End User License Agreement
Revised: May 24, 2018
This END USER LICENSE AGREEMENT (“Agreement”) is a legal agreement between Therapeutic Research Center, LLC (“TRC,” “we,” “us” or “our”) and you (“you,” “your” or “User”), and governs your access to and use of: (i) the TRC product or service, including without limitation, any product or service features (collectively the “Service”), for which you and/or your entity or organization have purchased Usage Rights; and (ii) any documentation, content or materials accessible via the Service (collectively, the “TRC Content”).
Notwithstanding the preceding paragraph, additional terms may accompany a Service or certain TRC Content, in which case, such additional terms shall supplement and/or substitute the terms and conditions of this Agreement, to the extent set forth in such additional terms.
THIS IS A LEGAL DOCUMENT BETWEEN YOU AND TRC. PLEASE READ IT. BY ACCESSING AND/OR USING THE SERVICE AND ANY TRC CONTENT IN THE SERVICE, YOU: (i) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS IN THIS AGREEMENT; AND (ii) EXPRESSLY AGREE TO THE TERMS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICE OR ANY TRC CONTENT.
If you agree to the terms of this Agreement, you have the following rights, obligations and responsibilities:
“Usage Rights” means the usage rights purchased by you or your entity or organization, as applicable, with respect to the access to and/or use of the Service and/or any TRC Content, pursuant to the contractual agreement between you and/or your entity or organization and TRC, as applicable.
“Your Content” means all content, materials and other information that you upload, transmit or distribute to end users in and/or through the Service, as further defined in Section 6.3.1 below. Your Content does not include User Videos.
“Service Data” means all data, content and information regarding your use of the Service and/or the TRC Content in the nature of de-identified or aggregate system administrative data, statistical, demographical data, operational information, and data generated by or characterizing the use of the Service and/or the TRC Content.
Other capitalized terms used in this Agreement shall have the definitions given to those terms herein.
2. Grant of License.
2.1 During the Term and subject to the terms and conditions of this Agreement, including without limitation, your Usage Rights, TRC hereby grants to you a limited, personal, revocable, non-exclusive, non- transferable, non-sublicensable right and license to: (i) access and use the Service solely for your internal, non-commercial, informational and educational use only; and (ii) use, reproduce and copy (but only to the extent set forth herein), without modification, the TRC Content accessed through the Service, solely for your internal, non-commercial, informational and educational use only, in each case, subject to the following terms, conditions and restrictions:
2.1.1 The Service may permit users to download and/or print certain TRC Content. To the extent the Service for which you have Usage Rights permits the downloading and/or printing of TRC Content and/or User Documentation, you have the following rights:
(a) The license rights granted in this Section do not include the right to copy, print or download the TRC Content apart from the Service, and you agree not to copy, print and/or download such TRC Content apart from the Service except as otherwise expressly permitted herein.
(b) To the extent the Service permits you to download and/or print TRC Content and/or User Documentation, then the license rights granted in this Section include the right to make printouts and/or copies of the TRC Content, and distribute such printouts and/or copies, but only as follows: (i) for patient handouts included as part of the TRC Content, you may print and/or copy such patient handouts without modifications, and distribute such unmodified patient handouts, but only to your patients; and (ii) for all other TRC Content, you may make a reasonable number of printouts and/or copies of the TRC Content, without modification, solely for your internal, non-commercial, informational and educational use only. Any printouts or copies of the TRC Content shall retain TRC’s copyright and/or other proprietary rights notices, in addition to any and all disclaimers and/or limitations included in the TRC Content.
(c) Except as otherwise expressly set forth in this Section, downloading, printing, copying, modifying, distributing or otherwise using the Service and/or TRC Content for external commercial purposes, including commercial publication, sale or personal gain, is expressly prohibited.
2.1.2 You may only access and/or use the Service and the TRC Content within the scope of your Usage Rights. For example, certain Usage Rights may be limited to the use of the Service and/or the TRC Content by a single user or multiple single users, or impose other prohibitions or restrictions on your use of the Service and/or the TRC Content. It is your obligation to know and understand the scope and extent of your Usage Rights. If you have questions as to the Usage Rights purchased by you and/or your entity or organization, please contact TRC via email at email@example.com, or by telephone at (209) 472-2240. If you exceed the scope of your Usage Rights and/or the license rights granted to you in this Agreement, you agree: (i) that TRC may invoice you for the additional fees commensurate with any such unauthorized use; (ii) that you will pay such invoice within thirty (30) days of your receipt of the invoice; and (iii) that such remedy is not exclusive of the other remedies available to TRC in connection with such unauthorized use.
