Before you start using this Platform or our Products or Services, please review and accept this Agreement.
BY USING ANY PORTION OF THE PLATFORM OR THE SERVICES, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE PLATFORM AND THE SERVICES. If you are using the Platform or the Services on behalf of your employer or another entity, you represent that you are authorized to accept this Agreement on your employer’s or that other entity’s behalf.
Last Update: 11 Oct 2023
THIS Agreement (the “Agreement”) is entered into by and between the entity identified on Customer’s Purchase Order Form (or otherwise identified in writing); provided that if no Purchase Order Form is in place, Customer shall be deemed to have entered into this Agreement with FindMeCure Ltd. – a company incorporated under the law of England and Wales, registered into the Registrar of Companies for England and Wales under company number 10821379, with its official seat and registered office at 86-90 Paul Street, London, EC2A 4NE, United Kingdom (the “Company”), and each person, using the Platform and Services available at trialhub.com, including any information, material, or technology made available at trialhub.com (the “Customer”). Company and Customer are hereinafter sometimes referred to collectively as the “Parties” and individually as a “Party.”
This Agreement governs the use of any and all Company Services and/or Products by Customer before and after signing a Purchase Order Form. By executing and returning to the Company the Purchase Order Form, you certify that you have the authority to bind and to act on behalf of the Customer in compliance with the terms of the Purchase Order Form and this Agreement.
This Agreement is effective and binding to Customer from the date on which Customer has started using the Platform or the Services. The Purchase Order Form shall be effective and binding to Customer from the date on which Customer returned to Company an executed Purchase Order Form. In the event of any conflict between this Agreement and the Purchase Order Form, the Purchase Order Form shall govern solely with respect to the subject matter of such conflict.
WHEREAS, Company has developed TrialHub, an online platform (the “Platform”), providing data and analysis that can facilitate the process of planning clinical research studies and related services (the “Services”).
WHEREAS, Company is willing to make the Platform and Services available to Customer under the terms and conditions of this Agreement and the Purchase Order Form if such has been executed between the Parties.
WHEREAS, Customer desires to procure such Platform and Services and use the Company Products as listed in the Purchase Order Form under the terms and conditions of this Agreement and the Purchase Order Form if such has been executed between the Parties.
WHEREAS, it is the intent of the Parties that all transactions under this Agreement will fully comply with all applicable laws.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Definitions. Capitalized terms not otherwise defined in this Agreement will have the meanings ascribed to them below.
“Access Credentials” means any username, identification number, password, or other security code, method, or technology used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform and Services.
“Account” means an interface within the Platform configured by Customer to upload and manage Customer Data.
“Authorized Users” means all users, including but not limited to employees of Customer, authorized by Customer to access the Services and the Platform pursuant to the terms and conditions of this Agreement.
“Confidential Information” means any information disclosed by one Party to the other or accessed by the other under this Agreement, which, (i) if in written, graphic, machine-readable or other tangible forms may be marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, may be identified at the time of disclosure as confidential and reduced to writing marked “Confidential” and delivered to the Receiving Party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Platform and the Services will be deemed Confidential Information of Company, and Customer Data will be deemed Confidential Information of Customer.
“Customer Data” means data and any other content that is uploaded by an Authorized User in the Platform whether derived from Customer or a third party (other than Company).
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Customer or any Authorized Users or any third party from accessing or using the Services, Products or Platform as intended by this Agreement, the Purchase Order Form or other agreements, signed by Company with third parties.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Losses” means any and all awards, judgments, and settlements actually incurred in connection with an Action.
“Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names, or other identification of such Party.
“Permitted Use” means any use of the Services or the Platform by Customer or an Authorized User for the benefit of Customer solely for its business operations and in compliance with this Agreement.
“Platform” means the servers, software, and other systems and/or equipment used by Company to provide the Products and/or Services. The Platform consists of the Products. Customer shall be entitled to use only the Products, incorporated in the Platform, which have been explicitly listed in the Purchase Order Form, executed between the Customer and the Company, as well as the Products granted to the Customer for Free Use as defined herein.
“Package” means the selected package of Products and Services in combination of Package Term, offered by Company and chosen by Customer, corresponding to the respective Fees due, as described in the Purchase Order Form, executed by both Parties.
“Services” means the professional services provided by the Company to the Customer in consideration of the Fees (unless granted for free with the explicit preliminary confirmation of the Company), as included in the Purchase Order Form.
“Package Term” means the term of each Package as set forth in the respective Purchase Order Form. Package Terms shall always be included in the Term of the Agreement;
“Products” means the Platform sections (components) and functionalities (and all related data and output results) provided by the Company to the Customer in consideration of the Fees (unless granted for free with the explicit preliminary confirmation of the Company), as included in the Purchase Order Form;
“Term of the Agreement” means the term of validity of this Agreement.
