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THIS SERVICE AGREEMENT ("AGREEMENT" OR "SERVICE AGREEMENT") GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES PROVIDED BY TRIALING HEALTH, S.L. ("TRIALING") AND SETS FORTH THE LEGAL TERMS AND CONDITIONS THAT WILL APPLY TO YOUR USE OF THE SERVICES AND THE SITES (AS DEFINED BELOW).
BY USING THE SUBSCRIPTION SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.
1. SERVICE
1.1. License
TRIALING grants to the CUSTOMER, a limited, non-exclusive, non-transferable license (without the right to sublicense), for the term of the Service specified in the Order Form for (a) access to and use of the TRIALING CTMS Platform as described in the Order Form, (b) downloading, installation and use of the CUSTOMER's libraries in connection with the CUSTOMER's use of the Service. The Service shall be made available to the CUSTOMER only as hosted by or on behalf of TRIALING, and nothing in the Agreement shall be construed as granting the CUSTOMER any right to receive any copy of the Service or software (other than the Customer Libraries). The CUSTOMER's access to and use of the Service shall be subject to compliance with the conditions set forth in the Order Form and Documentation (such as, for example, any requirements regarding data format, number of Users or prohibited uses).
1.2. Service access and availability
(a) CUSTOMER's Systems. CUSTOMER shall be responsible for (i) the equipment, subscriptions and credentials necessary for TRIALING to receive CUSTOMER Data and (ii) the servers, devices, storage, programs (other than the CUSTOMER Libraries), databases, networks and communications equipment and ancillary services necessary to establish connection to, access or otherwise use the Services on its premises (collectively, "CUSTOMER Systems"). CUSTOMER warrants that all CUSTOMER Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
(b) Access to the Service. As part of the implementation process, the CUSTOMER will create a main user and password that will be used to configure the CUSTOMER's account. The CUSTOMER may use the primary user and password to create sub-accounts for its Users (each with a corresponding login ID and password). The CUSTOMER shall be responsible for any acts or omissions of any person accessing the Service using the passwords or access processes provided or created by the CUSTOMER. TRIALING reserves the right to refuse registration, or to cancel login ID's that violate the terms and conditions set forth in this Agreement. Upon becoming aware thereof, the CUSTOMER shall immediately notify TRIALING of any unauthorized use of the CUSTOMER's account or any other breach or security problem. From time to time, TRIALING personnel may access the Service to the CUSTOMER's account for the purpose of maintaining and improving the Service, including providing technical assistance to the CUSTOMER in connection with technical or billing issues. The CUSTOMER declares its knowledge and, if necessary, its consent to such access. Such access will be carried out using a TRIALING user account and in no case accessing the individual accounts of the users or under the identity of the CUSTOMER's Users.
Service Availability
TRIALING will use commercially reasonable efforts to maintain the availability of the Service to send and receive data, subject to outages resulting from maintenance, repairs and upgrades. To the extent possible, TRIALING will attempt to notify the CUSTOMER, electronically through the Service, of any scheduled Service outages. Notwithstanding the foregoing, TRIALING shall not be liable for any failures in the Service or any other problems relating to (a) CUSTOMER Data or CUSTOMER Systems, or (b) outages in telecommunications networks or Internet access providers, networks or servers, or other equipment or services outside TRIALING's facilities or control.
1.4. Service Support
TRIALING will provide the CUSTOMER with e-mail support for the use of the Service during TRIALING's working hours. The CLIENT agrees that TRIALING will not be responsible for providing support in relation to problems, errors or queries related to the CLIENT's Systems.
1.5. Professional Services
From time to time the CLIENT may request and TRIALING may agree to provide customization, consulting, training or other professional services as may be mutually agreed between the Parties ("Professional Services"). The terms and conditions of any such arrangements for the provision of Professional Services shall be set forth in a specific engagement document to be agreed upon by the Parties with specific reference to this Agreement ("Engagement Document"), each subject to the provisions of this Agreement. Unless otherwise agreed between the Parties and set forth in the relevant Engagement Document, all intellectual property, and rights arising therefrom, created by TRIALING in the course of providing the Professional Services shall vest exclusively in TRIALING.