2.2 Except as expressly permitted in this Agreement, you agree not to:
2.2.1 License, sublicense (except as expressly permitted by this Agreement), lease, rent, timeshare, distribute, disclose, permit access to, or transfer to any third party, any portion of the Service and/or the TRC Content, whether for profit or without charge;
2.2.2 Store, reproduce, distribute, transmit, modify, adapt, perform, display (including by "framing"), publish or sell the Service and/or the TRC Content;
2.2.3 Translate, reverse engineer, disassemble, decompile, discover, or modify the Service or TRC's software;
2.2.4 Remove any copyright and other proprietary notices placed upon the Service or any TRC Content retrieved from the Service;
2.2.5 Circumvent any use-limitation or protection device contained in or placed upon the Service or any TRC Content retrieved from the Service or access or attempt to access any portion of the Service or TRC Content that you are not authorized to access;
2.2.6 Use the Service to execute denial of service attacks;
2.2.7 Perform automated searches against TRC's systems (except for non-burdensome federated search services), including automated "bots", link checkers or other scripts, without prior written permission from TRC;
2.2.8 Use the Service or TRC Content to create products or perform services which compete or interfere with those of TRC or its licensors;
2.2.9 Text mine, data mine or harvest metadata from the Service;
2.2.10 Impair or overburden the Service or any servers or systems associated with the Service;
2.2.11 Upload, transmit, or otherwise publish any communication or content, including without limitation, any of Your Content, to or through the Service that: (i) advertises or solicits the sale of goods or services; (ii) is obscene, indecent, or otherwise sexually explicit or abusive; (iii) defames any person or entity or otherwise invades anyone’s rights or causes any form of injury to any other person or entity; or (iv) contains software viruses or any other malicious code;
2.2.12 Use the Service to send the same or substantially similar unsolicited mail messages, whether commercial or not, to multiple recipients;
2.2.13 Impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity;
2.2.14 Violate any applicable local, state, national or international law;
2.2.15 Use the Service and/or the TRC Content in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party;
2.2.16 Download all or parts of the Service and/or the TRC Content in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Service and/or the TRC Content, in any form; or
2.2.17 Use the Service and/or the TRC Content in connection with life support systems, medical devices, or any application or other high risk activities where failure or malfunction could lead to possible loss of life.
2.3 You acknowledge and agree that the Service and the TRC Content are licensed and not sold. The Service and/or the TRC Content are owned by TRC and/or its licensors, and are protected by United States trademark and copyright laws and international treaty provisions. TRC and/or its licensors own and retain all right, title and interest in and to the Service and/or the TRC Content, including any and all patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Your possession or use of Service and/or the TRC Content does not transfer to you any right, title or interest in any of the foregoing and you will not acquire any such right, title or interest, except as expressly set forth in this Agreement.
2.4 You acknowledge and agree that all Service Data is and shall remain the sole and exclusive property of TRC. For purposes of clarity, TRC may make any legal use of the Service Data without notifying you or sharing such Service Data with you. Specifically, TRC may publish and share Service Data with others in aggregate or statistical form to promote the Service and/or the TRC Content, and for evaluating the efficiency, utility and functionality of the Service and/or the TRC Content.
3. Availability. To the extent the Service or TRC Content is hosted by TRC, TRC shall use commercially reasonable efforts to ensure that the Service and the TRC Content are available for use and/or access by end users on an uninterrupted basis. However, you acknowledge and agree that the Service and/or the TRC Content will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generality, and other causes. TRC shall not be liable for any failure or delay or interruption in the Service and/or the TRC Content due to failure of any equipment or telecommunications, or for failures resulting from any cause beyond TRC's reasonable control.
