TRIALSMITH SERVICES AGREEMENT
This TrialSmith Services Agreement (this “Services Agreement”) is between TrialSmith, Inc. (“TrialSmith” or “We”) and the customer ordering the TrialSmith Services/identified in the Service Order (“Customer” or “You”), each of TrialSmith and Customer may be referred to in this Agreement as a “Party” and collectively as the “Parties.” This Agreement is effective as of the first to occur of: (i) the date You accept the Agreement in writing or via click-thru or other electronic form of consent or (ii) the first date upon which You are provided with access to the Services (the “Effective Date”).
- DEFINED TERMS. The following words, when capitalized, have the meaning stated:
“Agreement” means, collectively, this Services Agreement and any applicable Service Order or other addenda provided by TrialSmith which governs the provision of Services.
“Commencement Date” means the date upon which You are first provided with access to the Services.
“Confidential Information” means non-public information disclosed by one party to the other that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
“Deliverables” means any tangible or intangible materials which are prepared for Your use in the course of providing the Services.
“Firm Account” means a group account which authorizes multiple individuals within a given law practice to access the Services.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Sensitive Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data); PII (or other like term) under applicable data protection or privacy law; (ii) trade secrets; (iii) financial records; and (iv) other sensitive, regulated, or confidential information.
“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, affiliates, suppliers, and agents.
“Services” means the TrialSmith services identified in a given Service Order or otherwise provided subject to the terms of this Agreement.
“Service Order” means the document which describes the Services provided pursuant to this Agreement, including any online process through which You request or provision Services.
“Support” means the availability of training and email and phone support during normal business hours (8AM – 6PM, Central Time, excluding public holidays in the United States).
“TrialSmith Content” means, without limitation, all information, depositions, case studies, case reports, transcripts, and other data which is contained within, accessed through, or hosted by the Services.
“User Account” means the unique login identifier and account through which You access the Services.
“User Submitted Content” means any deposition, pleading, transcript, feedback, feature request, or other materials or content which You submit or upload to the Services or to TrialSmith.
- SERVICES. Subject to the terms of this Agreement, and during the term of this Agreement, You may access and use the Services. We will provide the Services and Support in accordance with the Agreement and any laws applicable to TrialSmith.
- USE LIMITATIONS, CUSTOMER OBLIGATIONS.
- 1. User Requirements. You represent and warrant that as of the Effective Date You: (i) are engaged primarily in representing plaintiffs in litigation, (ii) do not represent defendants in litigation or work for a firm which represents defendants in litigation, (iii) do not represent any insurance company, and (iv) are licensed to practice law in the United States or Canada and are in good standing (collectively the “User Requirements”). If during the term of the Agreement You fail for any reason to meet the User Requirements, You agree that You will immediately notify TrialSmith and discontinue Your use of the Services. You agree to cooperate with TrialSmith in any investigation of any suspected breach of the Agreement.
- 2. Access Restrictions. You may not provide any other person or entity with access to the TrialSmith Services except that You may permit paralegals or legal research staff members under Your direct employment and supervision to utilize Your User Account exclusively for the purposes of assisting You in Your professional obligations (such persons “Permitted Staff”). Neither You nor any Permitted Staff may: (i) use the Services to perform research for any other person than You, (ii) distribute any TrialSmith Content to any person other than You unless required by applicable law (except that if You are a member of a Firm Account, TrialSmith Content purchased through the Services may be shared with any other registered members of the Firm Account), or (iii) use the Services to act as a service bureau or otherwise resell or republish any TrialSmith Content. You are responsible for any acts or omissions of the Permitted Staff as if they were performed by You. TrialSmith Content is governed by the requirements promulgated by the Trial Lawyers Assurance Corporation (the “Assurance Requirements”), and You expressly agree that TrialSmith may revise the Agreement and access requirements or restrictions relating to the TrialSmith Content at any time as necessary for TrialSmith to comply with the Assurance Requirements.
- SECURITY. You agree to use reasonable and appropriate methods to keep Your access credentials used to access the Services secure and prevent their use by unauthorized third parties, and to promptly notify TrialSmith if You become aware of any unauthorized use or disclosure of such access credentials. You are responsible for any use of the Services through Your access credentials, regardless of whether such use was authorized by You. Some TrialSmith Content may contain Sensitive Data, You represent and warrant that You will use, store, and transmit any Sensitive Data only in accordance with applicable laws and using reasonable and appropriate security measures to prevent unauthorized access to such Sensitive Data.