2. DEMOGRATUITA
In the event that TRIALING has offered the CLIENT a free demo, TRIALING will offer one or more Services on a free trial basis, which will last until (a) the end of the free trial period for which the CLIENT has registered and in respect of the applicable Services, or (b) the start date of any subscription to the Services specified by the CLIENT, or (c) termination by TRIALING at its sole discretion. The free trial may be subject to additional terms and conditions as detailed on the website from time to time. Such additional terms and conditions shall be deemed incorporated by reference into this Agreement and shall be deemed legally binding.
3. LICENSE RESTRICTIONS AND CUSTOMER OBLIGATIONS
License Restrictions
The CUSTOMER may not directly or indirectly: (i)use the Service or any of the Properties or Confidential Information to create a service, software or documentation that performs substantially the same functions as the Service; (ii) disassemble, decompile, reverse engineer the software or attempt by other means to discover the source code, algorithms or trade secrets in connection with the Services, except to the extent permitted by applicable law;(iii) encumber, sublicense, transfer, distribute, rent, lease, share or use the TRIALING Properties in connection with other service contracts or for the benefit of any third party; (iv) copy, reproduce, translate, adapt, combine, create derivative works from or otherwise modify any TRIALING Property; or (v) use or permit the use of the Services to store or transfer any CUSTOMER Data that is controlled for export purposes under the Export Control Laws or any other relevant jurisdiction for these purposes.
3.2. Unauthorized Uses of the Service
The CLIENT may not directly or indirectly: (i)exceed the active number of Active Monthly Users; (ii) use single values or a continuous set of values as event attribute inputs, (iii) interfere or attempt to interfere with the proper functioning of the Service or any activity carried out on the Service; (iv) circumvent any privacy options or measures TRIALING may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (v) use email lists, any form of autoresponder or "spam" on the Service; or (vi) use manual or automated software, devices or other processes to track any page of the Sites.
3.3. Personal data protection
The CUSTOMER shall not provide any personally identifiable information relating to individual persons ("PII") in connection with its use of the Service, unless TRIALING expressly agrees to receive such information and, in such case, only to the extent necessary in connection with the CUSTOMER's use of the Service. In such a case, the parties shall sign all necessary documents in accordance with applicable law. The CUSTOMER shall be responsible for any personally identifiable information provided to TRIALING. The CUSTOMER shall have in place a privacy policy regarding its use of PII and shall comply with all applicable regulations regarding the collection and use of PII and CUSTOMER Data.
4. ORDER, PRICE AND PAYMENT
4.1. Order Form
The parties may agree on one or more Order Forms under this Agreement. Each Order Form shall detail the Service to be rendered, the Service's prior Service, the period during which the Service is to be rendered, the billing terms, and any other terms agreed upon by the parties. TRIALING shall only be responsible for providing the Service identified in an Order Form for the period specified in that Order Form.
4.2. Price of the Service
The CUSTOMER shall pay the price corresponding to the use of the Service ("Service Price") in the amount and in accordance with the billing schedule set forth in the Order Form. Unless otherwise stated in the Order Form. Unless otherwise provided in the Order Form, TRIALING will invoice the Service Price on an annual basis.
4.3. Price of Professional Services
The CUSTOMER shall pay the price of the Professional Services according to the rates and billing schedule established in the Order Form.
4.4. Terms of payment
Payments are made in Euros to TRIALING's account, in full, without set-off, counterclaim or deduction on the terms and conditions set out in the Order Form. In the event of non-payment, TRIALING may demand default interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. The CLIENT agrees to reimburse TRIALING for all expenses (including attorneys' fees) incurred by TRIALING in the collection of overdue payments. TRIALING may also, at its sole discretion, suspend the CLIENT's access to the Service or terminate this Agreement in the event that the CLIENT is not current in the payment of amounts due to TRIALING.