4. Modifications or Changes. TRC further reserves the right to modify, alter and/or change the Service at any time, including without limitation, by modifying, altering and/or changing the TRC Content or any Service features or functions, or by removing or disabling certain TRC Content or Service features or functions altogether. You acknowledge and agree that TRC shall have no liability to you with respect to any such modifications, alterations or changes, or with respect to any TRC Content or Service features or functions that have been disabled or removed from the Service.
5. Your Account.
5.1 In order to access and use the Service, you may be required to register for a user account (“Your Account”). In registering for Your Account, you must provide accurate, current and complete information as may be prompted by any registration forms or as otherwise requested by TRC (collectively, “Registration Data”). By submitting the Registration Data, you represent and warrant that the Registration Data is accurate, current and complete. If you are registering on behalf of an entity or organization, you further represent and warrant that you are: (i) an employee or representative of that entity or organization; and (ii) are authorized to accept and agree to this Agreement on behalf of the entity or organization and to otherwise bind the entity or organization to the terms and conditions hereof.
5.2 You are fully responsible for all usage and activity on the Service under Your Account and shall be liable for all such use and activity. You shall be solely responsible for maintaining the confidentiality and security of your login and password(s), and shall immediately notify TRC of any known or suspected unauthorized use(s) of Your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your login and password. You further agree to: (i) take reasonable efforts to resolve any unauthorized access to the Service; and (ii) reasonably cooperate with TRC in resolving the unauthorized access. Notwithstanding anything else herein, TRC reserves the right to pursue any and all claims against you under Your Account.
5.3 Except as otherwise authorized in writing by TRC and/or as permitted by your Usage Rights, the license rights granted in this Agreement are limited solely for your individual use in accessing and/or using the Service and/or the TRC Content. Except as otherwise authorized in writing by TRC and/or as permitted by your Usage Rights, you agree that under no circumstances will you permit any other person or entity, including your fellow employees or your entity or organization, to use Your Account for the purpose of accessing the Service, nor may you access and/or use the Service and/or the TRC Content using the account information of any other person, entity or organization.
6.1 TRC Content. While appropriate care has been taken in organizing and presenting the TRC Content, TRC does not warrant or guarantee its completeness, legality, correctness, accuracy, or timeliness. You acknowledge and agree that the TRC Content is provided for educational and informational purposes only, and is not a substitute for the advice, opinion or diagnosis of a trained medical professional. TRC does not perform any independent analysis or investigation of any products or medications described in the TRC Content, and you acknowledge and agree that TRC is not endorsing or advocating the use of any product or medication described in the TRC Content. TRC expressly disclaims responsibility for any consequence of the use or misuse of a product or medication due to any typographical error or other inaccuracy. Additional information on any product or medication may be obtained from the manufacturer.
6.2 Third Party Content. The Service may display or make available, and the TRC Content may include, third party content (including data, information, applications and other products services and/or materials) or provide links to third party websites or services (collectively, "Third Party Materials"). You acknowledge and agree that TRC is not responsible for the Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. TRC does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
6.3 Your Content.
6.3.1 The Service may permit end users to upload and/or transmit communications, content, materials and other information owned and/or controlled by such end users (collectively, “Your Content”). Your Content is and shall at all times remain your sole and exclusive property, provided that, you hereby grant to TRC a non-exclusive, non-transferrable, non-sublicensable license to load, transmit, distribute and/or make available Your Content in and through the Service. You are solely responsible for any and all of Your Content uploaded and/or transmitted in and/or through the Service. You represent and warrant to TRC: (i) that you own Your Content or otherwise have sufficient rights in Your Content to grant the license rights granted to TRC in this Section; (ii) that Your Content does not, and its use by TRC as contemplated in this Section will not, violate, infringe, or misappropriate the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party; and (iii) that there are no claims currently pending or threatened as to your ownership of or rights in Your Content, or as to your violation, infringement or misappropriation of any third party intellectual property rights, publicity or privacy rights, or other proprietary rights with respect to Your Content, and to your knowledge, you have not engaged in any acts or omissions likely to result in any such claims.
6.3.2 In the event that TRC discovers that Your Content is in violation of this Section 6 or Section 2.2.11 above, TRC may, without limiting its rights or creating any liability therefor, immediately remove Your Content from the Service, and may further block and/or restrict your access thereto pending resolution of any such violation.
