSIDEIQ AND/OR USED BY CLIENT OR ANY OTHER PERSON IS PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE. OUTSIDEIQ EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, THE WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, OUTSIDEIQ MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY OR COMPLETENESS OF ANY DATA OR THAT ANY DATA IS ERROR FREE OR THAT ANY DATA WILL MEET CLIENT’S REQUIREMENTS. CLIENT ACCEPTS FULL RESPONSIBILITY AND RISK FOR ANY USE OF ANY SUPPLIED DATA AND ANY DECISIONS MADE BY CLIENT OR ANY OTHER PERSON IN RELIANCE THEREON.

The DATABASES (AND DATA THEREIN) have not been collected in whole or in part for the purpose of furnishing consumer reports, as defined in the FCRA.

THIS SECTION SHALL SURVIVE ANY TERMINATION OR EXPIRATION AND NON-RENEWAL OF THIS AGREEMENT.

Client acknowledges and agrees that each Third Party Source (and not OUTSIDEIQ) is solely responsible and liable for the accuracy or current state of content of any Third Party Data it provides.

 

9. LIMITED WARRANTY

OutsideIQ represents and warrants to its Client and only to its Client, that: (a) the Services shall, during the term of OutsideIQ’s Access Grant to Client in respect of such Services, conform to and operate in all material respects in accordance with the Specifications, except to the extent such Specifications are amended to reflect a change in Third Party Sources, provided however that in the event of a breach of the foregoing warranty, Client’s sole and exclusive remedy shall be to request OutsideIQ remedy such breach; (b) OutsideIQ shall utilize current industry-standard Virus detection software in an effort to identify and remove any known Viruses from the Services; (c) OutsideIQ has the necessary right, title and interest in and to the Services to grant the Access Grant herein; and (d) as of the Effective Date, to the knowledge of OutsideIQ, provision of the Services does not infringe any third party intellectual property right.

CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY CONTAINED IN THESE TERMS OF USE OR IN ANY APPLICABLE MASTER AGREEMENT ARE THE ONLY REPRESENTATIONS, WARRANTIES, AND COVENANTS PROVIDED BY OUTSIDEIQ CONCERNING THE SERVICES (INCLUDING ITS FUNCTIONALITY, PERFORMANCE, RELIABILITY, ACCURACY, OPERATION OR USE BY CLIENT) AND THE SERVICES AND THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (OR THAT ALL ERRORS CAN OR WILL BE CORRECTED) OR WILL MEET CLIENT’S REQUIREMENTS OR THOSE CONCERNING THE RESULTS OF THE USE OF THE SERVICES BY CLIENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

CLIENT CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY OUTSIDEIQ WHICH HAS NOT BEEN EXPRESSLY STATED IN THESE TERMS OF USE OR IN AN APPLICABLE MASTER AGREEMENT BETWEEN THE CLIENT AND OUTSIDE IQ.

CLIENT ACKNOWLEDGES AND AGREES THAT THE FOREGOING WARRANTY ONLY APPLIES TO THE SERVICES AND DOES NOT EXTENT TO ANY THIRD PARTY DATA AVAILABLE THROUGH THE SERVICES.

IF YOU ARE NOT THE CLIENT OF OUTSIDEIQ, THEN, THE WEBSITE, CONTENT, SOURCE CONTENT, REPORTS, AND ALL SERVICES PROVIDED, ARE BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

