TERMS AND CONDITIONS
LAST UPDATED: February 28, 2023
THESE TERMS AND CONDITIONS CONTAIN VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
THESE TERMS AND CONDITIONS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
YOU MAY NOT USE THIS WEBSITE, ANY SERVICES, OR ANY TRIALS CONTENT IF YOU (A) DO NOT AGREE TO THESE TERMS AND CONDITIONS, (B) ARE NOT THE OLDER OF (I) AT LEAST 18 YEARS OF AGE, OR (II)THE LEGAL AGE TO FORM BINDING AGREEMENTS WITH TRIALSCO INC., A DELAWARE CORPORATION, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS SERVICES OR ANY TRIALS CONTENTS BY APPLICABLE LAW.
1 These Terms and Conditions.
(a) These Terms and Conditions are entered into by and between you (“you”, a “user”) and Trialsco Inc., a Delaware corporation, (“Trials,” "we," “our,” "us"). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the "Terms"), are applicable to your access to and use of www.trials.co, and all other websites and online applications, platforms, and tools operated by Trials or its affiliates and that link to or incorporate these Terms (collectively, the "Services") as well as your access to and use of the Services, the Trials Content (defined below), and all other information, materials, products, tools, features, and services provided by or on behalf of Trials through the Services (all of which are also part of the “Services”). Please read these Terms carefully as they are applicable to any access or use by you of any Services, regardless of whether you possess or do not possess an account for the Services linked to your name and/or contact information (“Account”).
(b) We may specify additional terms and conditions applicable to your access and use of a specific Service (“Additional Terms”). Any such Additional Terms will supplement the generally applicable terms and conditions set forth in these Terms. In the event of any inconsistency between these Terms and any set of Additional Terms, the applicable Additional Terms shall govern with respect to your access to and use of that specific Service. For the avoidance of doubt, all Additional Terms shall be deemed part of the Terms unless the context requires otherwise.
3 Age Restriction. The Services are only for users 18 and older. By accessing or using the Services, You represent and warrant that you are at least eighteen (18) years old, or any higher minimum age in the jurisdiction where you reside. If you are under 18 years old, you may not use or access any of the Services and must immediately cease doing so.
4 Geographic Restrictions. Trials is based in the United States. The Services and Trials Content are for use by persons located in the United States only. By choosing to access the Services from any location other than the United States, you accept full responsibility for compliance with all local laws. Trials makes no representations that the Services, the Trials Content, or any other information or materials available through the Services are accessible, appropriate, or legally permissible to access or use outside of the United States.
5 Accessing the Services; Accounts.
(a) We reserve the right to withdraw or amend the Services or any Trials Content (as defined below) we provide on the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access otherwise provided to users, including registered users, to some or all of the Services. You are solely responsible for making all technical and other arrangements necessary for you to have access to the Services.
(c) If you choose or are provided with a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Services using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. If have an Account, you must ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your password or other personal information. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WHOLLY LIABLE AND RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT OR WITH THE USE OF YOUR PASSWORD, YOUR USER NAME, OR ANY OTHER INFORMATION PROVIDED TO YOU ARE PART OF OUR SECURITY PROCEDURES, WHETHER OR NOT ANY SUCH ACTIVITIES OCCUR WITH OR WITHOUT YOUR PERMISSION AND/OR KNOWLEDGE.
(d) We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, to terminate your Account, refuse service to you, or cancel anything requested or ordered through the Services at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
6 Right to Change Terms and Conditions. Trials may, at any time and from time to time, change these Terms, in whole or in part. You agree to review these Terms periodically. Any changes to these Terms will be effective immediately upon the posting of the modified Terms to the Services, and, if you possess an Account, by either providing notice of the changes to you when you log in to the Services or by sending notice of the changes to contact information that you have provided to us. You agree to comply with, and be bound by, the modified Terms either (i) by continuing to use or access the Services after modified Terms are posted to the Services, or (ii) if you possess an Account, by not requesting to terminate your Account within seven (7) calendar days after receiving a notice of the changes as described above. For the avoidance of doubt, this Section shall also apply in the same way to any Additional Terms applicable to your use of the Services.
7 Trials Content; Our Intellectual Property Rights. The Services and its entire contents, features, and functionality, including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof, (collectively, “Trials Content”) are owned by Trials, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. No right, title, or interest in or to the Services, any Trials Content, or any other materials and information made available through the Services is granted to you hereby except a limited right and license to use the Services and Trials Content solely your personal, non-commercial purposes or as expressly permitted elsewhere in these Terms or in a set of Additional Terms. All rights not expressly granted are reserved by Trials.
