Service Provider Services Agreement
This Service Provider Services Agreement (the "Agreement") is a legal agreement by and between dataroomHQ, Inc. with its principal offices at 101 Crawfords Corner Road, Suite 4116, Holmdel, NJ 07733 ("Service Provider"), and the party identified on the order form or similar document and entering into this Agreement for the use of the Service ("Client") on the date initially agreed to by Client (the "Effective Date").
By signing the "order form", Client acknowledges that it has read and accepts the terms and conditions of this Agreement in its entirety. If you are entering into this Agreement within the scope of your employment or in connection with your engagement as an independent contractor, then the term "Client" includes your employer or principal contractor, as applicable, and you warrant and represent that you are authorized to accept this Agreement on such employer's or principal contractor's behalf.
In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1. Scope of agreement
Service Provider offers a service and tools that (a) permits Client to create automated reporting and conduct analysis to help assist in the company's operational metrics reporting and analysis; (b) presents information to Client on and through Service Provider applications, websites, and platforms for decision making processes (e.g. graphs, metrics, etc.), and (c) offers certain ancillary applications, analytics, documentation, and services to Client to facilitate business planning and strategy all as more particularly addressed in the Order Form (the "Service").
As more particularly described in the Order Form, Client desires to subscribe to and Service Provider desires to make such Service available to Client.
2. Description of services
2.1 Service
Subject to the terms and conditions contained in this Agreement, Service Provider agrees to use commercially reasonable efforts to furnish the Service to Client as well as any other ancillary services, if any, expressly described on an order form or similar document agreed to by the parties and incorporated herein ("Order Form").
For each clinical trial, Client and Service Provider will enter into a separate Order Form detailing the scope of the service, the pricing, the term, and any other specific terms and conditions. In the event of a conflict between this Agreement and the Order Form, the terms of such Order Form will control.
2.2 Availability of service
Service Provider will use commercially reasonable efforts to make the Service available to Client in accordance with that specified on the Order Form or Service Provider's standard Service documentation. Service Provider will make good faith efforts to perform service and maintenance to the Service outside peak usage hours.
Client acknowledges that availability of the Service may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; and/or (iii) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Service requirements. Service Provider disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure and/or compatibility.
Client is responsible for providing all equipment and telecommunication services necessary to access the Service.
2.3 Modifications to service
Service Provider reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason without prior written notice to Client; provided, however, such changes to the Services will not materially degrade the performance, availability or security of the Services during the period for which Client has ordered the Services.
2.4 Configuration and integration services
Service Provider will configure the Service in accordance with the requirements set forth in the Order Form, including integrating the Service into the designated Client systems. Client acknowledges that the success of this configuration and integration is contingent on (a) Client making key personnel available to collaborate on such configuration and integration; (b) Client providing timely, accurate, and complete information; and (c) Client providing access to the necessary Client systems.
2.5 Customer service, training, and technical support
Service Provider will provide Client with customer support and maintenance for the Service in accordance with Service Provider's standard service offerings unless otherwise specified on the Order Form.
2.6 Right to remove
Service Provider has the right in its sole discretion to remove or block any text, images, artwork, technology and other content, data, information, materials and other items provided or made available to Service Provider or on the Service by Client or its users ("Client Materials") at any time where (a) such Client Materials violate applicable laws, regulations, orders, or is in violation of Service Provider's applicable policies and procedures; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Service, Service Provider, or any third party; or (c) in order to respond to law enforcement or any other governmental authority.
2.7 Professional services
In the event that Client desires to procure custom or professional services from Service Provider, the parties will enter into a mutually agreed professional services agreement or custom statement of work to reflect such additional services.
3. Client responsibilities
3.1 Passwords
Client acknowledges that use of the Service requires that it register with Service Provider. Client shall cause all users that Client authorizes to access the Service to create an account to have access to the Service ("Registered Users").
Client shall cause each Registered User to (a) provide true, accurate, current and complete information about the Customer ("Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
Service Provider has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Service to anyone that provides false or inaccurate data. Each Registered User is entirely responsible for the security and confidentiality of such Customer's password and account.