6.3.3 TRC shall use commercially reasonable efforts to back up Your Content as part of its standard processes and procedures with respect to the backing up of the Service and/or the TRC Content generally. However, as between the parties, you are responsible for keeping appropriate copies and records of Your Content. Except as otherwise expressly set forth herein, TRC has no obligation to back up or maintain Your Content, and TRC takes no responsibility and assumes no liability for Your Content, including without limitation any loss or damage thereto.
7. Payments. You will pay all fees specified in any order forms or similar documentation under which you acquired your license rights in the Service (an “Order Form”), in each case, pursuant to the terms thereof. Except as otherwise specified herein or in an Order Form: (i) fees are based on the license rights purchased and not actual usage; and (ii) except as otherwise set forth herein, payment obligations are non-cancelable and fees paid are non-refundable.
8. Forums. The Service may include features such as chat rooms, bulletin board services or other interactive communication facilities (collectively, “Forum(s)”). TRC cannot and does not undertake to review all communications made on or through the Forums. TRC shall have the right, but not the obligation, to monitor the Forums and to edit or delete any materials that TRC in its sole discretion determines are in violation of this Agreement (including without limitation, Section 2.2 above), or that are otherwise contrary to TRC’s business interests and/or customer relations.
9. Videos. The Service may include certain functionality which permits end users to record videos and then upload and/or transmit those videos using the Service (“User Videos”). The User Videos are and shall remain the sole and exclusive property of TRC, and you acknowledge that you have no right, title or interest in such User Videos, whether by implication, estoppel or otherwise. You hereby consent to being filmed and/or otherwise recorded in and through the Service. You further irrevocably consent, without compensation, to the use of your name, image, likeness, biographical information, and other publicity rights, in any and all media, whether now or hereafter devised, throughout the universe in perpetuity, in connection with TRC’s providing the Service and/or the TRC Content to you pursuant to this Agreement.
10. Term and Termination.
10.1 Term. This Agreement will commence as of the date you first click “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” on the registration page (the “Effective Date”) and will continue until terminated as set forth in this Agreement.
10.2.1 This Agreement will terminate (or partially terminate with respect to a particular Service) as follows: (i) in the event you are no longer authorized to access and/or use a particular Service as a result of the expiration or termination of any contractual agreement between you and/or your entity or organization and TRC; (ii) upon written notice to you effective immediately, if you commit a material breach of this Agreement; and (iii) at any time upon thirty (30) days’ prior notice to you.
10.2.2 If this Agreement is terminated in whole or in part due to your breach: (a) TRC will disable access to any terminated Service; (b) you agree to destroy any and all TRC Content, and all other files, information, data or software derived from any terminated Service in your possession or control, and certify destruction upon request; (c) you forfeit all prepaid fees; and (d) TRC reserves the right to pursue all available legal remedies. The parties intend that the parties’ rights, obligations and responsibilities set forth in Sections 1, 2.3, 2.4, 6, 9, 10.2.2, 11, 13, 14, 16.2, 20, 21 and 22 shall survive the termination of this Agreement.
11. Indemnity. You agree to defend, indemnify and hold harmless TRC, its licensors, affiliates, successors and assigns, and each of their respective officers, directors, agents, and employees (the “TRC Indemnitees”), for, from and against any and all claims, demands, loss, damage, liability, or expense (including, but not limited to, attorneys’ fees at trial, on appeal, and on any petition for review), arising out of or related to the breach of this Agreement by you, or otherwise arising from the use of the Service and/or the TRC Content by you, including without limitation, any actual or threatened suit, demand or claim made against the TRC Indemnitees arising out of or relating to your conduct, your violation of this Agreement, your violation of the rights of any third party, or the TRC Content.
12. Audits. TRC may retain administrative access to Your Account through the Platform for purposes of auditing your compliance with the terms of this Agreement, including without limitation, your usage of the Services and/or the TRC Content. TRC and/or its designees shall further have the right, upon reasonable prior notice to you, to audit and inspect your systems, devices, and/or records for purposes of determining your compliance with this Agreement, which audit right may include the right to access and inspect your facilities and copy any documents or records in connection with such audit. You agree to cooperate with TRC in connection with any such audit. In the event any such audit discloses use of the Service in excess of your Usage Rights or any other material breach of this Agreement, you acknowledge and agree that TRC shall have the rights set forth in Section 2.1.2 above, and you further agree to reimburse TRC for the costs and expenses incurred by TRC in connection with such audit.