Taxes
The CUSTOMER shall be responsible for paying the applicable Taxes and shall pay TRIALING for the Services rendered without any reduction in the corresponding amounts. In the event that TRIALING is obliged to collect or pay Taxes in accordance with the applicable regulations, these will be invoiced to the CUSTOMER, unless the CUSTOMER provides TRIALING with a valid tax exemption certificate issued by the relevant tax authority.
5. CONFIDENTIALITY
5.1. Scope
"Confidential Information" means all technical, legal, economic, commercial, organizational or any other type of information pertaining to any of the Parties that by its nature could be considered confidential, regardless of the medium in which it is contained or the means used for its disclosure, as well as any analysis, compilation, study, summary or extract that any of the Parties or both of them, jointly, have prepared from the information/documentation initially disclosed by any of them. In particular, (a) the Service, TRIALING Properties and pricing information shall be deemed to be TRIALING Confidential Information, and (b) CUSTOMER Data (including DCP) shall be deemed to be CUSTOMER Confidential Information for the purposes of this Section 5. Confidential Information expressly excludes any information (other than DCP) to the extent that the recipient can demonstrate that such information (a) was already known to it prior to its receipt from the disclosing party without restriction, (b) was provided to it lawfully and without restriction by a third party who has not breached any obligation to the disclosing party, (c) is available to the general public without breach of this Agreement, or (d) has been independently developed by the recipient without reference to or use of the disclosing party's Confidential Information.
Confidentiality
Both Parties undertake with respect to the Confidential Information to (i) keep it secret, including this duty, any disclosure of the information, not only to third parties but also to any person not authorized under this Agreement; (ii) take all necessary measures to prevent such information from being known by third parties not authorized by the holder thereof. In this sense, each of the Parties shall protect the Confidential Information of the other party using the same means of protection that it uses to protect its own Confidential Information and never means other than those reasonably required in view of the nature of the information and the state of the art; (iii) not to use the Confidential Information, directly or indirectly, for any purpose unrelated to the provision of the Services; (iv) To restrict access to the Confidential Information only to those employees, own or subcontracted, who must know it due to the execution of the Contract; (v) Not to reproduce or copy the Confidential Information unless it is essential to comply with the provisions of this Contract or the prior written consent of the party to which it belongs is obtained.
5.3. Mandatory Disclosure
Nothing in this Agreement shall prevent a Party from disclosing this Agreement or any Confidential Information of the other Partyas required pursuant to a court order or any legal, regulatory or similar requirement ; provided that, prior to such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosingparty in writing of such disclosurerequirement and(b) cooperate with the disclosingparty toprotect or minimize such disclosure orobtain a protective order.
6. PROPERTY RIGHTS
6.1. Results and CLIENT Data
The CUSTOMER shall own all right, title, interest (including all intellectual property and other proprietary rights) relating to the Results (including any customer shows recorded through theCTMS TRIALING Platform), the CUSTOMER Data and CUSTOMER Systems.
The CUSTOMER grants TRIALING a non-exclusive, free and licensed right to access, use, copy, process and store the CUSTOMER Data for the sole purpose of providing the Service. The CUSTOMER is aware and accepts that the Service depends on the availability of the CUSTOMER Data. The CUSTOMER shall be solely responsible for the CUSTOMER Data collected from Users during the CUSTOMER's use of the Services, including the accuracy and completeness of such information. Unless otherwise stated in the Order Form, TRIALING shall have no obligation to store CUSTOMER Data or Results. Except for the limited rights and licenses granted herein, no other licenses are granted, no other use is permitted and Customer shall retain all right, title and interest (including all intellectual property and proprietary rights therein) in and to the Results, CUSTOMER Data and CUSTOMER Systems.