Client and each Registered User are entirely responsible for any and all activities that occur under that Registered User's account. Client shall immediately notify Service Provider of any unauthorized use of a Registered User's account or any other breach of security of which Client becomes aware.
3.2 Accuracy and review of client material
Client assumes sole responsibility for:
- the Client Materials; and
- ensuring that the Client Materials do not infringe or violate any right of any third party.
3.3 Compliance with Service Provider policies
Client will at all times comply with Service Provider's posted policies.
4. Data backup
Service Provider disclaims any and all responsibility for any loss of any Client Materials, data or results from the Service. Service Provider is not responsible for the backup of any Client Materials, data or results.
To the extent within its control, Client is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data.
Client is also responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any data. In the event of termination or expiration of this Agreement or disconnection of the Service, Service Provider may delete or store, in its discretion, any files, programs, data or messages associated with Client's account; provided that anything stored will continue to be protected under the applicable confidentiality obligations under this Agreement.
5. License grants
5.1 Service Provider's grant of license
Service Provider grants Registered Users of Client a limited, royalty-free, worldwide, non-exclusive, non-transferable license to use, access, input data into, process data through and publicly display the Service for Client's internal use.
Client (or a Registered User) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes or make the Service available to non-Registered Users. Service Provider grants no rights other than explicitly granted herein.
Client will not, and will not authorize Registered Users to: (i) sell, resell, lease, lend, or the functional equivalent thereof, the Service in whole or in part, to a third party, (ii) in any way alter, change, modify, adapt, translate or make derivative works of the Service, (iii) transmit any viruses or programming routines intended to damage, surreptitiously intercept, or expropriate any system, data or personal information, or (iv) sublicense or operate the Service for timesharing, rental, outsourcing, or service bureau operations, or to train persons other than Registered Users.
Service Provider reserves all rights not expressly granted to Client hereunder. All techniques, know-how, software, algorithms and methods or rights thereto owned by Service Provider at the time this Agreement is executed, developed during the course of the design, development, and provision of the Service, or which are employed by Service Provider in connection with the Service, shall be and remain the property of Service Provider or its licensors.
Client shall not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof. Client agrees not to access the Service by any means other than through the interfaces that are provided by Service Provider.
Client shall ensure that all access and use of the Service by Registered Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Registered Users that are contractors and agents. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Client.
5.2 Client's grant of license
Client hereby grants to Service Provider a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, publicly perform, publicly display, digitally perform, make, have made, store, maintain and import all Client Materials for the purposes of providing and operating the Service.
The license may also be exercised on behalf of Service Provider by third parties acting on Service Provider's behalf (e.g., technology partners, service providers and independent contractors) to the extent necessary to perform the Services.
5.3 Feedback
Service Provider shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the operation of the Service.
6. Ownership
As between Service Provider and Client, Service Provider (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing, including without limitation any customizations or custom integrations undertaken by Service Provider for Client.
As between Service Provider and Client, the Client Materials, any personal information or personal financial information collected by Client through the Service, and any projects completed or feedback received by Client through use of the Service shall be and remain the sole and exclusive property of Client.
As between Service Provider and Client, all data analytics and anonymized or aggregated data generated from Client's use of the Service shall be the sole and exclusive property of Service Provider. Service Provider shall have the right to use, create derivative works of, distribute and otherwise exploit all such data analytics, including for the building, training or tuning any artificial intelligence tools or platforms and anonymous or aggregate usage data derived from Client Materials or Client's use of the Services ("Usage Data").
7. Payments
7.1 Fees
During the term of this Agreement, Client will pay Service Provider the fees at the rates set forth on the Order Form or, if the parties have not agreed to an Order Form, those fees set forth for the corresponding Service on the Service Provider website (the "Fees").
Service Provider may increase the Fees at any time upon thirty (30) days prior written notice. Client shall pay Service Provider the Fees in U.S. funds annually in advance via credit card or other mutually agreed process.
If the Service automatically renews, Client authorizes the payment of Fees without any further notice or consent. If Client fails to pay those Fees not subject to a good faith dispute within thirty (30) days of receipt of an invoice, Client's credit card is rejected, or Service Provider otherwise does not receive payment, Service Provider may, in its sole discretion, suspend the Service.