Access to Products and Use of Services.
Access to the Platform and the Company Products and Services.(i) Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term of the Agreement, Company hereby grants to Customer, and Customer hereby accepts, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable right (unless otherwise agreed by the Parties) to access the Platform and the Products incorporated in the Platform as Company may supply or make available to Customer and its Authorized Users solely for the Permitted Use of the Platform and the Products in accordance with the terms and conditions set forth herein. The right to access the Platform and the Products, granted hereunder, will apply to Customer and its Authorized Users only. (ii) Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term of the Agreement the Customer may use the Services of the Company, included in the Purchase Order form executed by and between the Customer and the Company. (iii) When a Purchase Order Form has been executed, the Platform, Services and Products may be used by Customer and its Authorized Users under the terms and conditions of this Agreement together with the terms and conditions of the executed Purchase Order Form and the chosen Package, including any applicable rules and guides provided by Company to Customer. The Company may provide the Services under certain additional rules and guides made available to the Customer on the Platform, i.e. on the page where the Services may be accessed or requested, and the Company may amend such rules and guides from time to time. Such rules and guides shall be binding to the Customers and the Company shall not be obliged to provide the Services unless the Customer is fully compliant with such rules and guides.
Ownership of Platform.(i) Company has and will retain sole control over the operation, provision, maintenance, and management of the Platform. Company will determine in good faith the selection, deployment, modification, support, maintenance, repair upgrades, updates, corrections, repairs, and replacement of the Platform and the Products. (ii) Customer has and will retain sole control over all Customer Data, except as set forth herein, as well as sole responsibility for all access to and use of the Platform by Customer and any Authorized User. (iii) Company has the right to review and monitor the use of the Platform, Services and Products by Customer and its Authorized Users to ensure compliance with the terms of this Agreement as well as any applicable rules and guides.
Changes. Company reserves the right, in its sole discretion, to make any changes to the Platform and Services that it deems necessary or useful or to comply with applicable law.
Reservation of Rights. Except for the rights to access the Platform, granted herein for the Term of the Agreement, nothing in this Agreement grants any title or ownership interest in or to any Intellectual Property Rights in the Platform. All title and ownership interest in and to the Services or the Platform, are and will remain with Company. If not otherwise indicated in the Purchase Order Form, the Customer shall be granted a non-exclusive, non-transferable, non-sublicensable license to use results from Company Services. Parties explicitly agree that Company shall be entitled to provide the Services and any results of Company Services to third parties without limitation.
Authorization Limitations and Restrictions. Customer’s access to and use of the Platform is subject to the restrictions in this Section 2.6. Customer agrees to be bound by and liable for the actions of its Authorized Users and will not permit any Authorized User to access or use the Platform or the Services except as expressly permitted by this Agreement. The Parties agree and Customer acknowledges that a violation of this Section 2.6 will be deemed a material breach of this Agreement. Customer or its Authorized Users will not:(i) copy, modify or create derivative works of the Platform; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any of the Services, Products or the Platform to any third party; (iii) reverse-engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (iv) input, upload, transmit, or otherwise provide to or through the Platform, any information or materials that Customer knows to be unlawful or injurious, or knows to contain, transmit or activate any Harmful Code; (v) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform, Services or Company’s provision of services to any third party; (vi) access or use the Platform or Services in any manner or for any purpose that violates any applicable law; (vii) access or use the Platform or Services in any manner to violate the copyright or other intellectual property right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation; (viii) access or use the Platform for purposes of competitive analysis of the Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to Company’s detriment or commercial disadvantage; or (ix) otherwise access or use the Platform or Services beyond the scope of the authorization set forth in this Agreement.
Customer Liability. Customer is liable for Customer and its Authorized Users for any violation of the provisions in this Section, including any person who obtains any Access Credentials of an Authorized User through a fault of Customer. Customer shall ensure that each Authorized User maintains the confidentiality of the Access Credentials. Customer agrees to defend, indemnify, and hold Company and its Affiliates and their employees, directors, officers, contractors, and agents from any and all Losses resulting from or in connection with a violation of this Section by it, its Authorized Users or any persons who get access to the Access Credentials of its Authorized Users.
Works Made for Hire. Feedback. The Parties do not contemplate the development by Company of any custom-developed deliverables or work products for Customer unless explicitly stipulated in the Purchase Order Form in relation to the Services provided by the Company. Nothing provided under this Agreement will be considered work made for hire unless explicitly stipulated in the Purchase Order Form in relation to the Services provided by the Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an unrestricted license to use any feedback rendered by Customer or its Authorized Users relating to the Platform or the Services (excluding any Customer Data included therein) given to Company, including all Intellectual Property Rights relating thereto.