13. Disclaimer. EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SERVICE AND THE TRC CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE.” TRC AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICE AND/OR THE TRC CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE SERVICE, THE TRC CONTENT OR ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICE, EVEN IF ASSISTED BY TRC. TRC SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY TRC WITH THE SERVICE AND PROVIDES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE SERVICE. WHILE TRC HAS USED COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE TRC CONTENT IS MATERIALLY UP TO DATE AND RELIABLE, TRC DOES NOT DIRECTLY OR INDIRECTLY PRACTICE MEDICINE OR DISPENSE MEDICAL ADVICE OR SERVICES AND THEREFORE ASSUMES NO LIABILITY FOR THE TRC CONTENT. YOU AGREE TO EXERCISE YOUR OWN INDEPENDENT SKILL, EXPERIENCE, KNOWLEDGE AND PROFESSIONAL MEDICAL JUDGMENT IN MAKING CLINICAL, TREATMENT AND/OR PRESCRIPTION DECISIONS, OR TO OTHERWISE CONSULT OR SEEK THE ADVICE, OPINION OR DIAGNOSIS OF A TRAINED MEDICAL PROFESSIONAL. THE SOLE RISK OF USING THE SERVICE AND/OR THE TRC CONTENT IS SOLELY WITH YOU.
14. Limitation of Liability. THE MAXIMUM LIABILITY OF TRC AND/OR ITS LICENSORS ARISING OUT OF OR RELATING TO THE SERVICE, THE TRC CONTENT AND/OR THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY TRC FROM YOU AND/OR YOUR ENTITY OR ORGANIZATION, AS APPLICABLE, IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED. IN NO EVENT SHALL TRC AND/OR ITS LICENSORS BE LIABLE TO YOU FOR: (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; (ii) ANY CLAIM RELATED TO YOUR CONTENT OR ANY OTHER USER GENERATED CONTENT OR MATERIALS, OR ANY THIRD PARTY MATERIALS; OR (iii) ANY CLAIM RELATED TO THE UNAUTHORIZED ACCESS TO AND/OR USE OF THE SERVICE AND/OR THE TRC CONTENT.
16. Remedial Action.
16.1 Without limiting the above, TRC may suspend delivery of the Service if it reasonably determines that you are not in compliance with this Agreement, including without limitation, by not making full and timely payment to TRC and/or exceeding your Usage Rights. If delivery is suspended, TRC will restore your access as soon as you come back into compliance with the terms of this Agreement. TRC’s suspension of the Service is without prejudice to any right, claim or remedy of TRC under this Agreement, including without limitation, TRC’s rights under Section 10 above.
16.2 You hereby acknowledge and agree that, in the event of any breach or threatened breach of your obligations or responsibilities under Section 2 above or any other provision affecting TRC and/or its licensors intellectual property rights in the Service and/or the TRC Content, TRC may suffer irreparable injury for which damages at law may not be an adequate remedy. Accordingly, without prejudice to any other rights and remedies otherwise available to TRC at law or equity, TRC shall be entitled to seek equitable relief, including injunctive relief and specific performance, for any such breach or threatened breach of this Agreement by you.
17. Export Regulation. The Service and/or the TRC Content may be subject to United States’ export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Service and/or the TRC Content to, or make the Service and/or the TRC Content accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Service and/or the TRC Content available outside the United States.
18. Government Rights. The Service may constitute commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the United States Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other end users under license, in accordance with: (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors; or (ii) 48 C.F.R. §12.212, with respect to all other United States Government licensees and their contractors.
19. Amendments. We may update or modify this Agreement and any policies affecting the Service immediately upon notice to you posted to the Service or distributed via electronic mail. You will be required to click “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” upon any subsequent use of the Service following such an update or modification. Your clicking “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” and your subsequent use of the Service shall be conclusively deemed an acceptance of all such updates or modifications. If you do not wish to be bound by such update or modification and so notify us prior to your clicking “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT,” and we will refund any unearned fees that you have paid. Any updates or modifications to this Agreement shall be deemed to supersede and/or replace the Agreement in its prior form, to the extent set forth in such updates or modifications.
