Trial Service Terms And Conditions
Last Updated: September 20, 2022
THESE TRIAL SERVICE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN ACCESS TO AND USE OF A LIMITED TRIAL TO THE SERVICE (AS DEFINED BELOW) PROVIDED BY TAG.BIO, INC. (“PROVIDER”) TO YOU (“EVALUATOR”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. PROVIDER AND EVALUATOR ARE SOMETIMES REFERRED TO IN THIS AGREEMENT COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.”
1. EVALUATION. Subject to the terms and conditions of this Agreement, Provider will grant Evaluator a non-exclusive, non-transferable (except as permitted under Section 11) license during the Evaluation Period (as defined below) for Users (as defined below) to access and use Provider’s proprietary, data analytics platform (“Service”) solely for Evaluator’s internal evaluation and testing purposes. Evaluator and its Users must use the Service in compliance with all applicable laws and regulations and related documentation. Evaluator hereby acknowledges and agrees that it will be solely responsible for obtaining and maintaining any equipment, software, internet connectivity, networking infrastructure, ancillary services, and other tangible embodiments of technology not provided by Provider that are needed to connect to, access, or otherwise use the Service. Provider is under no obligation to provide support or maintenance services for the Service to Evaluator or its Users. To the extent Evaluator or its Users experience any issues relating to the Service, please contact Provider at support[at]tag.bio
2. USERS. To access the Service, each employee, contractor, or agent of Evaluator that is authorized by Evaluator to access and use the Service under the rights granted to Evaluator pursuant to Section 1 (“Users”) will be required to register for an account on the Service. When registering for an account, Users will be required to provide Provider with certain registration information (including, the Evaluator’s and each User’s name, email address, account password, and other contact information). Evaluator acknowledges and agrees that such registration information provided to Provider must be accurate, complete, and not misleading, and that Evaluator will, and will require that its Users, keep such information accurate and up to date at all times. Each account created by a User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity. Each User is solely responsible for maintaining the confidentiality of its account and password, and Evaluator accepts responsibility for all activities that occur under its Users’ accounts. Evaluator will immediately notify Provider upon becoming aware, or having a reasonable basis to believe, that its Users’ accounts are no longer secure. Any breach of this Agreement by any User is deemed a breach by Evaluator.
3. MODIFICATIONS. Provider reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to Evaluator. Provider will have no liability for any change to the Service, or any suspension or termination of Evaluator’s or its Users’ access to or use of the Service. Evaluator is hereby advised to retain copies of any Customer Data so that Evaluator’s has permanent copies of Customer Data in the event the Service is discontinued, terminated, suspended, or modified in such a way that Evaluator’s or its Users’ lose access to Customer Data.
4. RESTRICTIONS. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Evaluator will not, and will not permit or authorize third parties or its Users to: (a) rent, lease, or otherwise permit third parties to use or access the Service; (b) use the Service to provide services to third parties (e.g., as a service bureau); (c) use the Service for any benchmarking activity or in connection with the development of any competitive product; (d) circumvent or disable any security or other technological features or measures of the Service; (e) modify, copy, or create derivative works of the Service (or any element thereof); (f) remove, alter, or obscure any proprietary notices from the Service; or (g) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Service. Evaluator will, and will require that its Users, use reasonable efforts to prevent any unauthorized access to and use of the Service and will immediately notify Provider in writing of any unauthorized access or use that comes to Evaluator’s attention. If there is unauthorized access or use by anyone who obtained access to the Service directly or indirectly through Evaluator or its Users, Evaluator will take all steps reasonably necessary to terminate the unauthorized access and use. Evaluator will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized access to or use of the Service.
5. EVALUATION PERIOD; TERMINATION.
5.1. Evaluation Period. This Agreement will commence on the Effective Date and continue in effect for a period of thirty (30) days, unless earlier terminated in accordance with this Agreement (“Evaluation Period”).
5.2. Termination. Provider may, at its sole discretion, terminate this Agreement or suspend or terminate Evaluator’s or its Users’ access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to Evaluator arising from such termination. Evaluator may terminate this Agreement at any time for any reason by having each of its Users delete their accounts from the Service.
5.3. Effects of Termination. Upon the expiration or termination of this Agreement: (1) all licenses granted herein will immediately terminate (except as otherwise expressly set forth herein); (ii) Evaluator and its Users will discontinue all use of the Service; (iii) Provider may permanently delete any Customer Data with or without notice to Evaluator; and (iv) Sections 3 through 11 will survive any such termination or expiration of this Agreement.
6.1. Customer Data. As between Evaluator and Provider, Evaluator owns all right, title, and interest to Customer Data (as defined below). Evaluator hereby grants Provider the right to collect, use, store, disclose, transmit, and otherwise process Customer Data to provide the Service, during the Evaluation Period, and as otherwise provided for under this Agreement, including to collect, generate, and derive Usage Data (as defined below). Evaluator is solely responsible for retaining copies of any Customer Data since, upon any expiration or termination of this Agreement, Evaluator and its Users will lose access to any Customer Data submitted, uploaded, or transmitted to the Service. For purposes of this Agreement, “Customer Data” means any data, content, information or materials that Evaluator (including its Users) submits, uploads, or transmits to the Service.