Fees. Customer will pay Company the Fees in the amount and in accordance with the Package of Products and Services chosen (“Fees”). Fees shall be due after a Customer has selected a Package and signed a Purchase Order Form.
Taxes. Customer will, in addition to the other amounts payable under the executed Purchase Order Form, pay, if applicable, all applicable customs, duties, sales, use, value added, or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement in combination with the executed Purchase Order Form on Customer, excluding only taxes based on Company’s net income. Customer agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors, and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties, or assessments.
Invoice. Within ten (10) business days after Customer signing the Purchase Order Form, Company shall send an invoice to the email address of Customer, indicated above. Any such invoice shall be considered binding and accepted for payment by Customer.
Payment Terms. Customer will pay all Fees within thirty (30) days after the date of the invoice therefor. Customer will make all payments hereunder in the currency stated on the Purchase Order Form and the invoice. Customer will make payments to Company bank account indicated on Company invoice.
Package Upgrade. If Customer wishes to upgrade its chosen Package to a different Package, including a higher number of Products and/or Services, parties shall sign an additional Purchase Order Form, Company shall issue an invoice and Customer shall pay the additional Fee due. After the additional Purchase Order Form is executed by both Customer and Company, Company shall upgrade Customer’s Package in accordance with the newly signed additional Purchase Order Form.
Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Company will charge interest on the past due amount at the rate of 0,5% per day, or the maximum allowable under applicable law, whichever is higher. If Customer fails to pay more than all of the Fees due for a period of more than sixty (60) days after the date of the invoice, Company shall be entitled to terminate use of the Platform and the Services by Customer and all its Authorized Users without notice, notification or payment of any compensations or refunds of received amounts.
No Deductions or Setoffs. All amounts payable to Company under the executed Purchase Order form will be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason or deduction or withholding of tax as may be required by applicable law.
Free use. If the Customer requests and is granted by the Company a free trial of certain functionalities of the Platform or the Customer self-registers for a free trial or a free usage of certain functionalities the Platform (“Free Use”) the Company may make one or more Products (or certain part of such Products) available to the Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Customer registered to use the applicable Service(s) or Product(s), or (b) the execution of a Purchase Order Form. Additional trial terms and conditions may appear on the Platform. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. All Customer restrictions and obligations of this Agreement shall be binding for non-paying Customers during Free Use periods. Any data that the Customer may enter into the Platform, and any customizations made to the Products, during the Free Use will be permanently lost unless a Purchase Order Form is executed for the same Products as those covered by the trial before the end of the trial period. The Customer cannot transfer data entered during the free trial to a Product that would not be included in the Purchase Order Form. Notwithstanding any other representations, warranties, exclusive remedies and disclaimers herein, during the Free Use the Services and Products are provided “as-is” without any warranty, and Company’s liability under any such Free Use shall be capped at 50 GBP.
Term of the Agreement. This Agreement will commence upon the date on which Customer has started using the Platform and/or the Services (the “Agreement Effective Date”). Unless terminated earlier in accordance with the termination rights set forth in this Section 4, this Agreement will remain in full force and effect whilst Customer is using the Platform and/or the Services and a Package Term is in force.
Package Term. Unless otherwise stipulated in the Purchase Order Form, the term of each Package is one (1) year as of the effective date of the Purchase Order Form. The effective date of the Purchase Order Form shall be the date on which both Company and Customer have signed the Purchase Order Form, unless another effective date is explicitly stipulated in the Purchase Order Form.
The Package Term shall automatically renew for a new term of one (1) year (unlimited number of times) in the event that within the Package Term no Party provides the other with a written notification for its termination no later than a month prior to the Package Term expiration.
Termination.(i) By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:(a) if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or (b) immediately without cause or penalty upon written notification by Customer to Company; (c) without cause or penalty upon three (3) months prior written notice by Company to Customer; or (d) pursuant to any other termination clauses in this Agreement.
