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These Standard Terms and Conditions (the “Terms”) describe and set forth the general legal terms governing the relationship between TrialKit Inc. a Delaware corporation (“TrialKit”) and the customer (“Customer”) identified on the applicable Order Form (as defined below, and such Order Form together with these Terms, the “Agreement”). This Agreement will become effective as of the last date of signature on the applicable Order Form (the “Effective Date”).
Capitalized terms will have the meanings set forth in this section, or in the section in which they are otherwise defined.
1.1 “Access Protocols” means any passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures that enable Customer or Authorized Users to access TrialKit Solution.
1.2 “Administrator” means one or more Authorized Users who are designated by Customer to (i) oversee the onboarding of Authorized Users to the TrialKit Solution, (ii) grant permissions to Authorized Users to access various Cases and other areas of the TrialKit Solution; and (iii) customize settings, including without limitation any privacy or content access settings.
1.3 “Admin Portal” means the user interface and related services through which an Administrator can set Access Protocols, view and manage Fees, and otherwise customize or manage Customer’s use of the TrialKit Solution.
1.4 “AI Tools” means any artificial intelligence and deep learning platforms, algorithms, tools and models included in TrialKit Solution, and includes certain third-party tools.
1.5 “Applicable Laws” means all applicable laws, statutes, ordinances, regulations, rules, and self-regulatory guidelines including, without limitation, Privacy Laws.
1.6 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access TrialKit Solution pursuant to Customer’s rights under this Agreement.
1.7 “Case” means any discrete legal case or controversy for which Customer creates a matter using TrialKit Solution.
1.8 “TrialKit Solution” means the software-as-a-service platform made available by TrialKit, as further described in Documentation and the Order Form, that allows Customer’s Authorized Users to upload, store, process, analyze and manage discovery materials and access additional features and functions through a web interface.
1.9 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
1.10 “Documentation” means the technical materials provided by TrialKit to Customer in hard copy or electronic form describing the use and operation of TrialKit Solution, as may be updated from time to time.
1.11 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.12 “Licensed Material” means results, reports, materials and documentation (including Output) made available to Customer as part of the Services.
1.13 “Marks” means an entity’s names, trade names, trademarks, service marks, logos, and other brand identifiers owned and used as indicia of identity by such entity, and all rights in and to the foregoing.
1.14 “Output” means materials generated by the TrialKit Solution using AI Tools.
1.15 “Order Form” means an order form signed by both Parties that incorporates these Terms by reference.
1.16 “Party” means each of TrialKit and Customer (together, the “Parties”).
1.17 “Performance Data” means technical, statistical, and performance data generated by our customers’ and end users’ use of the TrialKit Solution, and does not include any Customer Content from or in connection with which such Performance Data may have been derived.
1.18 “Privacy Laws” mean any national, international, federal, and state laws or regulations applicable to the collection, use, processing, and protection of personal information under this Agreement.
1.19 “Professional Services” means professional services provided by TrialKit to Customer as described in any Order Form (as may be further elaborated in any statement of work), including integration and onboarding services.
1.20 “Services” means any services provided by TrialKit to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of TrialKit Solution and Professional Services.
1.21 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by TrialKit as required for use of TrialKit Solution. The current requirements are described in the Documentation.
2.1 Access. Subject to Customer’s timely payment of the fees set forth in the Order Form (“Fees”), TrialKit will provide Customer with access to TrialKit Solution. On or as soon as reasonably practicable after the Effective Date TrialKit will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access TrialKit Solution. Customer will use reasonable efforts to prevent unauthorized access to, or use of, TrialKit Solution, and notify TrialKit promptly of any such unauthorized use known to Customer. Customer will be solely responsible for any unauthorized use of TrialKit Solution using Customer’s or any Authorized Users’ Access Protocol, including any Fees incurred in connection therewith.