Furthermore, the CUSTOMER grants TRIALING a non-exclusive, royalty-free right and license to access, use, copy, process and store the Results, including the CUSTOMER's shows recorded through the CTMS TRIALING Platform, which may be stored, edited and distributed through the CTMS TRIALING Platform and TRIALING's social networks, unless otherwise stated in the Order Form.
6.2. Feedback of the Service
The CLIENT may, at its sole discretion, propose changes, modifications or improvements to the Service through info@trialing.org ("Feedback"). Any Feedback generated will be the exclusive property of TRIALING (including any intellectual property rights that may arise) and will be considered as Confidential Information of TRIALING. The CLIENT undertakes to carry out all necessary actions to formalize such ownership.
6.3. TRIALING property
The CLIENT declares to know and accepts that the TRIALINGCTMS Platform, including the TRIALING Software and any other software, hardware and associated documentation has been created by TRIALING, who shall retain all intellectual, industrial or any other property rights over the same, which may not be subject to further modification, copying, alteration, reproduction, adaptation or translation by the CLIENT.
The structure, characteristics, codes, working methods, information systems, development tools, know-how, methodologies, processes, technologies or algorithms of the CTMS TRIALING Platform are property of TRIALING, or of its suppliers, having been, in the latter case, licensed or assigned by them, and are protected by Spanish or international intellectual and industrial property regulations, and may not be subject to further modification, copying, alteration, reproduction, adaptation or translation by the CLIENT.
Access by the CUSTOMER to theCTMS TRIALING Platform does not imply, in any case, the transfer of ownership or the granting of a right of use in favor of the CUSTOMER other than that established in this Agreement or in the Purchase Orders.
Consequently, any use by the CLIENT of the CTMS TRIALING Platform or the Associated Materials without the authorization of TRIALING is strictly prohibited, including its exploitation, reproduction, diffusion, transformation, distribution, transmission by any means, subsequent publication, exhibition, public communication or total or partial representation, which, if they occur, shall constitute infringements of the intellectual or industrial property rights of TRIALING, sanctioned by the legislation in force.
6.4. Aggregate data
CUSTOMER agrees that TRIALING is free to (i) collect, use and create derivative works from data related to the use of the Service and performance derived from the Results; (ii) aggregate such data with other data to create compilations and analyses of such data ("Aggregate Data"); and (iii) use, copy, modify, create derivative works from, publish and share such Aggregate Data in a manner that does not directly or indirectly identify CUSTOMERS or any individual person. TRIALING shall own all right, title and interest in and to the Aggregate Data and any derivative works. In addition, TRIALING shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to the Results or acquired during the provision of the Service (including, without limitation, those it may have acquired providing the same or similar services for another client).
7. WARRANTIES AND LIMITATIONS
7.1. CUSTOMER Data
With respect to CUSTOMER Data and DCP, CUSTOMER represents and warrants that it owns all right, title and interest, or possesses such license rights, as may be necessary to enable the use contemplated by this Agreement.
7.2. Service
TRIALING represents and warrants to the CUSTOMER that the Service will be provided in a professional manner in accordance with the terms of this Agreement and the Documentation. Any warranty claim in relation to this clause 7.2 must be made in writing within thirty (30) days of the performance of the Services that is the subject of the claim. The responsibility of TRIALING will be in any case limited to correct or re-perform the Service that has been provided in non-conformity, being this the only right that the CUSTOMER may claim.
7.3. Resignations
EXCEPT AS SPECIFICALLY SET FORTH IN THIS CLAUSE 7, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY (FOR ITSELF, ITS AFFILIATES AND ITS SUPPLIERS) HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OF SERVICES, OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, TRIALING MAKES NO WARRANTY THAT THE SERVICE WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT IT WILL OPERATE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE.