7.2 Taxes
Client shall pay or reimburse Service Provider for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of the performance by Service Provider under this Agreement; excluding, however, taxes measured by Service Provider's profits, its overall sales, employment and similar taxes incurred in connection with persons performing services for Service Provider, and property or other taxes measured by the value of Service Provider's assets.
8. Regulatory requirements and information security
8.1 Information security program
Service Provider has implemented, and will maintain, a reasonable information security program ("Information Security Program") that includes customary administrative, technical, and physical safeguards designed (a) to ensure the confidentiality, security, integrity, and availability of Data; and (b) to protect against unauthorized access, use, disclosure, alteration or destruction of Data.
8.2 Compliance with law
In addition to the provisions described in Section 8.1, each Party shall comply with all applicable federal, state and local laws and regulations applicable to its performance hereunder.
8.3 Cooperate with compliance obligations
Each party will work with the other party to implement any mutually agreed upon amendments that are reasonably necessary to comply with applicable laws or industry standards designed to protect Confidential Information, including, without limitation, the standard contractual clauses approved by the European Commission for data transfers to processors, CCPA, PCI Standards, HIPAA requirements for business associates (as applicable), as well as similar and other frameworks.
9. Term and termination
9.1 Term
The initial term of this Agreement shall commence on the Effective Date and continue for the time period set forth on the Order Form ("Term"). Thereafter, this Agreement shall automatically renew for additional one (1) year periods unless terminated by written notice (e-mail or other electronic notice is sufficient) by a party at least thirty (30) days before the expiration of the then current term.
9.2 Suspension for cause
Service Provider may suspend Client's access to the Service upon written notice in the event that Client violates the license described in Section 5.1 or any of the policies described in Section 3.3, Client fails to pay any amount when due, Client breaches Section 10, or where Service Provider believes such action is necessary to protect the security or integrity of the Service or any data thereon.
9.3 Termination for cause
Except as otherwise provided for herein, either party may terminate this Agreement (a) upon the material breach of the other party, provided that the breaching party shall have seven (7) days to cure such breach following written notice unless the breach by its nature takes longer than seven (7) days to cure in which case the breaching party shall not be in breach so long as the party begins to cure the breach within seven (7) days and diligently completes such cure; (b) upon the cessation of business by either party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a party, which in the case of an involuntary petition the party shall have sixty (60) days in which to vacate such petition; or (c) upon the failure by Client to pay any amount due hereunder, provided that Client shall have three (3) business days to cure such monetary breach following written notice.
Service Provider may further terminate this Agreement with fourteen (14) days' prior written notice in the event that there is any material change in circumstance that will result in substantial interference in Service Provider's operation or any substantial increase in the cost of Service Provider's cost of doing business.
9.4 Effect of termination
Upon any termination of this Agreement, all rights and obligations of the parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 5.3, 6, 7.2, 9.4, and 12-17 will survive the termination of the Agreement, and (b) Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement.
10. Lawful conduct
Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance.
Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not authorize Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.
Client will not knowingly send any electronic communication from the Service that is unlawful, harassing, libelous, defamatory or threatening.
11. Indemnification
11.1
Client agrees to indemnify and hold harmless Service Provider (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the "Service Provider Indemnified Parties") against any cost, claim, liability or expense any of the Service Provider Indemnified Parties incur as a result of or arising out of or related to: (i) Client's breach of this Agreement or of Client's warranties, covenants and representations made hereunder; (ii) Client's willful, negligent, tortious or criminal acts or omissions; (iii) any improper use of the Service; and (iv) Client's violation of any third party rights.
The applicable Service Provider Indemnified Party shall provide Client written notice of any claim for it seeks indemnification under this Section.
11.2
Service Provider agrees to indemnify and hold harmless Client (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the "Client Indemnified Parties") against any cost, claim, liability or expense any of the Client Indemnified Parties incur as a result of or arising out of or related to: (i) Service Provider's breach of this Agreement or of Service Provider's warranties, covenants and representations made hereunder; (ii) Service Provider's willful, negligent, tortious or criminal acts or omissions; (iii) any improper use of Client's Materials; and (iv) Service Provider's violation of any third party rights.