2.2 Access Permissions. The Administrator(s) shall have administrative access to Customer’s instance of the TrialKit Solution through the Admin Portal in accordance with TrialKit’s then-current functionalities and features. The Administrator(s) shall have the ability to grant Access Protocols to each Authorized User to access certain pages or sections of the TrialKit Solution. Administrator(s) shall be responsible for granting or denying and such access, and shall notify TrialKit promptly if any permissions require modification, or if an Authorized User’s account must be deactivated. Authorized Users may have the ability to add additional Authorized Users to a particular Case without specific permission from the Administrator, subject to Customer’s settings and the then-current functionality of the TrialKit Solution. Customer acknowledges and agrees that Customer is solely responsible for all activity that occurs on behalf of its Authorized Users’ accounts or other means of access to the TrialKit Solution, and for such Authorized Users’ compliance with this Agreement. Customer shall prevent unauthorized access to, or use of, the Services (including the TrialKit Solution) and notify TrialKit promptly of any such unauthorized access or use known to Customer.
2.3 Support Services. Subject to the terms and conditions of this Agreement, TrialKit will exercise commercially reasonable efforts to (a) provide support for the use of TrialKit Solution to Customer by email during business hours, and (b) keep TrialKit Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.4 Hosting. Subject to Customer’s timely payment of applicable Fees, TrialKit will provide for the hosting of TrialKit Solution, provided that nothing herein will be construed to require TrialKit to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access TrialKit Solution from the Internet.
2.5 Compliance. TrialKit has the right, but not the obligation, to monitor Customer’s and its Authorized Users’ compliance with this Agreement and all Applicable Laws. If Customer or any Authorized Users are using the TrialKit Solution in any manner not in compliance with this Agreement, it shall be deemed a breach by Customer of this Agreement.
2.6 Third-Party Services. The TrialKit Solution may include, or be dependent on, certain third-party data, device graphs, software components, AI Tools, application programming interfaces, and other items (the “Third-Party Services”). TrialKit agrees that throughout the Term, TrialKit will make commercially reasonable efforts to maintain all rights and licenses in and to the Third-Party Services that are necessary to ensure that Customer and its Authorized Users can use the TrialKit Solution in the manner contemplated in this Agreement. TRIALKIT, NOT BEING THE OWNER, OPERATOR, SUPPLIER, OR PRODUCER OF THE THIRD-PARTY SERVICES NOR THEIR AGENT, DOES NOT ENDORSE ANY THIRD-PARTY SERVICES, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY SERVICES AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
3.1 License Grant. Subject to the terms and conditions of this Agreement, TrialKit grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the TrialKit Solution in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of TrialKit Solution. Customer may permit any Authorized Users to access and use the features and functions of TrialKit Solution as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access Trialkit Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate TrialKit Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the TrialKit Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Trialkit Solution, except as permitted by law; (e) interfere in any manner with the operation of the TrialKit Solution or the hardware and network used to operate the Trialkit Solution; (f) modify, copy or make derivative works based on any part of TrialKit Solution or Documentation; (g) access or use the TrialKit Solution to build a similar or competitive product or service; (h) attempt to access the TrialKit Solution through any unapproved interface; or (i) otherwise use the TrialKit Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of TrialKit or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The TrialKit Solution, Licensed Material and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of TrialKit and its suppliers. All rights in and to the TrialKit Solution and Documentation not expressly granted to Customer in this Agreement are reserved by TrialKit and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the TrialKit Solution, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, TrialKit grants Customer a royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5 (No Assignment)), non-sublicensable license to use Licensed Material during the Term solely for Customer’s internal business purposes; provided that Customer’s right to use any Licensed Material downloaded or exported during the Term shall survive for so long as Customer has legal or ethical obligations to maintain such Licensed Material. For the avoidance of doubt, as between the Parties Customer owns all Customer Content contained in any Licensed Material.
3.5 Open Source Software. Certain items of software, including AI Tools, may be made available with the TrialKit Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ownership) or 10 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, TrialKit makes such Open Source Software, and TrialKit’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to TrialKit a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. TrialKit will not identify Customer as the source of any such feedback.
