TruLab, Inc. Customer Terms & Conditions

TruLab, Inc.

Customer Terms & Conditions

Pursuant to an agreement (the “Reseller – Client Agreement”) by and between you (the “Client”) and a third party (the “Reseller”) with whom TruLab has entered into an agreement (the “Reseller – TruLab Agreement”), Client has agreed to purchase from Reseller use of certain TruLab Technology (as defined below) and TruLab Devices (as defined below) provided by TruLab, Inc., a Delaware corporation having its principal place of business at 110 North Corcoran Street, 5th Floor, Durham, North Carolina, 27701 (“TruLab”) in connection with one or more Clinical Studies (as defined below). These Customer Terms & Conditions (these “Terms”) are between Client and TruLab and govern Client’s access to and use of TruLab Technology, and TruLab Devices. Client has agreed to these Terms pursuant to the Reseller – Client Agreement and Client also separately accepts and agrees to be bound by these Terms by using, licensing, or accessing, or by causing or permitting any other party to use, license or access, any portion of any TruLab Technology or TruLab Devices. Each of TruLab and Client may be referred to herein individually as a “Party,” and together as the “Parties.”

  1. Definitions

When used in these Terms (other than in Section headings), the following initially capitalized terms shall have the meanings assigned to them in this Section 1, and include the plural as well as the singular, and all participles of each such term, as applicable. Certain other initially capitalized terms may be defined elsewhere in this Agreement.

Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the SaaS Services and TruLab Device Software.

Client Inputs” means any and all information, data, text, content, videos, images, audio clips, photos, graphics, or other types of content, information, or data posted, provided, or uploaded to the SaaS Services by or on behalf of Client (including, without limitation, by Clinical Sites, or Users).

Clinical Site” means any third-party clinical trial site contracted by or on behalf of Client to conduct a clinical study sponsored by Client (including Clinical Studies), and for whom Client has purchased the right to access and use the SaaS Services and TruLab Device Software.

Clinical Study” means any clinical study described in the Reseller – Client Agreement.

Documentation” means materials, whether in print or electronic form, that describe the features, functions, and use of the TruLab Device, TruLab Device Software, and SaaS Services and which are made available to Client or Clinical Sites.

Intellectual Property Rights” mean any and all currently known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing ((a)–(e)), in each case, in any jurisdiction throughout the world.

Reseller – Client Agreement” is defined in the preamble. For the avoidance of doubt, references to “Reseller – Client Agreement” will be deemed to include any exhibits or other attachments to the Reseller – Client Agreement, and any order forms, statements of work, or the like which may be entered into pursuant to the Reseller – Client Agreement.

Reseller – TruLab Agreement” means the agreement between TruLab and Reseller pursuant to which TruLab has granted Reseller rights with respect to certain TruLab Technology and TruLab Devices and pursuant to which Reseller has the right to grant Client certain rights with respect to such TruLab Technology and TruLab Devices.

SaaS Services” means the version of TruLab’s software as a service offering made available by TruLab to Client or Clinical Sites pursuant to the Reseller – Client Agreement, and all Updates thereto.

“TruLab Analytics” means any anonymized information, data, statistics, metadata, inferences, interrelationships, or associations generated by the SaaS Services, including without limitation as derived from aggregated anonymized inputs to, and usage of, the SaaS Services across TruLab customers.

TruLab Device(s)” means the mobile device(s) leased to Client or Clinical Sites pursuant to the Reseller – Client Agreement (if any).

TruLab Device Software” means TruLab’s proprietary software that scans, alerts, logs activities and provides instructions to Users for collection and processing of biological samples, is installed on a TruLab Device, and is used in conjunction with the SaaS Services. TruLab Device Software includes all Updates thereto.

TruLab Technology” means: (a) the TruLab Device Software; (b) the SaaS Services; (c) the computer software, computer code, scripts, neural networks, artificial intelligence, application programming interfaces, methodologies, processes, templates, work flows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used in the TruLab Device Software or used to make available the SaaS Services; (d) all upgrades, enhancements, modifications, additions and improvements to any of the foregoing; (e) all derivative works of any of the foregoing; and (f) all Intellectual Property Rights in or to any of the foregoing.

Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the TruLab Device Software or SaaS Services made available by TruLab during the Term.

User” means: (a) employees, contractors, or agents of Client or Clinical Site; (b) third parties pre-approved in writing by TruLab; and (c) authorized admin users, in each case ((a)-(c)) who have been assigned Access Credentials.

  1. Devices
    • Generally. Client shall not and shall ensure that Clinical Sites and Users shall not: (a) enter into any lease, loan, or similar arrangement with respect to the TruLab Devices; or (b) transfer, assign, convey, encumber, pledge or otherwise dispose of any TruLab Device (or any interest therein), and any attempt to do any of the foregoing shall be void and deemed a material breach of these Terms. Client agrees that the lease of TruLab Devices under the Reseller – Client Agreement is intended to be a true lease under UCC Article 2A, but if it is later deemed to be a lease intended for security under UCC Article 9, such lease constitutes the grant to TruLab of a purchase money security interest in TruLab Devices and any replacements, substitutions, additions, attachments, and proceeds. TruLab may, on behalf of Client, execute and file such financing statements, applications for registration, and other documentation for the purpose of protecting or perfecting the interest of TruLab in the TruLab
    • Maintenance. Client shall, and shall ensure that Clinical Sites and Users shall, take good and proper care of TruLab Devices and keep the TruLab Devices in good condition and working order. Client shall not, and shall ensure that Clinical Sites and Users shall not, make any permanent alterations, additions, or improvements to TruLab Device All repairs, replacements, parts, devices, accessories, or improvements of whatsoever kind or nature furnished, or affixed to, the TruLab Devices shall become part of the property of TruLab. Upon the occurrence of any irreparable damage, destruction, or loss of a TruLab Device other than normal depreciation and wear and tear, Client shall promptly notify TruLab and if such damage, destruction, or losses results from the acts or omissions of Client Clinical Sites or Users, Client shall be responsible for the replacement cost of the damaged, destroyed, or lost TruLab Device(s).
    • TruLab Device Software. Client shall, and shall ensure that Clinical Sites and Users shall, use the TruLab Device Software installed on TruLab Devices solely in accordance with these Terms and the applicable Reseller – Client Agreement. Client shall not, and shall ensure that Clinical Sites shall not, remove any TruLab Device Software from the TruLab Devices.
    • Return of Devices. Upon expiration or earlier termination of the Reseller – Client Agreement, Client shall, pursuant to TruLab’s or Reseller’s instructions and at Client’s expense (including any expenses of transportation or in transit insurance), return (or cause Clinical Sites to return) to TruLab (at an address designated by TruLab) the TruLab Devices, in the same operating order, repair, condition, and appearance as when received, less normal depreciation and wear and tear.
  2. Access Grant; Licenses; Ownership
    • Client Inputs. To enable TruLab to provide the SaaS Services, Client grants to TruLab a non-exclusive, royalty-free, license, to access, use, and copy, the Client Inputs solely as necessary to provide the SaaS Services and create the TruLab Analytics. TruLab agrees Client owns all right, title, and interest in and to the Client Inputs and reserves all rights not expressly granted to TruLab under these Terms.
    • Users. Client shall, and shall ensure that Clinical Sites shall, ensure that all its Users comply with the terms and conditions of these Terms. Client will promptly notify TruLab of any suspected or alleged violation of the terms and conditions of these Terms and will cooperate with TruLab with respect to: (a) investigation by TruLab of any suspected or alleged violation of these Terms; and (b) enforcement of these Terms.
    • Ownership. The TruLab Technology, TruLab Devices, Documentation, TruLab Analytics, and all worldwide Intellectual Property Rights in and to each of the foregoing, and in and to all derivative works of each of the foregoing, are the exclusive property of TruLab and its licensors.
    • Access Grant. Reseller has granted to Client a non-exclusive, non-transferable, worldwide, revocable, non-sublicensable right to use, and to permit Clinical Sites and its and Clinical Sites’ Users to use, certain TruLab Technology or TruLab Devices for the Clinical Study during the period set forth in the Reseller – Client Agreement.  This grant of rights (a) is subject to and conditioned upon Client’s, Clinical Sites’ and Users’ compliance with these Terms, the Documentation, and the Reseller – Client Agreement, and (b) may be exercised by Client, Clinical Sites and Users only in the conduct of the Clinical Study.  TruLab may suspend or terminate any such rights without liability to Client or any other party; provided that TruLab does so in compliance with the Reseller – TruLab Agreement.