- INTELLECTUAL PROPERTY.
- 1. Pre-Existing. Each Party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the Effective Date.
- 2. Provided by You. You may, but are not required to, provide TrialSmith with User Submitted Content. If You provide TrialSmith with any User Submitted Content, or any of Your pre-existing Intellectual Property (“Customer IP”), then You hereby grant to TrialSmith a limited, worldwide, perpetual, royalty-free, right and license (with right of sub-license to TrialSmith Representatives and other users of the Services), to use and distribute (including by way of resale to other TrialSmith customers) the User Submitted Content and Customer IP in connection with the Services. You represent and warrant that You have all rights in the User Submitted Content and Customer IP necessary to grant this license, and that TrialSmith’s use of such User Submitted Content and Customer IP shall not infringe on the Intellectual Property rights of any third party, or violate any applicable law, statute, regulation, court order, or decree (this includes any depositions or other memoranda or transcripts which are under seal or other similar protections). You acknowledge and agree that User Submitted Content will only be removed from the Services: (i) in TrialSmith’s sole discretion or (ii) pursuant to an order of a court of competent jurisdiction. TrialSmith may, in its discretion, provide You with credits usable for purchases of TrialSmith Content in exchange for Your provision of User Submitted Content and You acknowledge that such credits have no monetary value and are not refundable or exchangeable for any currency. Subject to this Agreement, We will provide You with ongoing access to any User Submitted Content via the TrialSmith Services without any additional fee. You agree that You will not provide, publish, upload as User Submitted Content, or otherwise distribute using the Services any copyrighted materials or content, or any other content the distribution of which is prohibited by applicable law (including content under seal).
- 3. Created by TrialSmith. Excluding Customer IP and User Submitted Content, TrialSmith shall own all Intellectual Property created as part of providing the Services or contained in any Deliverables.
- 4. TrialSmith Content. Unless otherwise expressly stated in the Agreement, and subject to Your payment in full for the Services and any TrialSmith Content You purchase, during the term of this Agreement TrialSmith grants You a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables and any TrialSmith Content solely for Your use in connection with research and litigation proceedings and in accordance with the Agreement.
- 5. If the delivery of the Services infringes on the Intellectual Property rights of a third party and We determine that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverables such that they do not infringe, then We may terminate the Agreement or applicable Service Order on written notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of any Deliverables or purchased TrialSmith Content deemed infringing).
- 6. Removal of TrialSmith Content. If We are ordered by a court of competent jurisdiction, or reasonably believe that We are required pursuant to applicable law, to remove any TrialSmith Content, then We may immediately remove such TrialSmith Content from the Services and require that You delete any copies of such TrialSmith Content which You have in Your possession. In such circumstance You agree that You will provide written confirmation that You have deleted any such TrialSmith Content upon TrialSmith’s request.
- 1. Fees. Unless otherwise specified in Your Service Order, two types of fees may apply to Your use of the Services: (i) an annual or monthly recurring fee for access to the Services (a “Subscription Fee”) and (ii) as-incurred fees for purchases of certain TrialSmith Content (“Content Fees”). Fees are due within 30 days of the invoice date. All fees are due commencing upon the Effective Date. If You have arranged for payment by credit card or ACH, We may charge Your card or account on or after the day in which a purchase is made or a fee becomes due. Invoices that are not disputed within 90 days of the invoice date are conclusively deemed accurate. We may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and You shall pay for any cost or expense arising out of Our collection efforts. You agree and acknowledge that the Subscription Fee is non-refundable.
- 2. Changes to Fees. Subscription Fees are subject to change without notice. Changes to Subscription Fees will not apply to You during the term of a given Service Order, but new and renewal Subscription Fees may change over time at TrialSmith’s discretion. Content Fees are subject to change without notice, including during the term of a given Service Order. The then current Content Fee will be displayed to You prior to completing any purchase of TrialSmith Content.
- 3. Taxes. All amounts due under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties, and/or applicable levies (collectively “Tax”). You must pay any Taxes due on TrialSmith’s provision of the Services or provide TrialSmith with evidence of exemption from such Taxes in advance of invoicing.
- DISCLAIMERS. We make no commitment to provide any services other than the Services described in the Service Order. We are not responsible to You or any third party for unauthorized access to TrialSmith Content (including User Submitted Content) that is not solely caused by TrialSmith’s failure to comply with its obligations in the Agreement.