8 Assumption Of Risk; Disclaimer About Trials, The Services, And Trials Content
(a) Assumption of Risk. The Services are (among other things) designed to provide one or more third parties that are involved with the organization and operation of clinical trials of drugs, medical technologies, and related matters with health-related information based on the information and records you submit and authorize third parties (such as a doctor's office) to provide on your behalf. The Services and any related data supplied to you by Trials is not, nor a substitute for, medical advice. By granting you the right to use the Services, Trials do not assume any obligation or liability with respect to your health or your physical activity or condition. In no event shall Trials be liable for any death or bodily injury that you suffer, or that you cause to any third party, in connection with your use of the Services or any activity you undertake in connection with your use of the Services. As between you and Trials, you are solely responsible for your use of the Services and your health and medical condition and treatment related thereto. The Trials Entities shall have no liability for any unauthorized disclosure of your personally identifiable information caused by your actions or omissions.
(b) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AGREE THAT: (1) IF YOU ARE IN NEED OF OR ARE SEEKING MEDICAL TREATMENT OR EMERGENCY CARE, YOU SHOULD CONTACT YOUR HEALTHCARE PROVIDER OR CALL 911 IMMEDIATELY; (2) TRIALS DOES NOT PROVIDE MEDICAL TREATMENT, ADVICE, OR DIAGNOSIS AND IS NOT A HEALTHCARE PROVIDER; (3) TRIALS IS NOT YOUR HEALTHCARE PROVIDER, IS NOT AND DOES NOT PROVIDE 911 OR OTHER EMERGENCY SERVICES, AND MAY NOT CONTACT YOU OR ANYONE ON YOUR BEHALF WITH RESPECT TO YOUR MEDICAL CONDITION OR TREATMENT; (4) ANY TRIALS CONTENT OR OTHER INFORMATION OR MATERIALS PROVIDED BY TRIALS THROUGH THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER; (5) TRIALS IS NOT A LICENSED MEDICAL CARE PROVIDER AND HAS NO EXPERTISE IN DIAGNOSING, EXAMINING, OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ANY SPECIFIC TREATMENT ON A MEDICAL CONDITION; (6) YOU SHOULD ALWAYS CONSULT A PHYSICIAN IF YOU HAVE ANY QUESTIONS REGARDING A MEDICAL CONDITION; (7) NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ OR RECEIVED USING THE SERVICES; (8) THE TRIALS ENTITIES ASSUME NO LIABILITY WITH RESPECT TO ANY SURVEY, DRUG-, MEDICAL-, HEALTH- OR MEDICAL TECHNOLOGY-RELATED TRIAL, ANY OTHER RESEARCH OR MEDICAL PROGRAM OR STUDY WITH WHICH YOU ARE INTRODUCED TO, ARE CONNECTED WITH, PARTICIPATE WITH BY USING, OR OTHERWISE ARISING THROUGH YOUR USE OF THE SERVICES; AND, (9) THE TRIALS ENTITIES ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS, OR CORRECT USE OF ANY TRIALS CONTENT OR OTHER INFORMATION YOU RECEIVE FROM OR THROUGH THE SERVICES, OR IS GENERATED BY THE SERVICES BY YOU.
9 Permitted and Prohibited Uses of Services and Trials Content.
(a) These Terms permit you to use the Services and Trials Content for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any Trials Content, except solely for your personal, non-commercial use.
(b) You agree not to use the Services or any Trials Content in any of the following ways:
• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries);
• Using any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any Trials Content or other materials and information potentially available on or the Services;
• Using any manual process to monitor or copy any Services, any Trials Content, or other materials and information made available on or through the Services without our prior written consent (except solely for your own personal, non-commercial usage as contemplated herein);
• Using any device, software, or routine that interferes with the proper working of the Services;
• Introducing any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
• Attempting to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services;
• Attacking the Services via a denial-of-service attack or a distributed denial-of-service attack;
• Transmitting, or procuring the sending of, any advertising or promotional material without our prior written consent, including any "junk mail," "chain letter," "spam," or any other similar solicitation;
• in any way that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Services, including their ability to engage in real time activities through the Services;
• Impersonating or attempting to impersonate Trials, one of our employees or other personnel, another Services user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
• Modifying any copies of the Trials Content, including, without limitation, by deleting or altering any copyright, trademark, or other proprietary rights notices included or associated with any copies of any Trials Content;
• Engaging in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm Trials or users of the Services, or expose them to liability; or
• Otherwise attempting to interfere with the proper working of the Services.