    • Client Access. Client acknowledges and agrees that Client’s, Clinical Sites’, and Users’ access and use of the SaaS Services and TruLab Devices Software is dependent upon access to telecommunications and Internet services. As between TruLab and Client, Client will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the SaaS Services and TruLab Devices Software, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. TruLab will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software.
    • Access Credentials. Client will be responsible for all acts and omissions of Clinical Sites and Users. Client shall and shall ensure that Clinical Sites shall: (a) keep its Access Credentials secure and confidential and not allow any Users to provide their Access Credentials to anyone else; and (b) not permit others to use Client’s Access Credentials. Client will notify TruLab immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.
    • Use Guidelines. Client shall, and shall ensure that Clinical Sites shall, comply with all applicable laws, rules and regulations in its use of the SaaS Services and TruLab Devices Software. Client shall not, and shall ensure that Clinical Sites shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, copy, reproduce, distribute, time share or otherwise commercially exploit or make any TruLab Technology available to any third party, other than as expressly permitted by these Terms; (b) use the TruLab Technology for any purpose other than the performance of Clinical Studies in accordance with these Terms and the Reseller – Client Agreement; (c) disrupt any servers or networks connected to the SaaS Services, or disobey any requirements, procedures, policies or regulations of networks connected to the SaaS Services; (d) attempt to gain unauthorized access to any TruLab Technology or any related systems or networks; (e) remove, alter or obscure any proprietary notices associated with any TruLab Technology; (f) use any TruLab Technology in violation of any applicable, law, rule, regulation or guideline (including any United States export laws and regulations); (g) utilize any TruLab Technology in order to (i) send spam or otherwise duplicative or unsolicited messages, (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights, or (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant malware on any computer systems, those systems of TruLab’s third-party service providers or vendors, or otherwise use any TruLab Technology to attempt to upload or distribute malware; (h) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with any TruLab Technology or breach any security or authentication measures; or (i) reverse engineer any of the TruLab Technology.
    • Client Input Restrictions. Client is responsible for all Client Inputs. Client represents, warrants, and covenants that Client, Clinical Sites, and Users have all rights and licenses necessary to upload the Client Inputs and to grant the licenses granted hereunder. Client represents, warrants, and covenants that all Client Inputs: (a) will not and do not infringe the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of others; (b) will not and do not violate the privacy, publicity, or other rights of third parties, or any other law, statute, ordinance, or regulation; (c) are not and will not become unlawful, tortious, fraudulent, defamatory or harmful to minors, obscene, or pornographic; (d) will not and do not violate Client’s or Clinical Sites’ own privacy policy or collect information from Users in any manner to which such Users have not consented; (e) will not and do not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (f) will not violate, or encourage any conduct that would violate, any applicable law or regulation, or which could give rise to civil liability.
  3. Disclaimer of Warranties
    • TRULAB MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE DOCUMENTATION, THE TRULAB TECHNOLOGY, OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TruLab shall not be responsible for ensuring, and does not represent or warrant that: (a) the SaaS Services or the TruLab Technology will meet Client’s or any Clinical Site’s business requirements; (b) the SaaS Services and TruLab Technology will be error-free or uninterrupted; or (c) all deficiencies in the SaaS Services and TruLab Technology can be found or corrected. Client acknowledges and agrees that TruLab may modify TruLab Technology at any time without liability to Client; provided that TruLab does so in compliance with the Reseller – TruLab Agreement.
  4. Indemnification