8. RESPONSIBILITY
8.1. Indemnification of TRIALING in case of default
Except as provided below, TRIALING agrees to (a) defend CUSTOMER against any claim, demand, action, proceeding or suit (each, a "Claim") by a third party that CUSTOMER's authorized use of the Service infringes any patent or copyright or misappropriates any trade secret of such third party and (b) indemnify CUSTOMER for any settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees,"Loss(s)") awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising from such Claim; provided that (i) CUSTOMER notifies TRIALING in writing and provides TRIALING with reasonable cooperation, information and assistance in connection therewith, and (ii) TRIALING has sole control and authority to defend, settle or compromise such Claim. If the Service becomes or, in TRIALING's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, TRIALING may, at its option, either (1) obtain for CUSTOMER the right to continue using the Service or (2) replace or modify the Service so that it becomes non-infringing without substantially compromising its core functions. If (1) and (2) are not reasonably available to TRIALING, TRIALING may terminate this Agreement upon written notice to CUSTOMER and refund to CUSTOMER any unused prepaid Service fees, prorated for the remainder of the prepaid period. TRIALING shall have no liability or obligation to the CUSTOMER under this Agreement with respect to any Claim or Loss to the extent based on (a) any unauthorized use of the Service, (b) any modification or combination of the Service with data, software, hardware or systems not provided by TRIALING, (c) any part of the Service that implements the specific requirements of the CUSTOMER, (d) the continuation of allegedly infringing activity by CUSTOMER after CUSTOMER has been notified to cease use as provided herein, or (e) CUSTOMER's continued use of any version of the TRIALING Properties after modifications have been provided to CUSTOMER that would have prevented the alleged infringement. The foregoing sets forth the sole and exclusive liability of TRIALING, and the sole and exclusive remedy of CUSTOMER, with respect to any actual or alleged infringement of intellectual property rights by the Service or any part thereof or its use or operation.
8.2. Indemnity by the CUSTOMER
The CUSTOMER agrees to (i) defend TRIALING against any claim or demand from third parties arising out of or as a consequence of (a) the CUSTOMER's breach of its obligations under clause 3.3 above, (b) the CUSTOMER's breach of the representations and warranties set forth in clause 7.1 above, or (c) any violation on third party rights (including any user of the CUSTOMER); and (ii) indemnify TRIALING in relation to any losses declared by a competent court or judge or agreed in an out-of-court settlement in relation to such lawsuit or claim; to the extent that (i) TRIALING promptly notifies the CUSTOMER in writing and provides reasonable cooperation, information and assistance in connection therewith, and (ii) the CUSTOMER has direct control to defend itself and reach any settlements in connection with such suit or claim.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE SUFFERED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONSEQUENTLY, IT SHALL BE THE OBLIGATION OF THE CUSTOMER AND NOT OF TRIALING, TO MAKE BACKUP COPIES WITH SUFFICIENT PERIODICITY, AS WELL AS TO INSTALL SECURITY MEASURES AND TO OBTAIN LICENSES AND IMPLEMENT ANTIVIRUS PROGRAMS, FIREWALL, OR ANY OTHER THAT MAY BE NECESSARY TO MAINTAIN THE INTEGRITY, CONFIDENTIALITY AND SECURITY OF THE CUSTOMER'S DATA AND SYSTEMS. TRIALING WILL BE LIABLE FOR THE DAMAGES CAUSED BY FAULT OR NEGLIGENCE DERIVED FROM ITS ACTIONS, NOT EXCEEDING, IN ANY CASE, THE COMPENSATION CORRESPONDING TO THE AMOUNT CORRESPONDING TO THE PRICE OF THE LICENSE EFFECTIVELY PAID BY THE CLIENT TO TRIALING AT THE MOMENT IN WHICH THE CAUSE THAT MOTIVATED THE COMPENSATION TOOK PLACE. TRIALING SHALL NOT BE LIABLE TO THE CUSTOMER, AMONG OTHER CASES, FOR THE FOLLOWING (I) IN CASE THE SOFTWARE IS NOT USED ACCORDING TO THE DOCUMENTATION PROVIDED TO THE CUSTOMER BY TRIALING; (II) IN CASE THE FAILURE IS CAUSED BY MANIPULATIONS OF THE SOFTWARE NOT PREVIOUSLY AUTHORIZED BY TRIALING OR BY THIRD PARTY SOFTWARE.