10. LIMITED INDEMNITY BY OUTSIDE IQ

OutsideIQ Indemnity. Subject to the provision below on the Right to Procure or Substitute, OutsideIQ will defend Client from any third party claim that Client’s access to and use of the Services (excluding any Third Party Data offered via the Services) furnished by OutsideIQ when used in accordance with a valid and subsisting Access Grant, infringes or misappropriates a copyright, patent or trade secret owned by the third party (each a “Claim”). OutsideIQ will pay: (i) counsel hired by OutsideIQ to defend the Claim; (ii) the reasonable and verifiable out-of-pocket costs incurred directly by Client in connection with assisting OutsideIQ in the defense thereof; and (iii) subject to the section below regarding Limitation of Liability, any damages finally awarded to such third party by a court of competent jurisdiction (after any appeals) or any settlements of the Claim to which OutsideIQ consents. The foregoing obligations shall be subject to Client notifying OutsideIQ promptly in writing of any Claim, giving OutsideIQ, or its insurers and agents, the exclusive control of the defence and settlement of the Claim, and providing all reasonable assistance in connection with the Claim; provided, however, that delay in giving such notice or the failure to provide such assistance shall not relieve OutsideIQ of its obligations pursuant to this Section except to the extent that OutsideIQ was actually prejudiced by such delay or failure. Subject to the foregoing conditions, nothing in this Agreement shall prohibit Client from hiring separate counsel, at its own expense, to participate in the defence of such Claim. OutsideIQ shall have no liability or indemnification obligations for any Claim arising out of or relating to: (a) Client’s use of the Services after OutsideIQ notifies Client to discontinue use due to such a Claim; (b) the combination of the Services with a non-OutsideIQ application, technology, product, service, database or business process if and to the extent such combination or use caused or is a basis of the Claim; (c) modifications to the Services other than modifications made by OutsideIQ if such modifications caused or are a basis of the Claim; (d) changes made by OutsideIQ to the Services in accordance with any designs, specifications, requirements or instructions provided to OutsideIQ by or on behalf of Client if such modifications caused or are a basis of the Claim; (e) continued use of the Services for which OutsideIQ has provided Client with modifications or substitute Services if use of such modifications or substitute Services would have prevented the Claim; or (f) use of the Services in a manner prohibited under the Agreement or contrary to the modes of operation set out by documentation provided via the Service if such use caused or is a basis of the Claim. The foregoing states OutsideIQ’s entire obligation and liability with respect to the infringement or violation of any third-party property right, and shall be subject to the limitations in the sections regarding the Right to Procure and Substitute and the Limitation of Liability of this Agreement.

Right to Procure or Substitute. Should the Services become the subject of a Claim (including if a court of competent jurisdiction issues an injunction against OutsideIQ’s or Client’s use of any part of the Services) or in OutsideIQ’s sole opinion is likely to become the subject of a Claim, OutsideIQ may, at its expense and option (and without limiting its indemnification obligations in (a) above): (i) procure for Client the right to continue to access and use the Services; (ii) replace or modify the Services so that it becomes non-infringing (while substantially preserving its utility, capabilities and functionality), or (iii) terminate this Agreement. If OutsideIQ selects option (ii) or (iii), Client shall immediately upon receipt of notice to do so from OutsideIQ refrain from the further use of the allegedly infringing Services (or part thereof).

 

11. DISCLAIMER / LIMITATION OF LIABILITY

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC AND CERTAIN STATES IN THE UNITED STATES OF AMERICA, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

THE WEBSITE, INCLUDING THE CONTENT, REPORTS, SOURCE CONTENT, AND ALL SERVICES PROVIDED HEREIN, IS BEING PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. OUTSIDEIQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OUTSIDEIQ DOES NOT WARRANT THAT THE FUNCTIONS ON THE WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE ARE NOT A CONSUMER REPORTING AGENCY AS DEFINED IN THE FAIR CREDIT REPORTING ACT (“FCRA”), AND THE INFORMATION PROVIDED IN ANY REPORT HAS NOT BEEN COLLECTED IN WHOLE OR IN PART FOR THE PURPOSE OF FURNISHING CONSUMER REPORTS, AS DEFINED IN THE FCRA.