Effect of Termination. Upon termination of this Agreement, Customer and its Authorized Users shall immediately be deprived of the functionalities of the Platform and the use of Services. The Customer shall be entitled to extract its Customer data for a period of twelve (12) months after Termination unless otherwise agreed by the Parties. After expiry of such period Customer shall not be able to have access to any Customer Data and Company shall be entitled to close Customer account/s. All rights of Customer under this Agreement will expire upon termination of this Agreement, but all payment obligations accrued hereunder prior to termination or expiration will survive such termination. In any case of termination, except for Section 4.2.(c) Company shall not refund any Fees received by Customer, regardless of Package Term, Term of the Agreement or time period elapsed unless otherwise agreed by the Parties. In the event of termination pursuant to section 4.2.(c), the Company shall refund to the Customer any prepaid Fees for Services not provided by the Company to the Customer prior to termination and/or any prepaid Fees for the remaining period of the Term of the Agreement after termination during which the Customer shall not be able to use the Platform as a result of the termination (whichever is applicable).
Initial Set-Up. Maintenance and Support.
Initial Set-Up. The Customer shall customize and set up its own account. The Customer shall enter its own Customer Data and operate the accounts with its own resources.
Scheduled Maintenance. The Company shall engage in maintenance, upgrades, or any other activity that may result in Unavailability (collectively, “Scheduled Maintenance”) after duly informing Customers.
Support. During the Term of the Agreement, Company shall respond within reasonable time frames to any reported Issue from Customer and any Authorized User.
Customer Systems and Cooperation. Customer will at all times during the Term of the Agreement provide cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations hereunder.
Effect of Customer Failure or Delay. Company is not responsible or liable for any delay or failure of performance caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). In such a case, Company will be given an extension of time equal to the number of days solely delayed by Customer to perform Company’s obligations.
Corrective Action and Notice. If Customer becomes aware of any actual or threatened prohibited activity by Customer or any Authorized User, Customer will, and will cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures that are necessary to stop the activity; and (b) notify Company of any such actual or threatened activity.
Company shall not be obliged to monitor the information, which Customer and the Authorized Users upload and store in the Platform. Company shall not be responsible for the content of stored, distributed, used, transmitted information, data, text, files, materials and content, uploaded or stored by Customer or Authorized Users, as well as for the activity of Customer or Authorized Users, performed with the Platform.
The Customer understands and agrees that Company has the right to reasonably decide which actions of Customer and the Authorized Users constitute a violation of this Agreement, violation of laws, violation of rights of third parties and to undertake the appropriate measures to remedy such violation, such as termination of this Agreement and/or termination of the use of Platform and/or Services, as described herein.
Customer hereby grants the Company a royalty-free, non-exclusive, non-transferable, non-sublicensable, revocable, limited-term license to use Customer’s Marks in any Company marketing materials.
Representations and Warranty.
Company Warranty. During the Term of the Agreement, Company shall grant the use of the Platform and shall provide its Services according to the respective Purchase Order Form executed with the Customer. The foregoing (a) will not apply if (i) caused by factors outside of Company’s reasonable control; (ii) resulting from any improper actions or inactions of Customer or its Authorized Users, or any third parties who gets access to the Platform or the Services from Customer or any Authorized User. Company shall promptly notify Customer if Company is no longer able to meet its obligations or has reasonable concerns that it may not be able to meet such obligations.
Customer Representations, Warranties and Covenants. Customer represents, warrants, and covenants to Company that Customer owns or otherwise has and will have the rights and consents in and relating to the Customer Data to allow Company to process such Customer Data under the terms and conditions of this Agreement. Customer agrees to defend, indemnify and hold Company harmless from any Losses incurred by Customer in connection with the breach of the representation and warranty set forth in this Section 8.2.
Disclaimer of Any Other Warranties. Except for the express warranties provided in this Section 8, the Platform and Services are provided “as is” and Company hereby disclaims all warranties, whether express, implied, statutory or other, and Company specifically disclaims all implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from the course of dealing, usage or trade practice. Without limiting the foregoing, Company makes no warranty of any kind that the Platform, any Services or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services except if and to the extent expressly set forth in this Agreement, or be secure, accurate, complete or error-free.
Confidential Information. In connection with this Agreement, each party and their Affiliates (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party and their Affiliates (as the “Receiving Party“).
Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will:(i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9.3; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
Compelled Disclosures. If the Receiving Party is compelled by the applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (a) promptly, and to the extent practicable prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.
Nondisclosure. Each Party (each a “Receiving Party”) agrees that it (i) will use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes, (ii) will restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a bona fide need to know for such purposes, and (iii) will not disclose such Confidential Information to any third party other than such Party’s affiliates without the prior written approval of the Disclosing Party. The foregoing obligations will be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement.
Limitation of Liability.
EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS DIRECTORS, SHAREHOLDERS, PARTNERS, LICENSORS, SERVICE COMPANIES, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDIES OF ITS ESSENTIAL PURPOSE.
CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED ONE TIME (1X) THE AGGREGATE AMOUNT OF REVENUES PAID BY CUSTOMER TO COMPANY FOR SERVICES PROVIDED UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY, OR IF LESS THAN TWELVE (12) MONTHS HAVE ELAPSED SINCE THE AGREEMENT EFFECTIVE DATE, THE REVENUES TO BE PAID BY CUSTOMER TO COMPANY IN THE FIRST TWELVE (12) MONTHS FROM THE AGREEMENT EFFECTIVE DATE.
UNLIMITED LIABILITY. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES THE LIABILITY OF EITHER PARTY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY WHICH MAY NOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
Company Indemnification. Company will defend Customer from and against any and all Losses incurred by such Customer arising out of or relating to any third-party claim, suit, action, or proceeding (each, an “Action“) (other than an Affiliate of Customer ) to the extent that such Losses arise from or are in connection with any allegation in such Action relating to: (i) Company’s gross negligence or willful misconduct in connection with this Agreement; or (ii) an allegation that the Services infringe an Intellectual Property Right of a third party. The foregoing obligation does not apply to any Action or Loss to the extent it arises out of:(i) access to the Platform or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Company; (ii) modification of the Services other than by or on behalf of Company or without Company’s written approval; (iii) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer at no cost by or on behalf of Company (the foregoing are, collectively, the “Exclusions”); or (iv) act, omission or other matter described in Section 11.2(i), or Section 11.2(iii).
Customer Indemnification. Customer will defend Company from and against any and all Losses incurred by Company in connection with any Action (other than an Affiliate of Company) to the extent that such Losses arise out of or relate to any allegation of:(i) the infringement of the law or a third-party’s Intellectual property Right by Customer Data or any other materials, information documents, Data, software, content, or technology provided by or on behalf of Customer or any Authorized User; (ii) the Exclusions; or (iii) gross negligence or willful misconduct by Customer or any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
Sole Remedy. This Section 11 sets forth Customer’s sole remedies and Company’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any service or the platform infringes, misappropriates or otherwise violates any third-party intellectual property or other rights, taking in consideration the limitations in Section 10 above.
Security and Privacy.
Safeguards and Security Measures. Company will employ all commercially reasonable technical controls and use its best efforts to protect its Platform and Customer Data.
Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance will be excused and the time for performance will be extended accordingly provided that the Party affected immediately notifies the other Party and immediately takes all reasonably necessary steps to resume full performance. If Force Majeure Event lasts for more than 15 days with respect to Company and 30 days with respect to Customer, then Customer may terminate this Agreement. Financial difficulty shall not be deemed a force majeure event.
Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of England and Wales without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the competent courts located in England and Wales.
Notices. All notices and other communications hereunder will be in writing and will be deemed to have been duly given when sent by email, to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.
Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party will hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture, or formal business entity of any kind.
Severability. If any provision of this Agreement is held invalid or unenforceable, it will be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
Modification. The Company reserves the right to amend this Agreement at any time by notifying Customer as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If Company substantively amends this Agreement, Company will post the updated Agreement on its website or otherwise provide notice to Customer at least ten (10) days’ notice before the changes take effect during which period of time Customer may reject the changes by terminating its account. If Customer does not agree to any future Agreement, then Customer is not to use or access (or continue to access) the Services or the Platform. It is Customer’s responsibility to review this Agreement regularly. Use of the Platform or the Services after the effective date of a modification constitutes your acceptance of any modified Agreement by Customer.
Third Party Rights. A person who is not a Party to this Agreement shall have no rights to enforce any term of this Agreement, including under the Contracts (Rights of Third Parties) Act 1999 (as amended, extended or re-enacted from time to time).
Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
Assignment. The Customer will not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, without the prior written consent of the Company.
Entire Agreement. The Agreement constitutes the entire agreement and understanding between the Parties relating to the matters contemplated by this Agreement and supersedes all previous agreements (if any and whether in writing or not) between the Parties in relation to such matters. The Parties acknowledge and agree that, except as otherwise expressly provided for in this Agreement, they are not entering into this Agreement on the basis of, and are not relying on and have not relied on, any statement, representation, warranty or other provision (in any case whether oral, written, expressed or implied) made, given, or agreed to by any person (whether a Party to this Agreement or not) in relation to the subject matter of this Agreement, provided that nothing in this Agreement shall exclude any Party from liability for fraud or fraudulent misrepresentation.
United States Entities. In the event Customer is a US entity, the following provisions shall apply to Customer, and any provisions in this Agreement that are contradictory (including, without limitation, Section 13.2) shall be superseded by the provisions set forth in this Section 14:
Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
Venue. The parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for Wilmington, Delaware for any lawsuit, claim or dispute arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.