3.7 Performance Data. TrialKit monitors the performance and use of the TrialKit Solution by our Customers and collects Performance Data in connection therewith. TrialKit shall not use or disclose any such Performance Data in a manner that could reasonably be used to identify Customer, its Authorized Users, or any individual.
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by TrialKit under this Agreement, Customer will pay to TrialKit the Fees. Fees shall include a monthly subscription Fee (the “Service Subscription Fee”, as further described below), a per-Case processing fee (the “Processing Fee”), and a data storage fee (“Data Storage Fee”). Unless otherwise provided in the Order Form, Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice; provided that the Processing Fee shall be estimated upon the initial upload of Customer Content with respect to each Case and shall be billed at the completion or termination of any such Case. The Processing Fee may vary from the initial estimate provided with respect to each Case and Customer agrees to pay the final Processing Fee notwithstanding any variation or fluctuation in same. TrialKit reserves the right to modify the Fees payable hereunder upon written notice to Customer at least thirty (30) days prior to the end of the then-current term. TrialKit will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided TrialKit has furnished such documentation for authorized expenses as Client may reasonably request. TrialKit reserves the right (in addition to any other rights or remedies TrialKit may have) to discontinue TrialKit Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Service Subscription Fee. In consideration for the access rights granted to Customer and the Services performed by TrialKit under this Agreement, Customer will pay to TrialKit a monthly Service Subscription Fee. The Service Subscription Fee will be billed at regular intervals in accordance with the Customer’s elections at the time of purchase. The Service Subscription Fee will continue and automatically renew on the commencement of the applicable Renewal Term(s). By subscribing, the Customer authorizes TrialKit to charge their payment method in accordance with the billing timeline set forth in the applicable Order Form (including without limitation during any Renewal Term). If TrialKit does not receive payment, (i) the Customer shall pay all amounts due on their account upon demand and/or (ii) the Customer agrees that TrialKit may either terminate or suspend the Servuces and continue to attempt to charge the designated payment method until payment is received (upon receipt of payment, the Customer’s access to the Services will be reactivated and for purposes of automatic renewal, their new Renewal Term commitment period will begin as of the day payment was received).
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on TrialKit’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the TrialKit Solution to Customer. Customer will make all payments of Fees to TrialKit free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to TrialKit will be Customer’s sole responsibility, and Customer will provide TrialKit with official receipts issued by the appropriate taxing authority, or such other evidence as TrialKit may reasonably request, to establish that such taxes have been paid.
4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
4.5 Free Trials and Promotions. Any free trial or other promotion (“Promotion”) that provides Customer-level access to the Services or other preferential fee rates of any sort must be used within the specified time of the Promotion. At the end of the Promotion period, your use of the applicable Services or other preferential access will expire and any further use of the Services on such preferential terms is prohibited unless you pay the then-current applicable Fees.
5.1 Types of Content. Subject to the Customer’s compliance with this Agreement, the Customer may upload information, data, text, software, sound, screenshots, photographs, graphics, video, messages, other materials used in discovery, and other Customer Content through the TrialKit Solution, including by upload and other input (collectively, “Input”). The Customer, and not TrialKit, is entirely responsible for all Input that the Customer uploads, emails, transmits, queries or otherwise makes available through or to the TrialKit Solution. TrialKit reserves the right to place reasonable limitations on Customer’s ability to upload or make Customer Content available. When the Customer makes available any Input on or to the TrialKit Solution, the Customer represents that the Customer has sufficient rights to use such Input in connection with the TrialKit Solution. In response to discovery materials and other Customer Content (including Input) that the Customer uploads to the TrialKit Solution, the TrialKit Solution, including its AI Tools, will generate new Customer Content (including Output) based on such Input. The Customer acknowledges that the Outputs are based on the Customer’s Inputs, and that TrialKit has no control over any such Inputs. Accordingly, all Outputs are provided “as is” and with “all faults”, and TrialKit makes no representations or warranties of any kind or nature with respect to any Inputs or Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. THE CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING ANY OUTPUT PRIOR TO ITS USE AND EXERCISING THE CUSTOMER’S OWN JUDGEMENT AS TO ITS SUITABILITY FOR USE.