6.2. Usage Data. Provider may collect, generate, and derive Usage Data for Provider’s business purposes, including to: (a) monitor the performance and stability of the Service; (b) prevent or address technical issues with the Service; (d) improve the Service and develop derivative and new products and services; and (e) generate analytics and benchmarking reports. Evaluator will not interfere with the collection of Usage Data. As between the Parties, Provider owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Service made based on the Usage Data. For purposes of this Agreement, “Usage Data” means any performance, analytical, or usage information relating to Evaluator’s and its Users’ use of the Service, in each case, which is generated, derived or otherwise collected by the Service and is in aggregated or de-identified form only.
6.3. Service. Provider owns all right, title, and interest, including all intellectual property rights, in and to the Service, including any improvements, modifications, and enhancements thereto. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to Evaluator.
6.4. Feedback. If Evaluator or any of its Users provides any feedback to Provider relating to the Service (including identifying potential errors and improvements) (“Feedback”), Evaluator hereby grants Provider an unrestricted, perpetual, irrevocable, non-exclusive, fully paid-up, royalty-free license to exploit Feedback in any manner and for any purpose, including to improve the Service and to create or improve other of Provider’s products and services. Engage will have no obligation to provide Evaluator or its Users with attribution for any such Feedback.
7. CONFIDENTIALITY; DATA. Evaluator will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement, (b) all non-public information disclosed by Provider to Evaluator under this Agreement, and (c) all Feedback, all Usage Data, and all other information obtained through evaluation of the Service.
8. THIRD PARTY PRODUCTS. If Evaluator elects to enable, access, or use of Third Party Products (as defined below), its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of such Third Party Products, and Provider does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third Party Products, including, without limitation, their content, the manner in which they handle Evaluator’s data, or any interaction between Evaluator and the provider of such Third Party Products. Provider is not liable for any damage or loss caused or alleged to be caused by or in connection with Evaluator’s enablement, access, or use of any such Third Party Products, or Evaluator’s reliance on the privacy practices, data security processes, or other policies relating to or used in connection with the Third Party Products. The providers of Third Party Products shall not be deemed sub-processors of personal information for any purpose. For purposes of this Agreement, “Third Party Products” means certain third party applications, systems, software, products, or services that are or may be used by Evaluator and are not supplied by Provider that are designed to interoperate with the Service.
9.1. No Warranties. THE SERVICE IS PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING ONLY, AND PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, ARE HEREBY DISCLAIMED NU PROVIDER INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY EVALUATOR OR ITS USERS FROM THE SERVICE OR FROM PROVIDER (INCLUDING THE ANALYSES (AS SUCH TERM IS DEFINED BELOW)) WILL CREATE ANY WARRANTY REGARDING PROVIDER OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. PROVIDER IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE. EVALUATOR UNDERSTANDS AND AGREES THAT EVALUATOR AND ITS USERS USE ANY PORTION OF THE SERVICE (INCLUDING THE ANALYSES) AT THEIR OWN DISCRETION AND RISK, AND THAT PROVIDER IS NOT RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY BODILY INJURY (INCLUDING DEATH), DAMAGE TO REAL OR PERSONAL PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE), OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA.
9.2. Analyses. Evaluator hereby agrees and acknowledges that the Service collects, analyzes, and otherwise uses Customer Data to generate and create related statistics, metrics, data, insights, information, and other analyses derived from such Customer Data (“Analyses”). Analyses are deemed to be Customer Data for purposes of this Agreement. WHILE THE ANALYSES MAY CONTAIN OR OTHERWISE REFLECT CERTAIN MEDICAL OR OTHER HEALTHCARE-RELATED INFORMATION, THE ANALYSES ARE NOT AND SHOULD NOT, UNDER ANY CIRCUMSTANCE, BE USED IN CONNECTION WITH THE PROVISION OF ANY MEDICAL OR HEALTHCARE-RELATED PROCEDURE, TREATMENT, ADVICE, SUGGESTIONS, RECOMMENDATIONS, OR GUIDANCE BY EVALUATOR, ITS USERS, OR ANY THIRD PARTY TO WHOM EVALUATOR OR ITS USERS PROVIDES ANY ANALYSES. THE ANALYSES SHOULD NOT BE CONSTRUED AS A REPRESENTATION OR WARRANTY BY PROVIDER THAT ANY PARTICULAR PROCEDURE, TREATMENT, ADVICE, SUGGESTIONS, RECOMMENDATIONS, OR GUIDANCE THAT IS BASED ON OR REFLECTED BY ANALYSES IS SAFE, APPROPRIATE, OR EFFECTIVE. PROVIDER DOES NOT IN ANY WAY REPRESENT, WARRANT, OR ENDORSE THE ACCURACY, APPROPRIATENESS, QUALITY, OR ADEQUACY OF ANY ANALYSES OR ANY PROCEDURE, TREATMENT, ADVICE, SUGGESTIONS, RECOMMENDATIONS, OR GUIDANCE BASED ON OR REFLECTED BY ANALYSES.
10. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100. IN NO EVENT WILL PROVIDER HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11. MISCELLANEOUS. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to the Agreement, will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the Parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Evaluator will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Provider, except that Provider shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement is the entire agreement between the Parties relating to the subject matter hereof. It is agreed that waiver by a Party hereto of any breach or default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of a Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy. The terms of an Evaluator purchase order or any other document that conflicts with, or in any way purports to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect. In the event that any clause, sub-clause or other provision contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such clause, sub-clause or other provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law. Except as otherwise provided herein, no addition, amendment to or modification if effective unless reduced to writing and executed by the respective duly authorized representatives of each Party.