20. Governing Law; Disputes. This Agreement is governed by the laws of the United States and the State of California, without reference to conflict of laws principles. Except where prohibited, you agree that all disputes, claims and legal proceedings in any way arising out of or relating to the Service, the TRC Content, or this Agreement shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in San Joaquin County, California. You waive all defenses of lack of personal jurisdiction, improper venue, “forum non conveniens” and the like with respect to such courts. TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
21. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to its subject matter and supersedes all previous and contemporaneous agreements between the parties with respect to the same subject matter hereof and may not, except as otherwise set forth in this Agreement, be amended or modified except in a writing signed by the parties. The terms of your purchase orders, if any, are for your convenience and do not supersede any term or condition of this Agreement.
22. General. The parties agree as follows: (i) no waiver will be binding on a party unless it is in writing and signed by the party making the waiver and a party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision; (ii) the parties will have all remedies available to them at law or in equity; (iii) if any term or provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the term or provision in any other respect and of the remaining provisions of this Agreement will not be impaired; and (iv) both parties have full power and authority to enter into and perform this Agreement.
Standard Contractual Clauses (Processors)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
You, the end-user licensed to use the product (the data exporter)
Therapeutic Research Center, LLC
Address: 3120 West March Lane, Stockton California 95219 (the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- ‘the data exporter’ means the controller who transfers the personal data;
- ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
- that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- i. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
- any accidental or unauthorised access; and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the sub-processor will be carried out in accordance with Clause 11;
- to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation of jurisdiction
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Variation of the contract
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely Delaware, USA.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Obligation after the termination of personal data-processing services
- The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
to the Standard Contractual Clauses
This Appendix forms part of the Clauses.
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.
The data exporter is Clinicians and other users of medication learning materials, training and education.
The data importer is a medication learning service provider that provides clinical relevant educational material, training, and continuing education resource services.
The personal data transferred concern the following categories of data subjects: Individuals using licensed software
Categories of data
The personal data transferred concern the following categories of data:
User information. This means Personal Data collected about users of the Services, and includes without limitation contact information such as name, e-mail address, address, and phone number, information that you might provide to us in an online form, information you provide when you contact us by e-mail or telephone, payment information, login credentials, details of how you use our Services, your posts on our Forum pages, responses you may provide to surveys and any other information you provide to us to purchase our Services, to receive marketing from us and for us to deliver our Services.
Financial Information. Should you decide to purchase any services that we offer, we will need to collect financial information necessary to conduct such a transaction.
Business account information. This means business-related Personal Data such as name, title, job function, business name, business address, business e-mail address, and business phone number that we collect about people we serve or work with, including actual and prospective customers, contractors, vendors and other entities interested in TRC or our products and services as well as information collected for corporate payments.
Customer proprietary information. This means Personal Data that is owned by our customers and provided to or collected by us to provide our Services. TRC respects the privacy of all customer proprietary information and views it as the customer’s property. We do not control what customer information we may receive, nor what steps you have taken to ensure that the data was collected in compliance with applicable data privacy laws and regulations.
Information we may collect automatically. When you use our Services, some information is automatically collected. For example, when you visit our website, your computer's operating system, Internet Protocol (IP) address, access times, browser type, and language and the website you visited before our site are logged automatically. We also collect information about your usage of and activity with our Services. Additionally, when you access our Services through a mobile device, we may automatically collect data about your device, such as geolocation (at the city level), device ID, type of device, operating system version and how you use our application, including pages you view. We may offer cookies to you. If you do not wish to receive them, then you should ensure that your web browser is set up to not accept our cookies as described below. Otherwise, by continuing to use this site, you are accepting our use of these cookies that make advertising and communications more relevant to you and your interests and further help us to improve our Services.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data: Not Applicable
to the Standard Contractual Clauses
The parties agree that data importer shall maintain administrative, physical and electronic controls for the security, confidentiality and integrity of Personal Data processed under this Agreement as described in TRC’s Security and Privacy Documentation applicable to the Software and related Services, which shall be made accessible upon the reasonable request of data exporter.