Non-Clients: IN NO EVENT SHALL OUTSIDEIQ BE LIABLE TO A NON-CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE WEBSITE OR ANY CONTENT, SERVICES OBTAINED THROUGH THE WEBSITE, EVEN IF OUTSIDEIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

No Indirect Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO LOSS OF OR DAMAGE TO DATA, LOST REVENUE, LOST PROFITS OR SAVINGS OR BUSINESS INTERRUPTION) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, OR ANY OTHER CAUSE) AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT APPLY TO ANY DAMAGES ARISING OUT OF ANY USE BY CLIENT OF THE SERVICES OR ANY THIRD PARTY DATA FOR ANY OF THE PURPOSES PROHIBITED BY THE FCRA, IN WHICH CASE, CLIENT AGREES THAT IT SHALL BE SOLELY LIABLE FOR ALL RESULTING COSTS AND DAMAGES, INCLUDING GOVERNMENTAL FINES.

UNDER NO CIRCUMSTANCE SHALL OUTSIDEIQ BE LIABLE FOR MORE THAN THE AGGREGATE AMOUNT PAID BY CLIENT TO OUTSIDEIQ WITHIN THE 12 MONTHS PRECEDING ANY CLAIM.THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE WEBSITE AND THE SERVICES THEREON WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.

You hereby release us, our officers, employees, agents and successors from any and all claims, demands, and losses, damages, rights, claims, and actions of any kind that are either directly or indirectly related to or arises from: (1) any interactions with the INDIVIDUALS who are the subject of a Report requested by you, or (2) your use and receipt of any Report. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

Exceptions. The limitations and exclusions in the section above on Limitation of Liability will not apply to: (a) any violation of a Privacy Law by Client (b) Client’s (or any Person for whom it is responsible hereunder) breach of the Access Grant or other misappropriation or violation of OutsideIQ’s intellectual property rights; and (c) Client’s obligations to pay any amounts due under the Agreement.

Time Limitation. In no event shall any claim, action or proceeding against OutsideIQ related in any way to the Website or our Services (including your visit to or use of the Website or any of our Services, any Content, Source Content, or Reports) be instituted more than one (1) year after the cause of action arose.

 

12. INDEMNITY TO OUTSIDEIQ.

You agree to indemnify and hold harmless OutsideIQ, its affiliates, members, their respective Representatives, sponsors and licensors (the “Indemnified Parties”), and upon OutsideIQ’s request, defend the Indemnified Parties, from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including reasonable legal and accounting fees)imposed on or incurred by any of the Indemnified Parties, resulting from your (or anyone acting under your password or username) use of this Website, its Content, any Source Content or Report, or any alleged or actual violation by you of these Terms of Use, including (a) any claims by any Government Authority or other Person that relate to an alleged violation of any Privacy Laws, including any use by Client of the Services or any Third Party Data provided via the Services in violation of the FCRA; (b) any third party claim in respect of access by OutsideIQ to the use of Client Data in accordance with and in the performance of this Agreement; (c) any third party claim in respect of Client or its Representative’s use of Third Party Data(d) any third party claim in respect of Client or its Representative’s breach of the Acceptable Use Policy; (e) any injury, including but not limited to bodily harm or death, to you or any third party that may result from your use of or reliance on any Content, Source Content, or Report, provided by OutsideIQ or obtained on or through the use of the Website (each a “Client Claim”).

OutsideIQ recommends that users exercise their own skill and care with respect to the use of any Content, Source Content, or Report, and should obtain any expert advice they consider necessary.

Without limiting the generality of the foregoing, Client will pay: (i) counsel hired by Client to defend the Client Claim; (ii) the reasonable and verifiable out-of-pocket costs incurred by OutsideIQ in connection with assisting Client in the defense thereof; and (iii) any damages finally awarded to any third party by a court of competent jurisdiction (after any appeals) or any settlements of the Client Claim to which Client consents. Subject to the foregoing conditions, nothing in this Agreement shall prohibit OutsideIQ from hiring separate counsel, at its own expense, to participate in the defence of such Client Claim. Client agrees that OutsideIQ shall have no responsibility, obligation or liability to Client, or to any third party (including any Third Party Source), and shall save, indemnify and hold OutsideIQ harmless or any and all liability, in connection with any Third Party Databases procured directly by Client and used in accordance with the Access Grant.