(c) If you use or access or enable any others to use or access the Services, any Trials Content, or any other or other materials and information made available on or through the Services, either manually, by use of any automated program or technology, or otherwise, your right to use the Services will immediately terminate and you will be required, in we determine in our sole discretion, to return or destroy any copies of any Trials Content or other materials and information made available through the Services that you have made or are otherwise under your control. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
(d) For the avoidance of doubt, except solely to the extent expressly permitted by these Terms or a set of Additional Terms, you may not engage in any commercial use of any Services, any Trials Content, or other materials or information provided or made available through the Services unless with Trials’ express prior written approval in each instance.
10 User-Provided Information. You understand that all information, data, or other materials that you upload, post, transmit, publish, display, authorize us to obtain from a third party (such as a doctor’s office) or otherwise make available through the Services ("User-Provided Information"), is solely your responsibility, and not the responsibility of Trials, any of our partners, service providers, licensors, or any other third party. We do not control the User-Provided Information provided to us and, as such, do not guarantee the accuracy, integrity, or quality of any User-Provided Information. Furthermore, User-Provided Information is for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Under no circumstances will we be liable in any way for or related to any User-Provided Information, including, but not limited to, for any errors or omissions in any User-Provided Information, or for any loss or damage of any kind incurred as a result of the publication or use of or reliance on any User-Provided Information uploaded, posted, transmitted, published, displayed, or otherwise made available through the Services.
By uploading, posting, transmitting, publishing, displaying, or otherwise making available User-Provided Information through the Services, you represent and warrant that:
• you own or control all rights, title, and interests to such User-Provided Information;
• all "moral rights" that you may have in such User-Provided Information have been voluntarily waived by you;
• you have the right to grant the licenses granted under these Terms; and
• all User-Provided Information that you post: (i) is accurate; (ii) does not violate these Terms; (iii) will not conflict with, result in a breach or violation of any terms or provisions of, or constitute a default under any contract or agreement to which you are currently bound or will become bound in the future; (iv) does not and will not violate any law, and (v) will not cause injury to any person or entity.
12 Trials Trademarks. The trademarks, service marks, and logos of Trials (the “Trials Trademarks”) used and displayed in connection with the Services and the Trials Content are registered and unregistered trademarks and service marks of Trials. Other company, product, and service names used in connection with the Services may be trademarks or service marks owned by third parties (“Third-Party Trademarks”, and, collectively with the Trials Trademarks, the “Trademarks”). Nothing on or made available to you on or through the Services or in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Services or otherwise used in connection with the Services or any Trials Content without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trials Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Trials Trademark shall inure to our benefit.
13 Feedback. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Services, any Trials Content, or any related matter (collectively, “Feedback”) that you provide to us are non-confidential and we will be entitled to the unrestricted use and dissemination of any such Feedback for any purpose, commercial or otherwise, without your acknowledgment or compensation to you.
14 Anonymized Data. You acknowledge and agree that Trials may create aggregated, anonymized forms of User-Provided Data provided by you and/or other users of the Services (“Anonymized Data”). For the avoidance of doubt, Anonymized Data shall not be considered “User-Provided Data” as defined in these Terms. Trials shall have the right to use any such Anonymized Data to optimize resources and support, research and development, automate processes that enable continuous improvement, performance optimization and development of new products and services, verification of security and data integrity, internal demand planning, and data products such as industry trends and developments, indices and anonymous benchmarking, in connection with its marketing, advertising, and promotional efforts and materials, and otherwise as it chooses in its sole discretion. You agree that Trials shall be the sole owner of all Anonymized Data.
15 Third-Party Services. The Services may contain links to third-party websites, mobile applications, services, or other resources on the Internet, including but not limited to companies in the pharmaceutical industry, medical technology industry, and other health-related industries, operators and prospective operators of clinical trials, sponsors, advertisers, and social media networks, and other websites, services, or resources may contain links to the Services (collectively, “Third-Party Services”). These links are provided solely as a convenience to you and not as an endorsement by us of any Third-Party Services or any content on a Third-Party Service. Such Third-Party Services and their information, materials, and content (“Third-Party Content”) are developed and provided by others. You should contact the applicable site administrator for any Third-Party Services if you have any concerns regarding such links or any content located on such Third-Party Services. We are not responsible for any Third-Party Services or any Third-Party Content and do not make any representations regarding the content or accuracy of any Third-Party Content or any other information or materials available on or through such Third-Party Services. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access or use any Third-Party Services or Third-Party Content, you do so at your own risk. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any Third-Party Content or any Third-Party Services.