At Your request, We may provide services that are not required by the Agreement, any such services, and all TrialSmith Content, is provided AS-IS with no representation or warranty whatsoever. Specifically, you acknowledge that the TrialSmith Content is received from third parties, and TrialSmith cannot and does not guarantee the accuracy of any of the TrialSmith Content, and you acknowledge that it may have been changed or modified from its original format and content.
TrialSmith and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement.
- TERM AND TERMINATION.
- 1. Term. The term of each Service Order shall commence upon the Commencement Date. If no term is specified on the Service Order then the term shall be for 12 months. Service Orders do not automatically renew, if You fail to renew Your Service Order prior to expiration, You will lose access to the Services.
- 2. Termination. This Agreement, and Your right to access the Services, shall terminate upon the first to occur of: (i) Your failure to meet the User Requirements, (ii) the termination date of Your final Service Order, (iii) the termination of the Agreement in accordance with Section 8.4, or (iv) at TrialSmith’s exclusive discretion, upon written notice and subject to a refund of the pro-rated portion of any pre-paid fees for the terminated Services. In the event of a termination pursuant to Section 8.2(iv), You agree that TrialSmith’s sole and exclusive liability in connection with such termination shall be the refund of such pre-paid fees. You may also terminate the Agreement for convenience by providing TrialSmith with written notice (or through the Services), but in such case any refund of pre-paid fees shall be exclusively at TrialSmith’s discretion.
- 3. Suspension. We may suspend Your access to the Services if: (i) We reasonably believe You are using the Services in violation of the Agreement, (ii) Your payment is 15 days late or more, and (iii) as We deem reasonably necessary to protect the integrity of the Services or the TrialSmith Content.
- 4. Termination for Cause. Either Party may terminate the Agreement or the affected Service Order(s) for cause on written notice if the other Party materially breaches the Agreement and does not remedy the breach within 30 days of the other party’s written notice describing the breach. If, following the suspension of Your Services for non-payment as provided for in Section 8.3(ii), Your account remains overdue for a further 15 days, We may terminate the Agreement or the applicable Services Orders for breach on written notice.
- PRIVACY, USE OF YOUR INFORMATION.
- 1. We will not share or disclose Your name and contact information provided to TrialSmith in connection with Your use of the Services for marketing purposes, but We may send You communications on behalf of Our sponsors, which You may opt-out of at any time. Notwithstanding anything to the contrary in this Agreement, We may use Your personal information, list server message history, document purchase and view history, and User Submitted Content: (i) to monitor Your use of the Services, including for compliance with the terms of this Agreement, (ii) for Our internal purposes in order to evaluate the performance of the Services, perform maintenance, assist in troubleshooting, (iii) for internal product development activities, and (iv) to facilitate sharing of your data with other TrialSmith customers who may wish to make a connection with you for expert assistance.
- 2. TrialSmith exclusively provides the Services to plaintiff attorneys, and may take action to prevent any unauthorized parties from using the Services, therefore You agree and acknowledge that if We reasonably believe that You are using the Services in violation of the terms of this Agreement (including any failure by You to meet the User Requirements), We may disclose Your identity and the details of Your use of the Services (including your search history and content access history) to any third party: (i) who We reasonably believe may be injured or otherwise disadvantaged by Your use of the Services in violation of this Agreement, (ii) to whom We owe any reporting obligations related to Your misuse of the Services in violation of this Agreement, (iii) who is assisting TrialSmith in investigating misuse of the Services, or (iv) whose contact information, personal information, usage history, or User Submitted Content We believe You have accessed or used in violation of the Agreement.
- 3. Because TrialSmith is a plaintiff lawyer only network, You agree and consent to TrialSmith disclosing Your identity and use of the Services including search history to other users of the Services as part of Our expert data-sharing functionality (for example, if a user searches for a particular term or individual, the Services may display a list of all other users who have also searched for the same term or individual).
- CONFIDENTIAL INFORMATION. Each Party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement, (ii) as required by law, or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
LIMITATIONS ON DAMAGES
1. Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from: (i) death or personal injury caused by negligence, (ii) willful misconduct, (iii) fraudulent misrepresentation or (iv) any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of TrialSmith and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the total amount of fees paid for the Services in the 12 month period immediately preceding the event(s) giving rise to the claim
2. Indirect Damages. TrialSmith and its Representatives shall have no liability whatsoever for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. TrialSmith shall not be liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if TrialSmith has been advised or should be aware of the possibility of such damages. In no event shall TrialSmith or its Representatives be liable for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
- 1. If We, Our Affiliates, or any of Our or their Representatives (the “Indemnitees”) are faced with a legal claim by a third party (i) arising out of Your actual or alleged: willful misconduct, breach of applicable law, gross negligence, breach of the Agreement, or (ii) that Your User Submitted Content is either unlawfully provided or infringes on the privacy or Intellectual Property rights of any third party, then You will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim.