The applicable Client Indemnified Party shall provide Client written notice of any claim for it seeks indemnification under this Section.
12. Confidential information
12.1
Each party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other's Confidential Information. Each party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other party's Confidential Information for any purpose other than as necessary to perform under this Agreement.
Each party shall use reasonable measures and reasonable efforts to provide protection for each other's Confidential Information, including measures at least as strict as those each party uses to protect its own Confidential Information. "Confidential Information" means information in the possession or under the control of a party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form, Client Materials, source code and information pertaining to usage and design of the Service, and the terms and conditions of this Agreement.
12.2
The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party's Confidential Information.
12.3
Because of the unique nature of each party's proprietary materials, each party understands and agrees that the other party may suffer irreparable injury in the event that a party fails to comply with any of the terms of this Section 12, and that monetary damages may be inadequate to compensate for such breach.
Accordingly, each party agrees that the other party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement against any actual or threatened breach of this Section 12.
13. Disclaimers of warranty; limitation of liability
13.1
The Service is made available by Service Provider to Client "as is" and "with all faults, errors, bugs and defects." Except as otherwise stated in this Agreement, Service Provider makes no other representation or warranty of any kind, express or implied, as to the condition, character, nature, capability, performance, security, availability, suitability, title, source or any other characteristic of the Service or any portion thereof.
Service Provider hereby disclaims all warranties, express or implied, with respect to the Service or this Agreement, including: (a) any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement; (b) any implied warranty arising from course of dealing, course of performance or usage of trade; or (c) any warranty that the Service will be secure or error-free, will meet Client's requirements, will contain any particular features or functionality, will always be available, accessible, uninterrupted, timely or secure, or operate without error.
13.2 No financial advice
The Service is a tool for Client's use. Service Provider does not give professional advice to Client regarding financial analysis, business planning or other financial strategies. Service Provider does not give professional advice. Unless specifically included with the Services, Service Provider is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance. Client is solely responsible for any financial decisions that result from use of the Service.
13.3
Except with respect to damages or liability arising from (a) a party's indemnification obligations under this Agreement, (b) a party's breach of its obligations with respect to Confidential Information, or (c) gross negligence or intentionally wrongful acts or omissions, in no event shall (i) either party be liable for consequential, indirect, incidental, punitive, exemplary or special damages arising out of or in connection with this Agreement or the Service, including any loss of revenue, profits, or data, even if such party has been advised of the possibility of such damages; and (ii) either party's total aggregate liability arising out of or in connection with this Agreement for all claims accruing during the term of this Agreement exceed the greater of the amounts paid or payable by Client under the Agreement.
14. Insurance
During the Term and until the first anniversary of its expiration or termination, each party will maintain policies of insurance in amounts that will sufficiently insure the party's obligations hereunder, including without limitation commercial general liability insurance and professional liability and errors and omissions insurance. Each party will provide evidence of such insurance upon request.
15. Notices
Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered by e-mail, personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each party set forth on the corresponding order form or similar document.
16. General provisions
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey without regard to its conflict of laws provisions. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words "include" and "including" and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words "without limitation."
This Agreement, including the corresponding order form or similar document and any other policies referenced herein or on such Order Form, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature.
This Agreement may only be modified, amended or supplemented in a written document agreed to by authorized signatories of both parties subsequent to the date of execution of this Agreement.
If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing party shall be awarded its reasonable attorneys' fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.
If Client submits to Service Provider a purchase order to effectuate its ordering or payment of the Services specified on an Order Form or otherwise agreed to by the parties and Service Provider acknowledges such purchase order by means of any kind of acknowledgement document, each of Client and Service Provider hereby rejects any terms or conditions appearing on any such purchase order or acknowledgement document that are in addition to, or different from, the terms and conditions of this Agreement and/or the Order Form ("Form Terms"), and the Parties agree that all Form Terms shall be void and of no force or effect.
See also: Security Policy · Privacy Policy · Terms of Service.