Last updated November 29, 2023.
1.1. “Authorized Users” means employees, agents, consultants, subcontractors, and other end users who Customer directly or indirectly authorizes to access the Products or Services, even if such end users are not directly controlled by Customer.
1.2. “Confidential Information” means (a) any information disclosed by one party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that by its nature reasonably would be deemed proprietary or confidential; and (b) any information that Discloser has received from others that may be made known to Recipient that Discloser is obligated to treat as confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information includes Customer Data.
1.3. “Customer” means the clinical research site registering for Products or Services.
1.4. “Customer Data” means all information, data and images, in whatever form, provided by Customer or its Authorized Users in connection with the Products or Services.
1.5. “Documentation” means the Product descriptions and user instructions that describe the operation and functionality of the Products. Documentation may be updated from time to time, provided that such updates do not materially reduce the functionality of the Products to customers in general.
1.6. “Products” mean the software products provided to Customer hereunder.
1.7. “Services” means any services provided by VersaTrial hereunder.
2. PRODUCTS AND SERVICES
3. CUSTOMER RESPONSIBILITIES
3.2. Member Account, Password, and Security. If the Products or Services require Customer to open an account, Customer must complete the registration process by providing VersaTrial with current, complete, and accurate information as required by the applicable registration form. Customer will use its existing Google or Microsoft login credentials. Customer is responsible for maintaining the confidentiality of Customer’s credentials and account and for any and all activities that occur under its account. Customer will notify VersaTrial promptly of any unauthorized use of Customer’s account or any other security breach. Customer may not use anyone else's account at any time without the permission of the account holder.
3.3. Links to Third-party Sites. The links in the Products may allow Customer to leave VersaTrial’s site. Linked sites are not under the control of VersaTrial and VersaTrial is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. VersaTrial is not responsible for webcasting or any other form of transmission received from any linked site. VersaTrial provides these links to Customer only as a convenience, and the inclusion of any link does not imply endorsement by VersaTrial of the site.
4.1. Product Warranty. VersaTrial warrants that: (a) the Products will perform materially in accordance with the Product descriptions contained in the Documentation; and (b) VersaTrial will use commercially reasonable efforts, including implementing commercially available virus protection software and procedures, to prevent the introduction of any time bombs, Trojan horses, viruses, worms, and other intentionally harmful code or programs in or to the Products, Customer Data, or Customer’s systems. For any breach of these warranties, Customer’s exclusive remedy will be termination for breach as described herein. VersaTrial does not warrant that the Products or Services will be sufficient to meet Customer’s requirements, or that the Products will operate error-free or without interruption. VersaTrial is not responsible for any delays, delivery failures, or any other loss or damage resulting from (i) the transfer of data over communications networks and facilities, including the Internet, and Customer acknowledges that the Products or Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; (ii) integration or combination of the Products or Services with any product or service not supplied by VersaTrial; (iii) use of the Products or Services other than for their intended purpose; or (iv) modification of the Products by any person or entity other than VersaTrial, in each case if the loss or damage would have been avoided in the absence of the circumstances specified in (i) through (iv) above.
4.2. Services Warranty. VersaTrial warrants that all Services will be performed professionally, in a workmanlike manner and by personnel with appropriate skills and expertise. If Customer is dissatisfied at any point with the performance of Services, Customer will promptly (and in any event within thirty (30) days following the completion of the Service in question) notify VersaTrial in writing. Upon receipt of such notice, VersaTrial will meet with Customer to discuss the problem and, if applicable, will arrange for the performance to be raised to the warranted level, and for identifiable defects caused by prior substandard performance to be cured. This Section sets forth the sole and exclusive remedy if Customer believes the Services are inadequate or defective.
4.3. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.3. Injunctive Relief. A breach by Recipient of this Section may cause irreparable and continuing damage to Discloser for which money damages are insufficient. Discloser will be entitled to seek injunctive relief and/or a decree for specific performance, and other relief as may be proper (including money damages if appropriate), without the need to post a bond.
6.3. Indemnification Process. The indemnified party will: (a) promptly give the indemnifying party written notice of the Claim (provided, however, that the indemnified party’s failure to give such notice will not relieve the indemnifying party of its indemnity obligations unless, and only to the extent that, the failure to give such notice materially prejudices the indemnifying party's ability to defend the Claim); (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any Claim against the indemnified party unless the settlement unconditionally releases the indemnified party from all liability with respect thereto); and (c) provide to the indemnifying party all reasonable assistance, at the indemnifying party's expense, in connection with the Claim.
7. LIMITATION OF LIABILITY
7.2. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL 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, REVENUE, GOODWILL OR BUSINESS OPPORTUNITIES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.3. Effect on Customer Data. At Customer’s written request, VersaTrial will make the Products available for up to sixty (60) days following termination to allow Customer to retrieve any Customer Data. Thereafter, subject to applicable law, VersaTrial will wipe and/or destroy the Customer Data so it is unreadable, unusable, and cannot be recovered.
9.2. Customer Data. Except with respect to Operational Data (as defined below), Customer retains ownership of all right, title and interest in and to all Customer Data.
9.3. Operational Data. “Operational Data” includes key performance indicators (such as study start-up timelines, signature timelines, and time until enrollment of first study patient), analysis, statistics, benchmarking algorithms and other similar operational information generated by the Products or derived from Customer’s use of the Products, but expressly excluding protected health information and third-party proprietary information or data. Operational Data is created by VersaTrial and is not Customer Data. VersaTrial may anonymize and aggregate Operational Data, and use such Operational Data for its business and/or research purposes. VersaTrial will own all right, title and interest in and to all Operational Data. If and to the extent that Customer may have intellectual property rights in any Operational Data, Customer hereby grants to VersaTrial a non-exclusive, non-transferable, fully paid-up license to use such Operational Data as described in this Section.
9.5. Feedback. VersaTrial will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and/or its Authorized Users relating to the operation or functionality of the Products or Services (“Feedback”). Neither Customer nor its Authorized Users will have any obligation to provide Feedback.
10. GENERAL TERMS
10.3. Notices. Any notice required or permitted to be given under this Agreement will be sufficient if given in writing and sent by email with confirmation of receipt: (a) if to Customer, to the email address provided upon registration for the Products; and (b) if to VersaTrial, to firstname.lastname@example.org. Either party may change its address for notice by giving written notice in accordance with the terms of this Section.