5.2 License to Customer Content. As between TrialKit and Customer, the Customer is the owner of all right, title and interest in Customer Content. Customer hereby grants to TrialKit an irrevocable, non-exclusive, transferable, sublicensable, royalty-free right and license during the Term to store, access, reproduce, execute, archive, modify, perform, display, distribute, and use the Customer Content as reasonably necessary to perform the Services and to provide and improve the TrialKit Solution. For the avoidance of doubt, TrialKit does not use the contents of Customer Content to train any generative artificial intelligence tools. As between TrialKit and Customer, Customer will have sole responsibility for the accuracy, quality, and legality of the Customer Content.
5.3 AI Tools. The Service utilizes AI Tools to generate Output. The Customer acknowledges and agrees that TrialKit may share the Customer’s Inputs with the AI Tools for this purpose. Further, the Customer understands that additional license requirements may apply to certain AI Tools. The Customer must review and comply with any such requirements prior to the Customer’s use of any service that relies on AI Tools. The Customer assumes all risks associated with the Customer’s use of such AI Tools or reliance on any Output. TrialKit will have no liability for the unavailability of any AI Tools, or any third party’s decision to discontinue, suspend or terminate any AI Tools.
5.4 Storage. TrialKit will store the Customer’s data for as long as the relevant Case is active. If the Customer deletes the data, TrialKit will archive it for a period of ninety (90) days. During that 90-day period, the Customer may access the data, retrieve it, or move it to another system.
5.5 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the TrialKit Solution. Customer will have the ability to export Customer Content out of the TrialKit Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6. PROFESSIONAL SERVICES. Where the parties have agreed to TrialKit’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form. The Order Form will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form expressly states that it supersedes specific language in the Agreement.
7.1 Limited Warranty. TrialKit represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional manner substantially consistent with general industry standards. Provided that Customer notifies TrialKit in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, TrialKit will, as Customer’s sole and exclusive remedy for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at TrialKit’s option, refund the fees paid by Customer for the Services which gave rise to the breach.
7.2 Legal Disclaimer. TrialKit is not a law firm nor lawyer referral service, nor does it offer legal representation, legal advice, legal opinions, nor legal counseling. CUSTOMER EXPRESSLY AGREES NO ATTORNEY-CLIENT RELATIONSHIP IS FORMED BETWEEN CUSTOMER AND TRIALKIT. TrialKit may enable Customer to streamline the Customer’s provision of attorney services; however, this facilitation does not constitute legal advice. Whether to use any Output generated by the Service is solely the Customer’s decision and responsibility.
7.3 General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SERVICES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND TRIALKIT MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL LIABILITY FOR ANY INTERACTIONS BY OR BETWEEN CUSTOMER’S AUTHORIZED USERS, USES OR RELIES ON OUTPUT AT ITS OWN RISK AND TRIALKIT WILL NOT BE RESPONSIBLE FOR ANY LIABILITY INCURRED AS A RESULT OF SUCH USE OR INTERACTIONS. TO THE EXTENT THAT THE COMPANY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7.4 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage TrialKit’s system or data; and (e) otherwise violate the rights of a third party. TrialKit is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of TriaKit Solution contrary to or in violation of the representations and warranties of Customer in this Section 7.4 (Customer Warranty) constitutes unauthorized and improper use of TrialKit Solution.