16 Disclaimer of Warranties
(a) You understand that we cannot and do not guarantee or warrant that any Trials Content, any other files available for downloading from the internet, or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Services for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR TO YOUR USE OR DOWNLOADING OF ANY TRIALS CONTENT OR ANY OTHER MATERIAL POSTED OR AVAILABLE ON OR THROUGH THE SERVICES OR ANY THIRD-PARTY SERVICES.
(b) YOUR USE OF THE SERVICES OR ANY TRIALS CONTENT IS AT YOUR OWN RISK. THE SERVICES AND THE TRIALS CONTENT ARE PROVIDED ON AN "AS IS", “WITH ALL ITS FAULTS,” AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TRIALS NOR ANY OTHER TRIALS PARTY (AS DEFINED BELOW) MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR AVAILABILITY OF THE SERVICES OR THE TRIALS CONTENT. WITHOUT LIMITING THE FOREGOING, NEITHER TRIALS NOR ANYONE ASSOCIATED WITH TRIALS REPRESENTS OR WARRANTS THAT THE SERVICES OR ANY TRIALS CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES, THE TRIALS CONTENT, OR THE SERVER(S) THAT MAKES SUCH AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR THE TRIALS CONTENT WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
(c) TRIALS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT BY APPLYING TO PARTICIPATE IN A CLINICAL TRIAL OR MULTIPLE CLINICAL TRIALS, YOU WILL MEET THE ELIGIBILITY REQUIREMENTS FOR ACCEPTANCE INTO ANY GIVEN CLINICAL TRIAL OR THAT YOU WILLL BE ACCEPTED INTO ANY GIVEN CLINICAL TRIAL EVEN IF YOU DO MEET THE APPLICABLE REQUIREMENTS FOR ACCEPTANCE.
(d) TO THE FULLEST EXTENT PROVIDED BY LAW, TRIALS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
(e) THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17 Limitation on Liability
(a) SUBJECT TO SECTION 17(b), SECTION 17(c), AND SECTION 25, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL TRIALS OR ITS SUPPLIERS OR VENDORS, OR ITS OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, MANAGERS, MANAGING MEMBERS, DIRECTORS, AGENTS, AFFILIATES, SUPPLIERS, VENDORS, LICENSORS, CO-BRANDERS OR PARTNERS (COLLECTIVELY, "TRIALS PARTIES") BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY TRIALS CONTENT, ANY THIRD-PARTY SERVICES, ANY TRIALS CONTENT ON THE SERVICES OR ANY THIRD-PARTY SERVICES, NOR WILL ANY TRIALS PARTIES UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
(b) SUBJECT TO SECTION 17(c) AND SECTION 25, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE TRIALS PARTIES IN CONNECTION WITH ANY OF THE SERVICES EXCEED THE AMOUNT YOU HAVE PAID TO TRIALS FOR THE SERVICES, NOR WILL ANY TRIALS PARTIES UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
(c) THE LIMITATIONS OF LIABILITY SET OUT ABOVE (i) DO NOT APPLY TO LIABILITY RESULTING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DEATH OR BODILY INJURY CAUSED BY THE SERVICES AND (ii) DO NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18 Indemnification. To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless the Trials Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms, any User-Generated Information or Feedback you provide, or your access to, use or misuse of the Services or any Trials Content. We shall provide notice to you of any such claim, suit, or proceeding that triggers this indemnification obligation, and you agree to do the same by writing to Trials at firstname.lastname@example.org. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
19 Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. In the event that Section 20 is unenforceable, each Party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in New York, NY in any legal suit, action, or proceeding arising out of or based upon these Terms, or any Services or Trial Content provided hereunder.