 

13. PRIVACY

Please review our Privacy Policy for details on the manner in which we collect, use, disclose and otherwise manage your personal information when visiting our Website.

 

14. FEES

In consideration for your use of the Website, you agree to pay us the applicable fees as set out on the Website, or in a schedule to your applicable Master Agreement, if any. From time to time, we may prepare and send to you, at the then-current contact information on file, invoices for any fees and other amounts that have become due and payable hereunder. Unless otherwise expressly stipulated in an invoice, you agree to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

You will not withhold or “set-off” any amounts due under this agreement. We reserve the right to suspend your access to the Website until all due amounts are paid in full. Any late payment will be increased by the costs of collection (including reasonable legal fees), and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid.

All fees and charges included under this agreement do not include, and you will pay, indemnify and hold us harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this agreement, other than taxes based on the net income or profits of OutsideIQ.

 

15.  DIGITAL MILLENNIUM COPYRIGHT ACT

OutsideIQ is committed to respecting and protecting the legal rights of copyright owners and adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.).

If you believe any of the Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to OutsideIQ’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
  3. Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
  4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

OutsideIQ’s Copyright Agent to receive DMCA Takedown Notices is: email: copyright-agent@outsideiq.com. For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Website. You acknowledge that for OutsideIQ to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.

 

16.  CHANGES AND TERMINATION

OutsideIQ reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part thereof) with or without notice. Further, OutsideIQ reserves the right to change these Terms of Use at any time and to notify you by posting an updated version of the Terms of Use on this Website. You are responsible for regularly reviewing the Terms of Use, including, without limitation, by checking the date of “Last Update” at the top of this document. Continued use of the Website after any such changes shall constitute your consent to be bound by such changes, with continued provision of the use of the Website constituting consideration from OutsideIQ to you for so being bound. Your only right with respect to any dissatisfaction with (a) these Terms of Use (b) any policy or practice of ours in operating the Website or (c) any Content available through the Website, is to stop visiting and using the Website.

 

17.  APPLICABLE LAWS

Unless the applicable laws of your jurisdiction, such as Quebec, require that the laws of your jurisdiction govern, these Terms of Use shall be governed by and construed in accordance with the laws of the Province of Ontario and of the laws of Canada applicable therein, and any dispute is to be submitted to a court of competent jurisdiction in the judicial district of Toronto, Province of Ontario. If any provision of the present Terms of Use shall be unlawful, void, or for any reason unenforceable, then such provision shall be severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. These Terms of Use shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, which is expressly excluded and you also expressly agree to exclude the applicability of the Uniform Computer Information Transactions Act. A printed copy of these Terms of Use and of any notice in electronic form shall be admissible in any judicial or administrative proceedings to the same extent and under the same conditions as other business documents and records originally generated and maintained in printed form. You agree that you will only sue us as an individual. These Terms of Use and any and all other legal notices or statements posted on the Website, and any applicable Master Agreement between us, constitute the entire agreement between you and OutsideIQ with respect to the use of the Website, including the Content.

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU ARE WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION AND YOU AGREE THAT YOU SHALL ONLY BRING A CLAIM AGAINST OUTSIDEIQ, ITS PARENTS, AFFILIATES, OR RELATED COMPANIES IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY CLAIM OR ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL’S BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

 

18. DISCLOSURES, NOTICES, AND ELECTRONIC COMMUNICATION CONSENT

Under California Civil Code Section 1789.3, Customers who are residents of California are entitled to the following specific consumer rights information: the Complaint Assistance Unit of the division of Consumer Service of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA, 95814, or by telephone at 916.445.1254.