10. DEADLINE AND RESOLUTION
10.1. Term of the Contract
The Contract shall commence on the Effective Date and shall continue in force until the later of (i) thirty (30) days' written notice of termination by one Party to the other Party, provided that no Order Form is in effect, or (ii) in the event of the existence of one or more Order Forms in effect, upon the expiration of the last expiration point of such existing Order Form(s), whichever is later.
10.2. Order Form Deadline
The initial term shall be deemed to be the term set forth in the Order Form ("Initial Term") and shall be automatically renewed for additional periods of one (1) additional year ("Renewal Term") at the end of the Initial Term and each Renewal Term (the Initial Term and Renewal Term being collectively referred to as the "Term"), unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the Term.Order Orders shall not be subject to termination except as set forth in Section 9.3 below.
10.3. Order Form Resolution
Purchase Orders may be terminated by either Party if the other Party is in material breach of the Contract or the Purchase Order in question and such breach is not cured within thirty (30) days of written notice thereof by the other Party.
10.4. Effects of Termination
In the event of resolution or termination of this Contract (including the Purchase Orders): (i) any rights granted by either party to the other shall immediately cease; (ii) TRIALING shall allow the CUSTOMER to access and export the CUSTOMER Data, with TRIALING's then-current rates for the applicable Services in question being applicable; (iii) after a period of ninety (90) days TRIALING will delete the CUSTOMER Data by removing the pointers to the CUSTOMER Data from TRIALING's active and replicated servers; and (iv) each Party will, at the request of the other, use reasonable efforts to immediately return or destroy any Confidential Information of the other Party in its possession.
11. GENERAL CLAUSES
11.1. Full Agreement
This Contract and its Annexes constitute the entire agreement between the Parties in relation to the subject matter hereof, and supersede and annul all negotiations, commitments, agreements and communications, whether verbal or written, that may have been reached in this respect prior to the signing of this document; likewise excluding, by mutual agreement, the application of any other terms and conditions. If any of the clauses of this Contract should be null, invalid or should cease to have effect between the Parties, whatever the cause may be, the remaining clauses of this Contract shall continue to be valid and enforceable against the Parties, except in the event that the benefits or considerations which are the object of the null, invalid or ineffective clause should have been determinant of the offer or of its acceptance, in such a way that without such benefits or considerations one or both of the Parties would not have entered into this Contract.
11.2. Applicable law and dispute resolution
Any controversy arising from the interpretation or execution of the present Contract or any of its eventual modifications, as well as any breach thereof, shall be interpreted in accordance with Spanish law.
To resolve any dispute related to the provisions of this Contract or in execution thereof, TRIALING and the CLIENT expressly submit to the Courts and Tribunals of Barcelona, renouncing any other jurisdiction that may correspond to them. The language to be used shall be Spanish.
11.3. Submission to Laws
Each Party shall submit to any applicable laws and regulations in connection with the performance of its obligations and the exercise of its rights as provided in this Agreement.
11.4. Fuerzamayor
The Parties shall not be liable for breach of the obligations set forth in this Agreement to the extent that such breach is due to causes reasonably beyond the control of the breaching Party, such as, without limitation, fires, floods, strikes, labor disputes or other social disorders, shortage or unavailability of fuel or electric power, unavailability or malfunction of communications networks, accidents, wars (declared or undeclared), trade embargoes, blockades, riots or insurrections.