    • Client shall defend, indemnify, and hold TruLab, its affiliates, employees, officers, and directors harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with any third-party claims, suits, or proceedings (each, a “Claim”) made or brought against TruLab by any third party (including Claims made or brought by Clinical Sites) arising out of: (a) any aspect of a Clinical Study for which Client is responsible (except to the extent that the Claim arises out of the SaaS Services, TruLab Devices, or TruLab Technology failing to perform in accordance with the Documentation); (b) the Client Inputs; or (c) any failure or alleged failure of Client to comply with any applicable law, rule or regulation in connection with its use, or Users’ use, of the SaaS Services or TruLab Technology. Client’s indemnification obligations under this Section 1 shall not apply to any Claim to the extent that such Claim arises from the gross negligence or willful misconduct of TruLab.
    • In the event that TruLab seeks indemnification for any Claim pursuant to Section 1, TruLab shall: (a) notify Client promptly in writing of such Claim; (b) give Client sole control of the defense of such Claim and any related settlement negotiations (provided that Client may not settle any without TruLab’s prior written consent; and (c) at Client’s request and expense, reasonably cooperate and assist Client in such defense.
  5. Limitation of Liability
    • Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRULAB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE CONSIDERATION ACTUALLY PAID TO TRULAB BY RESELLER FOR CLIENT’S USE OF TRULAB TECHNOLOGY IN CONNECTION WITH THE CLINICAL STUDY. THE FOREGOING LIMITATION IS CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
    • Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TRULAB HAVE ANY LIABILITY TO CLIENT FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT TRULAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
  6. Suspension
    • Suspension of Services. TruLab may, immediately upon notice to Client and without any liability, suspend Client’s, Clinical Sites’, or any Users’ access to the SaaS Services, if TruLab determines that: (a) a reasonable threat to the technical security or technical integrity of the SaaS Services exists; or (b) Client or any User has breached these Terms.
  7. General
    • Dispute Resolution; Governing Law; Forum Selection. These Terms and any action related thereto shall be governed by, construed, and interpreted in accordance with the laws of the State of North Carolina, USA, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wake County, North Carolina, which shall be the sole forum regarding any actions, suits, or other legal proceedings relating to this Agreement. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
    • Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • Waiver; Remedies. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of each Party, at law or in equity.
    • Entire Agreement. To the maximum extent permitted by applicable law, these Terms constitute the entire agreement between TruLab and Client as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms. No representation, undertaking, or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to these Terms except as expressly stated in these Terms. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by both Parties. In the event of any conflict or inconsistency between the provisions of these Terms and the Reseller – Client Agreement, these Terms shall prevail.
    • No Assignment. Client shall not assign, subcontract, delegate, or otherwise transfer these Terms, or any of its rights or obligations hereunder, without TruLab’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void ab initio. These Terms will be binding upon the Parties and their respective successors and permitted assigns.
    • Independent Contractors. TruLab’s relationship to Client is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have and will not represent to any third party that it has, any authority to act on behalf of the other Party.
    • Notices. All notices under these Terms shall be in writing. All notices shall be given by: (a) delivery in person; (b) a nationally recognized next-day courier service (e.g., UPS, ); or (c) first class, registered or certified mail, postage prepaid, return receipt requested; in each case ((a)–(c)) addressed to the applicable TruLab address set forth in the preamble to these terms (if such notice is to TruLab) or the applicable Client address set forth in the Reseller-Client Agreement and shared with TruLab by Reseller (if such notice is to Client). All notices shall be effective upon receipt by the Party to which notice is given. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
    • Construction; Interpretation. These Terms shall be interpreted in accordance with its terms, without any strict construction against or in favor of the drafting Party. The descriptive headings of this Agreement are for convenience only, and shall be of no effect in construing or interpreting any provision. As used in this Agreement, the term “including” (or “includes”) shall be deemed to mean “including without limitation” (or “includes without limitations”), and the word “or” shall be deemed to be disjunctive but not necessarily exclusive.