- 2. We will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to You. You must comply with Our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without Your consent, which may not be unreasonably withheld, delayed, or conditioned. You must pay costs and expenses due under this section as We incur them.
- NOTICES. Your routine communications to TrialSmith regarding the Services should be sent to Your account team using the customer portal or to firstname.lastname@example.org. To give notice regarding termination of the Agreement for breach, indemnification, or other legal matter, You must send it by electronic mail to email@example.com and first-class post to: TrialSmith, 5113 Southwest Parkway, Suite 285, Austin, Texas 78735.
TrialSmith’s routine communications regarding the Services and legal notices will be sent by email or post to the individual(s) You designate as Your contact(s) on Your account.Notices are deemed received as of the time posted or delivered, or if that time does not fall within a business day, as of the beginning of the first business day following the time posted or delivered.For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
- PUBLICITY, USE OF MARKS. You may not issue any press release regarding the Agreement or use the TrialSmith logo or other identifying indicia without TrialSmith’s prior written consent.
- ASSIGNMENT, SUBCONTRACTORS. You may not assign the Agreement or any Service Order without the prior written consent of TrialSmith. TrialSmith may use its Affiliates or subcontractors to perform all or any part of the Services, but TrialSmith remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if TrialSmith performed the Services itself.
- FORCE MAJEURE. Neither Party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such Party’s reasonable control.
- GOVERNING LAW. The Agreement is governed by the laws of the State of Texas, USA, exclusive of any choice of law principle that would require the application of the law of a difference jurisdiction. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Travis County, Texas, and We each agree not to bring any action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. No claim may be brought as a class or collective action, nor may You assert such a claim as a member of a class or collective action that is brought by another claimant. Each Party agrees that neither shall bring a claim under the Agreement more than 2 years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
- 1. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties or by an exchange of correspondence that includes the express consent of an authorized individual for each Party. The pre-printed terms of Your purchase order or other invoice or terms that You provide shall be void and of no effect. You represent and warrant that You have all right and authority to enter into the Agreement, and if you are an individual acting on behalf of an entity, that You have actual authority to bind Customer to this Agreement.
- 2. Some terms are incorporated into the Agreement by reference to pages on the TrialSmith website, and TrialSmith may revise those terms from time to time. Such revisions shall only be effective and supersede and form part of the Agreement as of the time: (i) You enter into a new Service Order referencing the revised terms, (ii) a Service Order automatically renews pursuant to the Agreement or the Parties enter into a renewal term, in which case You acknowledge that You have reviewed and accepted the then-current version of the terms as of the date of the renewal, or (iii) as otherwise provided in this Section 18.2. TrialSmith may also revise the terms of this Agreement by providing You written notice of such revisions (such notice the “Revision Notice”). Revisions pursuant to this Section 18.2 shall be effective immediately upon the date of the Revision Notice, and Your continued use of the Services constitutes Your acceptance of any such revisions. If any such changes to the Agreement would adversely affect Your use of the Services, You may terminate the Agreement by giving TrialSmith written notice of Your termination no later than 10 days following the Revision Notice. Within 10 days of receiving such notice of termination, We may either: (i) agree to the termination and refund You the pro-rated portion of any pre-paid fees for the terminated Services (in which case You agree that TrialSmith’s sole and exclusive liability in connection with such termination shall be the refund of such pre-paid fees) or (ii) waive the revised terms of the Agreement as to You, in which case Your notice of termination shall be of no effect.
- 3. If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each Party may enforce it respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the Parties is that of independent contractors and not business partners. Neither Party is agent for the other and neither party has the right to bind the other in any Agreement with a third party. The use of the word “including” means “including without limitation.” Other than Representatives for the purposes of Sections 7, 10, and 11, there are no third party beneficiaries to the Agreement. The following Sections of the Agreement shall survive the termination of the Agreement: 5, 7, 9, 10, 11, 12, 13, 16, 17, 18, and any provision which, by its nature, is intended to survive the termination of the Agreement or requires the payment of any fees by You.