Notices to you may be made via e-mail or regular mail, or in cases of changes to these Terms of Use or to the services offered by the Website, by posting notices or links to such notices on the Website itself. The communications between you and us use electronic means, whether you visit the Website or send us e-mails, or whether we post notices on the Website or communicate with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your statutory rights.

 

19. DEFINED TERMS

In these Terms of Use:

  1. “Access Grant” means the right and license granted by OutsideIQ to permit Client, and Client’s Authorized Personnel, to access the Services solely in compliance with all Laws for Client’s internal business use and operations;
  2. “Agreement” means these Terms of Use and any applicable Master Agreement;
  3. “Authorized Personnel” means those employees of Client and other individuals acting in an employment role on behalf of Client that Client has authorized to access the Services;
  4. “Client Data” means data and information owned or compiled by Client and used by Client in connection with its use of the Services;
  5. “Confidential Information” means all documents, information, technology and data disclosed or furnished in any connection with this Agreement by one party to the other party prior to or after the date of this Agreement, directly or indirectly, whether in oral, written, graphic, video, machine-readable or other form that is either marked or identified (in writing or orally) as being confidential or proprietary or that the receiving party can reasonably conclude or ought to know is confidential or proprietary to the other party. For certainty, OutsideIQ’s Confidential Information shall be deemed to include, the terms and conditions of this Agreement (including pricing), the Services and any part thereof, and all other technical and product information and documentation, trade secrets, and the whole of the ideas, concepts, processes, procedures, and know-how contained therein. Client’s Confidential information includes Client Data;
  6. “Governmental Authority” means any national, state, county, or municipal agency, including the FTC;
  7. “Laws” means any and all federal, state and local: (i) laws, constitutions, treaties, statutes, codes, ordinances, orders, decrees, rules, regulations and by-laws; (ii) judgments, orders, writs, injunctions, decisions, awards and directives of any Governmental Authority; and (iii) to the extent that they have the force of law, policies, guidelines, notices and protocols of any Governmental Authority;
  8. “Parties” means OutsideIQ and Client and “Party” means either one of them;
  9. “PCI DSS” means the current version of the Payment Card Industry Data Security Standards;
  10. “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative;
  11. “Privacy Laws” means all federal, provincial, state, municipal or other applicable statutes, laws or regulations of any Governmental Authority in any jurisdiction governing the handling of information about an identifiable individual, including, without limitation, the Gramm-Leach-Bliley Act, Driver’s Privacy Protection Act, and Fair Credit Reporting Act (“FCRA”) (5 U.S.C. sec 16810);
  12. “Representative” means a director, officer, employee, agent, consultant or subcontractor of a party and those of any legal affiliate of such party;
  13. “Services” means the provision of access via the Internet to OutsideIQ’s proprietary reporting service known as “DDIQ” service as more particularly described on the Website or in any Specifications; and any documentation, materials, manuals, installation guide, user guides, and related information (whether in material or electronic form or other form) concerning the access use, operation and maintenance of the foregoing;
  14. “Specifications” means the functional, operational and technical specifications and requirements for the Services that are specifically identified as established by OutsideIQ and made available to a Client via the Services or the Website at https://sites.google.com/a/outsideiq.com/oiq-client-portal/home;
  15. “SSAE16 SOC 2” means Statement on Standards for Attestation Engagements (SSAE) No .16 Service Organization Control (SOC) 2;
  16. ‘”Third Party Data” means data and information included in a Third Party Database. “Source Content” includes Third Party Data;
  17. “Third Party Databases” means those databases owned or compiled by a Third Party Source and made available by OutsideIQ under these Terms of Use and any applicable Master Agreement;
  18. “Third Party Source” a third party provider of Third Party Database
  19. “Virus” includes any harmful programs or malicious code, including but not limited to contaminants, malware, time bombs or codes or instructions, which intend to disrupt the proper operation of a computer hardware system, network or any software;
  20. “User” means a specific individual assigned to each license or grant of access to use Services.

If you have any questions or comments regarding these Terms of Use please contact us at info@outsideiq.com.