20 DISPUTE RESOLUTION AND BINDING ARBITRATION.
(a) GENERALLY. IN THE INTEREST OF RESOLVING DISPUTES ARISING IN CONNECTION WITH THESE TERMS IN THE MOST EXPEDIENT AND COST EFFECTIVE MANNER, AND EXCEPT AS DESCRIBED IN SECTION 20(b)), THE PARTIES HERETO AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION AND THAT YOU AND TRIALS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. THIS AGREEMENT TO ARBITRATE DISPUTES INCLUDES ALL CLAIMS ARISING OUT OF OR RELATING TO ANY ASPECT OF THESE TERMS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER A CLAIM ARISES DURING OR AFTER THE TERMINATION OF THESE TERMS. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TRIALS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
(b) Exceptions. Despite the provisions of Section 20(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitration. Any arbitration between you and Trials will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online atwww.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Trials. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(d) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by a nationally-recognized courier service (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Trials' address for Notice is 388 bridge street #33F, Brooklyn, NY 11201. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought ("Demand”). The parties hereto will make good faith efforts to resolve the claim directly, but if the parties hereto do not reach an agreement to do so directly within 30 days after the Notice of Arbitration is received, you or Trials may commence an arbitration proceeding in accordance with the procedures set forth herein. All arbitration proceedings between the parties hereto will be confidential unless otherwise agreed by the parties hereto in writing. During the arbitration, the amount of any settlement offer made by you or Trials must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Trials in settlement of the dispute prior to the award, Trials will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
(e) Fees. If you commence arbitration in accordance with these Terms, Trials will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York, NY, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of the address associated with your Account. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Trials for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TRIALS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Trials agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications to this Arbitration Provision. If Trials makes any future change to this arbitration provision, other than a change to Trials’ address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Trials’ address for Notice of Arbitration, in which case your Account and all other rights to access or use any Services or Content will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
(h) Enforceability. If Section 20(f) is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
21 Equitable Remedies. You acknowledge that Trials would be irreparably damaged in the event of your breach or threatened breach of any of your obligations set forth in Sections 7, 9, and 12 above and you agree that, notwithstanding anything in Section 20 above to the contrary, in the event of such a breach or a threatened breach, Trials will be entitled to an injunction from a court of competent jurisdiction (without any requirement to post bond) to prevent such breaches of the Terms and to enforce specifically the provisions set forth in Section 7, 9, and 12 above in any action instituted in any court of the United States or any state thereof having jurisdiction over the parties and the matter, in addition to any other remedy to which we may be entitled, at law or in equity.
22 Your Compliance with Applicable Laws. You agree to comply with all applicable laws and regulations of the various states and of the United States in connection with your access and use of the Services and any Trials Content. You represent and warrant that you are using the Services and the Trials Content for your own personal or household use only.
(a) To You. We may provide any notice to you under these Terms by (i) sending a message to an email address you provide or (ii) by posting to the Services. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to email@example.com provided the receipt of any such email is acknowledged by a non-automated response, or (ii) by personal delivery, overnight courier, or registered or certified mail to Trialsco Inc., 388 bridge street #33F, Brooklyn, NY 11201. We may update the email or address for notices to us by posting a notice on the Services. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one (1) business day after they are sent. Notices provided by registered or certified mail will be effective three (3) business days after they are sent.
25 Important Note for New Jersey Consumers. If you are a consumer residing in New Jersey, then, notwithstanding anything to the contrary elsewhere in these Terms, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) in Section 17 above, the disclaimer of liability for any indirect, incidental, punitive, special, exemplary, or consequential damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code, and New Jersey Consumer Fraud Act); (b) in Section 17 above, the limitation on liability for lost profits or loss or misuse of data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) in Section 17 above, application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) in Section 18 above, the requirement that you indemnify us (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) in Section 19 above, the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
26 Copyright Infringement Matters.
(a) Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act ("DMCA"). Copyright-infringing materials found on the Services can be identified and removed via our process set out below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
(b) If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent with the written information specified below. Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. We do not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, we will respond by either taking down the allegedly infringing content or blocking access to it. We may contact the notice provider to request additional information. Under the DMCA, we are required to take reasonable steps to notify the user who posted the allegedly infringing content ("Alleged Infringer"). The Alleged Infringer is allowed under the law to send us a counter-notification. Notices and counter-notices are legal notices distinct from regular Trials-related activities or communications. We may publish or share them with third parties at our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
(c) To file a DMCA notice, the copyright owner must send us a notice in the form of a written letter by regular mail or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice. A DMCA notice must:
• Specifically identify the Trials Content or other information or material that the copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Services. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
• Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
• If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
• Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law";
• Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed";
• Be signed; and
• Be sent to our DMCA-designated agent at the following address email: firstname.lastname@example.org