8.1 Types of Damages. EXCEPT IN CONNECTION WITH A PARTY’S INDEMNITY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED PURSUANT TO APPLICABLE LAW: IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL TRIALKIT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
9.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of TrialKit.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to TrialKit). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in Section 9.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.1 By TrialKit. Subject to Section 10.2, TrialKit will defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from and against any and all losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third-party action, claim, or proceeding (each, a “Claim”) alleging that the use of the Service in accordance with this Agreement infringes or misappropriates any third-party Intellectual Property Rights (“IP Infringement Claim”); provided, however, that the foregoing obligations shall be subject to Customer: (i) promptly notifying TriaKit of the Claim (provided that failure to provide prompt written notice of the Claim will not alleviate TrialKit of its obligations under this Section 10.1 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing TrialKit, at TrialKit’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing TrialKit with sole control over the defense and negotiations for a settlement or compromise.
10.2 Exceptions to TrialKit Indemnification Obligations. TrialKit shall not be obligated to indemnify, defend, or hold harmless the Customer for an IP Infringement Claim to the extent arising from or related to: (a) use by Customer or any Authorized User of the Service not in accordance with this Agreement, or in any manner or for any purpose for which the Service was not designed; (b) any unauthorized modifications, alterations, or implementations of the Service made by or at the request of Customer; or (c) any use of the Service in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by TrialKit.
10.3 By Customer. Customer will defend, indemnify, and hold harmless TrialKit and its officers, directors, managers, and employees from and against any and all Losses incurred in connection with any Claim: (a) arising from Customer’s, or its Authorized Users’, gross negligence or willful misconduct; (b) arising from Customer’s, or its Authorized Users’ breach of the Agreement; (c) arising from any Customer Content, including any asserting that such Customer Content infringes, violates, or misappropriates any third-party Intellectual Property Rights; or (iv) arising from Customer’s use of Output in connection with the provision of legal services; provided, however, that the foregoing obligations shall be subject to TriaKit: (i) promptly notifying Customer of the Claim (provided that failure to provide prompt written notice of the Claim will not alleviate Customer of its obligations under this Section 10.3 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Customer, at Customer’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Customer with sole control over the defense and negotiations for a settlement or compromise.
10.4 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect for the duration set forth in an Order Form, unless earlier terminated in accordance with the Agreement (the “Initial Term”). Unless otherwise stated in the applicable Order Form, the Initial Term will be one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
11.2 Termination for Breach or Insolvency. Either Party may terminate this Agreement immediately upon notice to the other Party (a) if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach, or (b) if the other Party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 9 (Confidentiality); and (c) any amounts owed to TriaKit under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 4 (Fees and Expenses; Payments), 7.2 (Legal Disclaimer), 7.3 (General Disclaimer), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Indemnification), 11.3 (Termination for Breach), 11.3 (Effect of Termination), 11.4 (Data Export) and 12 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11.4 Data Export. During the Term and for ninety (90) days thereafter (the “Limited Export Window”), subject to Customer’s payment of Data Storage Fees, TrialKit will enable Customer to retrieve and download or export all Customer Content (including Output, as applicable) in accordance with the functionality of the Customer Solution. Following the sooner of (i) the expiration of the Limited Export Window or (ii) Customer’s written instructions (email to suffice), TrialKit will discontinue all use of Customer Content and delete all Customer Content in its possession. For the avoidance of doubt, Customer acknowledges and agrees that TrialKit shall have no obligation to continue storing any Customer Content for which Customer has not paid a corresponding Data Storage Fee.
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for New York for any lawsuit filed there against Customer by TrialKit arising from or related to this Agreement.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from TrialKit, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Publicity. TrialKit reserves the right to reference Customer as a use of the Services on its website and in its customer lists, and to use Customer’s Marks in connection therewith.
12.7 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material and Documentation.
12.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.9 Independent Contractors. TrialKit’s relationship to Customer is that of an independent contractor, and neither party is an agent, employee, joint venturer, or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of TrialKit.
12.10 Notices. All notices required or permitted under this agreement must be delivered in writing, if to TrialKit, by emailing legal@trialkit.ai and if to Customer by emailing the Customer email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and TrialKit.