11.5. Advertising
The CUSTOMER agrees that TRIALING may include the CUSTOMER's name or brand in a list of TRIALING customers, online or in promotional materials. In addition, the CLIENT also agrees that TRIALING may verbally refer to the CLIENT as a CLIENT of TRIALING products or services, as provided in this AGREEMENT.
11.6. Notifications
Any notice or communication of termination or breach of this Agreement shall be made in writing addressed to the other Party at the address specified in the Order Form. Notices shall be deemed to have been given at the time of receipt as evidenced by a physical or electronic acknowledgement of receipt (as applicable in each case).
11.7. Assignment
Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except in the case of an assignment in favor of any of its Group Companies, provided that: (i) the assignee agrees in writing to be bound by the terms of this Agreement; (ii) the assignor notifies such assignment to the other party; and (iii) in those cases where the assignor is the CLIENT, the assignee satisfactorily passes all credit controls required by TRIALING.
TRIALING may subcontract all or part of the performance of its obligations under this Agreement without the need to obtain the prior written consent of the CUSTOMER. TRIALING shall nevertheless remain fully liable for the performance thereof, in particular for any actions and/or omissions of its subcontractors in this respect, as if they were its own actions and/or omissions.
11.9. Subsistence
If any Clause of this Framework Agreement is declared, totally or partially, null or ineffective, such nullity or ineffectiveness shall only affect such provision or the part thereof that is null or ineffective, and the Contract shall subsist in all other respects, and such provision, or the part thereof that is affected, shall be deemed not to have been made.
11.10. Third parties
This Agreement does not confer any rights for the benefit of third parties, except as otherwise expressly provided herein.
12. DEFINITIONS
12.1. "CUSTOMER "means the customer.
12.2. "CUSTOMER Data " means any information, data or other content provided by the CUSTOMER in connection with the use of the Service, including, without limitation, any data and information transmitted to the Service through the CUSTOMER Libraries.
12.3. "CUSTOMER Libraries " means the CUSTOMER libraries provided by TRIALING and installed in the CUSTOMER's applications for the purpose of collecting CUSTOMER Data and sending such data to the TRIALING CTMS Platform.
12.4. "Documentation " means the manuals or implementation guides; help information and other User documentation related to the Service that is provided by TRIALING to the CUSTOMER in electronic or any other format.
12.5. "PlataformaCTMS TRIALING" is a platform that allows for the integral, flexible, personalized and transversal management of the entire life cycle of clinical trials.
12.6. "TRIALING Property" means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technology and information acquired, created, developed or licensed by TRIALING, prior to or outside the scope of this Agreement and any enhancements, modifications, extensions or other derivative works thereof and all intellectual property rights therein, including without limitation the Service, the CLIENT Libraries, Documentation, Report Templates and Aggregate Data.Ownership of the TRIALING excludes the CLIENT Data and Results.
12.7. "Monthly Active Users " means each of the individual installations of the CUSTOMER's application that can transmit CUSTOMER Data during the contract period.
12.8. "Order Form " means an order form with reference to this Contract that has been mutually agreed and signed between the Parties.
12.9. "Results " means the work resulting from the Services provided by TRIALING to the CLIENT through the Service, including any showings recorded, based as necessary on the CLIENT's Data. Results expressly exclude any TRIALING Property.
12.10. "Service " means the TRIALING service provided to the CUSTOMER as identified in the Order Form.
12.11. "Sites " means websites or other sites managed by TRIALING that are accessible by the CUSTOMER under the provisions of this Agreement.
"User" means a natural person authorized by the CUSTOMER to use the Service, in favor of whom the CUSTOMER has purchased a subscription (or in the case of Services provided by TRIALING free of charge, in favor of whom the Service is provided), and in relation to whom the CUSTOMER (or, if applicable, TRIALING at the request of the CUSTOMER) has provided a user and password (in relation to Services requiring authentication). By way of example, Users may include employees, consultants, suppliers or agents of the CUSTOMER, as well as third parties with whom the CUSTOMER has business relations.
